Parsons v Police HC Auckland CRI 2006-004-1337

[2007] NZHC 1600

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-1337

DAVID PARSONS

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 February 2007

Appearances: P H H Tomlinson for Applicant

E P Priest for Respondent

Judgment:      9 February 2007

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Auckland

PARSONS  V POLICE HC AK CRI 2006-004-1337  9 February 2007

[1]      David Parsons, who is currently serving a sentence of two years nine months imprisonment for manufacture of a class B drug, to expire in December this year, applies under s 16 of the Bail Act to be granted bail in respect of offences alleged to have been committed while he was on parole and in respect of which he is presently remanded in custody. I am advised that he applies as he does because the Parole Board, when making an order for his final recall on 26 January this year, invited that course.

Context

[2]      On 25 March 2004 Mr Parsons was sentenced in this Court to the two year, nine month term for manufacture of a class B controlled drug. At some point he was released on parole and, I am told, responded encouragingly.

[3]      On 30 October 2005, however, Mr Parsons was apprehended in Pitt Street, Auckland driving a 1987 Holden, which had been unlawfully taken on 2 October and apparently used in an aggravated robbery. He told the police when apprehended that he had purchased the car from a man called Eugene from a Whitford address four days previously. He did not then give the full name of the man (his counsel is now able to do that, should that assist). He was charged alternatively with unlawfully taking the car or receiving it and, without entering any plea, was remanded either immediately or eventually to 26 January 2006.

[4]      Before 26 January the police made Mr Parsons’ counsel aware that a search of the  boot of the  car  had  disclosed  elements of a  clandestine  drug  laboratory, including liquids; and on the front seat a black bag containing 20 snaplock bags, commonly used to package and sell methamphetamine. The police said that when Mr Parsons next appeared he would be charged with manufacturing methamphetamine, possessing it for supply and possessing a precursor substance, toluene. His counsel, as he has confirmed to me, told Mr Parsons what was impending.

[5]      On 26 January 2006 Mr Parsons did not appear and he was not apprehended until 16 December, on a search  in Pukekohe under s 18 of the Misuse of Drugs Act. He  then,  so  the  police  say,  produced  a  temporary  paper  driver’s  licence  as

identification, which turned out to be that of an associate. Presently no fresh charge has resulted, though white crystals discovered are being examined by the ESR. Be that as it may, he was remanded in custody; and today to a preliminary hearing on 23

April with the prospect of trial in this Court perhaps in the latter part of this year.

[6]      Returning then to his present status, on a date in March 2006 the Parole Board made an order for Mr Parsons’ interim recall to complete the balance of his sentence. His sentence had ceased to run for nine months while he was at large in breach of parole with the result that his release date is now in December this year. However, his counsel tells me, and I accept that, though the Parole Board on 26

January this year made an order for final recall, it invited this present bail application to allow an earlier release date to be considered.

Conclusions

[7]      Under s 7, putting aside Mr Parsons’ status as a sentenced prisoner, he is entitled to be released on reasonable terms and conditions for these present offences unless there is just cause for his continued detention and the two issues of concern are (i) whether, as s 8(1)(a) says, if he were granted bail he might fail to appear; and (ii), under s 8(1)(c), whether there is any risk that he might offend on bail.

[8]      The second of those has to be of concern. In October 2005, while Mr Parsons was on parole for a manufacturing offence, he was apprehended and charged with a further such but more inherently serious offence, involving a class A, not a class B, drug. He denies that offence and is entitled to the presumption of innocence. But for the confined purpose of this application it cannot be said that the case against him lacks  strength.  On  his  own  admission,  he  had  possessed  the  car  in  which  the elements of the clandestine laboratory and snaplock bags were found, for four days. The risk that  he might offend  in such a way again, if released,  cannot  then be discounted. It must be regarded as distinctly possible.

[9]      Secondly, Mr Parsons showed last year a propensity to flight, when faced with the prospect of the present charges, despite the discipline of parole and bail. Nor did he bring that to an end by appearing voluntarily. He had to be apprehended and

that appears to have happened incidentally on a search under the Misuse of Drugs

Act.

[10]     I am invited, however, despite these evident risks, to accept that they have since dissipated. Mr Parsons’ father, and he is present in Court today, I am told suffers  leukaemia.  Mr  Parsons’ partner,  and  she  is also  present,  is  four  months pregnant and is the complainant in a rape trial in April. These are strong reasons, it is contended, why Mr Parsons will now comply with terms of bail should they be imposed. I cannot, however, accept that they are sufficient by themselves.

[11]     Apart from anything else, it is of concern that two addresses that Mr Parsons has  so  far  offered  have  proved  unacceptable  to  the  owners  or  occupants.  It  is intended now that he live at a third address in Tauranga, making the offer of work in Auckland supporting his application academic. But that is of concern in itself. It is from a person himself presently facing charges. Despite then the very real personal reasons why Mr Parsons seeks bail, so closely shared by members of his immediate

family, I must decline his application.

P.J. Keane  J