P v Police HC Invercargill CRI 2010-425-9

[2010] NZHC 1023

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-425-9

BETWEEN  P

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 May 2010

Counsel:         J Fraser for Appellant

K Siave for Respondent

Judgment:      11 May 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr P   appeals against refusal of bail pending sentence.

[2]      He is charged with dishonestly getting into a vehicle, contrary to s 226(2) of the Crimes Act 1961, and intentionally damaging the vehicle, contrary to s 269(2)(a). To these charges he pleaded guilty when called on 27 April.  He was remanded until

23 July for sentence.  He sought bail, which the police did not oppose, but it was refused, the Judge reasoning that a sentence of imprisonment is probable.

[3]      Mr P   is aged 21.  He has some 27 convictions since 2005.  They include seven for burglary, one for theft, two for intentional or wilful damage, and five for breach of community work or conditions of supervision.  He has previously served one short sentence of imprisonment.  The most recent offence was committed on 17

August 2008, for dishonest use of a bank card.   He was sentenced to two months home detention on 15 September 2009 and was subject to post-release conditions at

the time of this offence, on 20 March 2010.

P V NEW ZEALAND POLICE HC INV CRI 2010-425-9  11 May 2010

[4]      The facts were that Mr P   and an associate took the vehicle without the permission of its owner and went on a joy ride.   When the car broke down they smashed up the vehicle, breaking all its windows and lights.

[5]      Section 13 of the Bail Act applied.   The Court must not grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice to do  so,  and  the  onus  is  on  the  defendant  to  show  why bail  should  be  granted. Relevant considerations are the likelihood of a sentence of imprisonment, the likely length of time until sentence, and the personal circumstances of the defendant and his immediate family.  Mr Fraser submitted that the Court ought grant bail because to deny it would be to pre-empt the sentencing decision.  Mr P   might obtain a positive pre-sentence report, and strict bail conditions could manage his risk.  There is  force  in  these  submissions,  but  that  is  not  the  statutory  test.     Rather,  if imprisonment is unlikely that fact must count against a remand in custody.

[6]      The onus is on Mr P   to show that the Judge was wrong to deny bail. That question comes down to the Judge’s assessment of the likelihood that imprisonment will result.

[7]      Mr P   deposes that he had just successfully completed the sentence of home detention and is complying with post-detention conditions.   I observe that those require that he undergo alcohol and drug assessment and any ongoing counselling or treatment.   He committed the offences with a co-offender who is facing a larger number of charges relating to the same incident yet was granted bail. He suffers from depression, and it would be in his best interests to remain in the care of his mother pending sentencing.

[8]      I regret to say that I share the Judge’s assessment that imprisonment is likely. Although the facts of the instant offences are not particularly serious, Mr P   appears to have reached the point where he may require imprisonment if he is to be deterred and if the community is to be protected from him.  The offences indicate a lack of self-control and poor choice of associates.   It is a significant aggravating feature that they occurred while he was subject to release conditions.   That fact,

coupled with his history of failure to comply with terms of community-based sentences, indicates that the Court may have few other options.

[9]      The maximum sentence for the intentional damage offence is seven years imprisonment, and he is not to be sentenced until July.  Although Mr P   would undoubtedly receive only a short sentence of imprisonment, a sentence of less than six months would seem unlikely.

[10]     For these reasons Mr P   has not shown that the Judge was wrong.  The appeal must be dismissed.

Miller J

Solicitors:

John K Fraser Law Limited for Appellant

Crown Solicitor’s Office, Invercargill for Respondent