Peck v Police - [2015] NZHC 23

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2015-442-1 [2015] NZHC 23

SONNY WHERO STEVE PECK Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 22 January 2015 (via AVL)

Counsel:

C S Lawes and M J Vesty for Appellant
E J Riddell for Respondent

Judgment:

23 January 2015

JUDGMENT OF BROWN J

Background

[1] The appellant is charged with the following offences: (a) aggravated robbery;1
(b) kidnapping (x3);2

(c) participates in an organised criminal group;3

1      Crimes Act 1961, s 235. Maximum penalty of 14 years’ imprisonment.
2      Section 209. Maximum penalty of 14 years’ imprisonment.
3      Section 98A. Maximum penalty of 10 years’ imprisonment.

PECK v NZ POLICE [2015] NZHC 23 [23 January 2015]

(d) aggravated robbery;4

(e) assault with intent to injure (x2);5

(f) injuring with intent to injure;6 and

(g) threatening to do grievous bodily harm.7

[2] The charges arise from an alleged home invasion by the appellant and three other persons on 6 October 2014. The summary of facts alleges that the appellant punched victim C several times in the face and that the appellant participated in a prolonged assault on victim A during which he punched victim A to the head on four to five occasions, forced him up against a wall, presented a knife to his throat and made threats to kill victim A.

Previous EM bail applications

[3] The appellant’s first application for EM bail came before Judge A A Zohrab on 11 November 2014. Because it is material to the argument advanced on behalf of the appellant, I note the observations of Judge Zohrab at [7] concerning the strength of the case against the appellant:

[7] The defendant is entitled, of course, to the presumption of innocence. Mr Lawes has taken issue with the tone of the EM bail assessor’s report, in particular comments such as statements which appear in a fairly sort of black and white way, that he was the person who carried out the assaults and threats on the night in question. Obviously, in terms of the assessment of the strength of the case, that is a factor to be taken into account and on the face of it, the case against the defendant is tolerably strong. Clearly there has been a serious incident, the issue is whether or not they can prove beyond reasonable doubt that it was this defendant applicant who was involved in it and, on the face of it, it is a tolerably strong case against the defendant.

4      Section 232(1)(a). Maximum penalty of 14 years’ imprisonment.
5      Section 193. Maximum penalty of three years’ imprisonment.
6      Section 189. Maximum penalty of 10 years’ imprisonment.
7      Section 306. Maximum penalty of seven years’ imprisonment.

[4] However, given that the address that was then under consideration was technically suitable for EM bail, the Judge intimated that he would be minded to grant the application subject to confirmation that one of the residents, highlighted as an issue in the suitability report, was no longer living at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Peck v Police

Details

AGLC: Peck v Police [2015] NZHC 23
Case: [2015] NZHC 23
Decision Date: 23 January 2015

CaseChat Overview and Summary

In Peck v Police, the appellant, Sonny Whero Steve Peck, appealed against the decision of Judge Grace to deny his application for electronically monitored bail. The appellant was charged with multiple serious offences, including aggravated robbery and kidnapping, arising from an alleged home invasion on 6 October 2014. Judge Grace declined the bail application based on the seriousness of the alleged offending, the appellant's gang affiliations, and concerns about the suitability of the proposed bail address.

The appellant advanced four grounds of appeal, arguing that Judge Grace erred in concluding there was a strong case against him, in considering his gang affiliations, in assessing the risk of re-offending while on electronically monitored bail, and in finding the proposed bail address unsuitable due to the presence of certain occupants. The court addressed each ground, finding that Judge Grace did not err in concluding that there was a strong case against the appellant, as the assessment was based on the Summary of Facts and was not clearly erroneous. The court also found that Judge Grace appropriately considered the appellant's gang affiliations and the proximity of the proposed bail address to the complainants, which were legitimate factors under the Bail Act 2000. Finally, the court held that the presence of certain occupants at the proposed bail address was a valid consideration, even if it was not determinative.

The court ultimately dismissed the appeal, holding that Judge Grace's decision to deny electronically monitored bail was not erroneous and did not warrant reconsideration. The decision underscores the importance of considering the seriousness of the alleged offending, the accused's affiliations, and the proximity to complainants when determining whether to grant electronically monitored bail.

Orders