P v Police HC Napier CRI 2009-441-44

[2009] NZHC 2370

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2009-441-44

P

v

NEW ZEALAND POLICE

Hearing:         24 November 2009

Counsel:         B Webby for Appellant

R Collins for Respondent

Judgment:      24 November 2009

JUDGMENT OF SIMON FRANCE J (Appeal : Refusal to grant bail)

[1]      Mr P   appeals a refusal of the District Court to grant him bail.  Mr P   has pleaded guilty to injuring with intent to injure and assault with intent to injure.

[2]      The incident in question involved a group attack on two visitors in the streets of New Plymouth.   In the course of the assault one of the victims was rendered unconscious by numerous blows to the head and body.  Thereafter, all four persons turned their attention to the other victim who was again knocked to the ground with a number of punches.  The second victim was then kicked and punched on the ground a number of times before he managed to get away when members of the public

intervened.

P V NEW ZEALAND POLICE HC NAP CRI 2009-441-44  24 November 2009

[3]      In the interim, one of the four offenders returned to the unconscious first victim and proceeded to stamp on his head and chest several times.

[4]      The   incident   occurred   on   30 May 2009.      Mr P     pleaded   guilty   on

10 November 2009 when the matter was called in the Hastings District Court.  The Judge taking the pleas declined bail, and declined to order an appendix for the probation report.

[5]      The Judge recorded that it was street thuggery at a significant level, and despite the fact that Mr P   was a first offender, imprisonment was inevitable.

[6]      On appeal Mr Webby submits the Judge erred in declining bail and in not ordering an appendix report. Concerning the latter I observe no appeal lies from that decision and it is still open to counsel to seek such a sentence at sentencing which is to occur on 23 December. I do not address it further.

[7]      The points made on the substantive appeal are that the appellant is young (19), has a clean record and supportive parents. Options other than incarceration can be sought and the appellant should have been spared the harsh environment of prison until a decision was finally made. It is noted that one victim was hospitalised for a night but the injuries are at the lesser end of the spectrum. Mr P   had been on bail up till sentencing and had complied. He is finding prison hard and I am advised he had been on a watch situation.

[8]      Mr Webby advises that at this point it appears other co-offenders have been more leniently treated as regards either bail or home detention reports. However I do not have the information to act on that and doubt disparity is particularly significant in these circumstances. Mr Webby says there are facts that will be presented that cast a less culpable light on Mr P  ’s actions and at least remove the spectre of random thuggery by a group looking for a victim

[9]      It is acknowledged that the onus is on Mr P  , he having pleaded guilty.

[10]     Mr Webby has put the case well but in the end I have very little to add to the Judge’s comments.   I agree with his assessment. It is not for me to pre-empt sentencing so I content myself by observing I am not surprised by the Judge’s predictions. Perhaps armed with more information and the “benefit” of already a month in custody a judge may be persuaded away from jail, but at this stage I like the Judge see it as a very likely outcome.

[11]     This is an appeal from an exercise of discretion by an experienced Judge where the onus was from the outset on the offender to make a case for bail. It was certainly well available to the judge not to be satisfied that bail was in the interest of

justice.

Solicitors:

Simon France J

B Webby, Barrister, PO Box 7393, Taradale, Napier, email:  bria[email protected]