Parkinson v Police

[2014] NZHC 891

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2014-483-5 [2014] NZHC 891

UNDER

the Bail Act 2000

IN THE MATTER

of an appeal against the refusal to grant bail pursuant to Section 44 of the Bail Act

2000

BETWEEN

MANUEL WIREMU PARKINSON Appellant

AND

THE NEW ZEALAND POLICE Respondent

Hearing:	29 April 2014
Counsel:	S J Burlace for Appellant L C Rowe for Respondent
Judgment:	2 May 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 2 May 2014

at 10.30 am, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Wanganui

PARKINSON v THE NEW ZEALAND POLICE [2014] NZHC 891 [2 May 2014]

[1]      Mr Parkinson is a 20 year old male charged with: robbery; two counts of assault with intent to injure; being found unlawfully in an enclosed yard or area; breach of release conditions; and assault of a prison officer.

[2]      He has pleaded not guilty to all charges and elected a Judge alone hearing.

Procedural history

[3]      Bail was declined by Judge Cameron on 22 January 2014.  The appellant did not appeal against this decision, instead filing an application for release on electronically monitored (EM) bail to his father’s address.   That application was declined by Judge Matheson on 13 March 2014.

Alleged offending

[4]      The appellant faces the above charges as a result of two separate incidents. The first set of charges concern an assault with intent to injure and a robbery, both allegedly occurring on 24 December 2013. The victim was drinking with friends at a local hotel.   The defendant is said to have entered the hotel and asked the victim whether he had any allegiance to a gang, due to the colour of the hat he was wearing. Near to closing time, the victim is said to have gone outside, where he witnessed the appellant pushing an unknown female.  The victim approached the appellant, who is said to have turned and punched him approximately four times to the left side of his face.  The victim attempted to walk away and, as he did so, the defendant allegedly kicked him in the left calf area.   The victim attempted to flee and the appellant followed him with two associates and asked him for money.  The victim said he had no money.  The appellant allegedly punched the victim five to six times on the left side of his face, causing him to fall to the ground.   The appellant then took the victim’s wallet, which contained $120 in cash.

[5]      The second incident occurred on 9 January 2014.  The appellant was drinking at an address with the victim of this incident and a number of associates.   He allegedly kicked the victim in the right side of his head, close to his right eye in an unprovoked assault. The victim ran from the address and notified Police.  The Police

arrived and, after a search of the nearby area, located the appellant hiding on a neighbouring property.  That forms the basis of the charge of being unlawfully in an enclosed yard or area.

[6]      The appeal is against the exercise of a discretion.1    Thus the onus is on the appellant to demonstrate that the Judge made an error of principle, failed to take into account all relevant considerations, took into account irrelevant considerations, or was plainly wrong.2

History

[7]      The appellant has a lengthy criminal history.  Significantly, he committed the offences of injuring with intent to injure, common assault, assault with intent to injure and threatening to kill while on bail in respect of a charge of indecently assaulting a female.  He was convicted of all of that offending.  Upon his release on

19 December 2013, he failed to appear as directed on 24 and 31 December 2013, and now faces charges in relation to that.

The EM Bail decision

[8]      Judge Matheson declined to grant the appellant electronically monitored bail on the following grounds:  the EM bail report did not support the appellant’s father’s address as suitable, as the appellant had been released on EM bail to that address previously  and,  whilst  there,  had  threatened  his  father,  allegedly  damaged  the property and consumed alcohol and cannabis with associates, causing the father to withdraw consent; the EM bail report did not support release due to the appellant’s propensity for violence, his poor record of compliance with bail and e-bail, and his history of offending while on bail; his demonstrated unwillingness to comply with boundaries set by others (for example, while in custody he threatened to kill family members and cut the throat of his unit principal corrections officer); and committing an assault against a prison officer, thus demonstrating an inability to control himself

even in the most structured of environments.

1      May v May (1982) 1 NZFLR 165 (CA).

2      Dodd v R [2011] NZCA 490 at [26]–[27]; Hereora v R [2011] NZCA 491 at [19]–[20].

[9]      In addition, Judge Matheson adopted the reasons given by Judge Cameron in the original bail decision.  Those reasons were that: the onus was on the appellant to satisfy the court that bail ought to be granted;3 the appellant had a recent history of committing serious violence offences while on bail for a serious offence; the present offending allegedly began only five days after the appellant’s release from prison and while the appellant was subject to release conditions; the evidence against the appellant appeared relatively strong.

Grounds of appeal

[10]     The appeal is against Judge Matheson’s refusal to grant bail on the grounds that the Judge erred in not considering the entry of not guilty pleas and the time spent in custody pending trial; and that EM bail is technically feasible and the appellant’s father has consented to the appellant’s release to his address.

[11]     The appellant has not discharged the onus on him to show, on the balance of probabilities, that he will not, while on bail commit any offence involving violence against or danger to the safety of, any other person.  He has a demonstrable history of violent offending while on bail and the address proposed has been assessed as unsuitable.  While he denies having damaged his father’s property when previously released there on EM bail and claims it was some other person’s place that was damaged, that is not a persuasive factor.

[12]     On the basis of all of the above, it cannot be said that Judge Matheson’s

decision was plainly wrong.

[13]     Nor am I satisfied that Judge Matheson failed to take into account relevant considerations.  In declining EM bail, the Judge considered the likely length of time to hearing, the appellant’s pleadings and the fact that the appellant’s father had

ostensibly ‘consented’ to the appellant being released to his address.

3      Bail Act 2000, s 10.

Result

[14]     The appeal is dismissed.

Goddard J