P v Police HC Auckland CRI-2007-404-293

[2007] NZHC 1162

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-293

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 October 2007

Appearances: B J Hart for the Appellant

N R Williams for the Respondent

Judgment:      30 October 2007

(ORAL) JUDGMENT OF DUFFY J

Solicitors:   B J Hart P O Box 47016 Ponsonby Auckland for the Appellant

Meredith Connell P O Box 2213 Auckland for the Respondent

P V POLICE HC AK CRI-2007-404-293  30 October 2007

[1]      P   has appealed against a decision of Judge Everitt in the District Court at Manukau, dated 2 October 2007, refusing bail.   Mr P   has pleaded  guilty to  one  charge  of  selling  cannabis  and  one  charge  of  possessing cannabis for supply.

[2]      Although charges were initially laid indictably, these were withdrawn and the charges to which Mr P   pleaded guilty were laid summarily on 24 September

2007.   This is significant because under s 6(3) of the Misuse of Drugs Act 1975 where charges for selling and possession of supply of Class C drugs are laid summarily, the maximum sentence is a term of imprisonment not in excess of 12 months or a fine not in excess of $1000.  Where the same charges are laid indictably, the maximum sentence of imprisonment is not in excess of eight years.

[3]      Bail was refused in the District Court on the grounds that a custodial sentence was  almost  inevitable  and  because  there  sentencing  was  to  take  place  on

16 November.   The Judge stated that imprisonment is almost always imposed on people who sell cannabis for personal gain of the magnitude of Mr P  ’s offending.

[4]      I have a copy of the original summary of facts and caption sheet, which I believe is what the Judge was referring to when he gave his decision on bail.  I form this view because at [5] of his judgment, the Judge refers to a tariff that is imposed in almost all of “these cases” of one year’s imprisonment.  I do not believe that there is such a tariff when it comes to sentencing for charges of this type that are laid summarily.   This statement is consistent with case law that sets out the tariff for charges of this type that are laid indictably.  The original caption sheet showed the charges as laid indictably and referred to a maximum sentence of imprisonment of eight years.

[5]      The approach to take to bail pending sentence is provided for in s 13 of the Bail Act 2000.  That section provides that where a defendant pleads guilty, a Court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.   The onus is on the defendant to show why bail should be granted.  When considering the interests of

justice,  a  Court  may instead  of  considering  the  considerations  in  s  8  take  into account:

13        Exercise of discretion when considering bail pending sentencing

(3)       When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:

(a)      whether  the  defendant  is  likely  to  receive  a  sentence  of imprisonment:

(b)      the likely length of time that will pass before the defendant is sentenced:

(c)      the   personal   circumstances   of   the   defendant   and   the defendant's immediate family:

(d)      any other consideration that the court considers relevant.

[6]      If the defendant is unlikely to receive a sentence of imprisonment, this must count against a remand in custody.

[7]      A challenge on appeal to a bail decision is an appeal against the exercise of a discretion.  R v Keefe and Rymer CA162/04 22 July 2004 confirms that it is for an appellant to demonstrate that the Judge at first instance:

a)       made an error of principle, or

b)        failed to take into account all relevant matters, or c)    took into account irrelevant matters, or

d)       was plainly wrong.

[8]      In this case the Judge found a custodial sentence was almost inevitable.  That finding would have been appropriate if the convicted charges were laid indictably. But where the convicted charges are summarily laid, I not think that for someone like Mr P   a sentence of prison can be said to be almost inevitable.

[9]      Mr Hart, in helpfully prepared written submissions, has submitted that the Judge erred in fact and law.   The errors being a wrong assessment of the likely sentence to be imposed;   his determination that the recent amendments to the Sentencing Act 2002 would likely be of no effect in the circumstances of this case; and his decision being based on a copy of the caption summary as it read prior to the amendments made following the re-laying of the charges.

[10] Mr Williams for the Crown has sought to persuade me that, even though the convicted charges are summarily laid, the Judge has not erred in the exercise of his discretion and his judgment on bail should stand. Mr Williams has accepted that it is, given the passing of the Sentencing Amendment Act 2007, “on the cards” that Mr P could be sentenced to home detention or imprisonment. Nonetheless, he has also sought to argue that the Judge was correct when he said that a sentence of imprisonment was almost inevitable. I think those two points are at odds with each other and I think the more realistic assessment of the situation now is that it is on the cards that a sentence of home detention may be as likely as a sentence of imprisonment.

[11]     It may be through no fault of the District Court Judge that the wrong Police summary was in front of him – I am not even sure if it was – but I find it difficult to imagine that he would have described the tariff, for charges such as Mr P   faced, as being a sentence of 12 months imprisonment if he had been properly aware of the fact that the convicted charges were laid summarily and that this was the maximum sentence that could be imposed.   I have never known a sentencing tariff to be the equivalent of the maximum sentence of imprisonment.

[12]     I am satisfied in this case that the Judge has made an error of principle in that he has approached Mr P  ’s case on the basis he has pleaded guilty to indictably laid charges.   I think he has taken an irrelevant matter into account – indeed a mistaken matter – when he says the tariff is 12 months.   Here I think he can be described as being plainly wrong.   This being the case, I think there has been a wrongful exercise of discretion and it is appropriate for me to look at this matter afresh.

[13]     I have been told today that where a sentence of imprisonment is going to be

24 months or less home detention may well be imposed instead of imprisonment.  I do not think it appropriate for me to enter into all the issues as to what is the appropriate sentence for Mr P  .  But I am not convinced that he will inevitably receive a sentence of imprisonment.  Prior to being remanded in custody, he was on bail.  There is no suggestion that he has broken any bail condition or is in danger of transgressing the bail risks set out in s 8.  I, therefore, think it appropriate that he be granted bail.

[14]     I  formally  direct  that  Mr  P    is  to  be  granted  bail  on  the  following conditions:

i)        He reside at 20 Dillon Crescent, Otara.

ii)He is to surrender any current passport he may hold, if he holds one.

iii)      He is subject to a curfew at that address to run from 7.00 pm to

7.00 am.   Mr P  , during the hours of the curfew, is to make  himself  available  to  the  Police,  should  they  call  to inspect his compliance with the curfew, by presenting himself at the front door whenever the Police come to the address.

iv)      He is remanded to appear next again at the Manukau District

Court on 16 November 2007 for sentence.

[15]     All parties are given leave to come back on 24 hours notice if any issue should arise about this matter.

Duffy J