Peniamina v Police HC Auckland CRI 2010-404-423

[2010] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-423

JOSHUA PRITCHARD PENIAMINA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 November 2010

Appearances: H Juran for the Appellant

K Lummis for the Respondent

Judgment:      30 November 2010

ORAL JUDGMENT OF WHITE J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Counsel       H E Juran, PO Box 38 030 Howick, Manukau 2145

PENIAMINA V NEW ZEALAND POLICE HC AK CRI 2010-404-423  30 November 2010

[1]      This is an appeal by Mr Peniamina against the decision of District Court Judge Blackie in the District Court at Manukau on 3 November 2010 refusing to grant bail pending the sentencing of Mr Peniamina on 28 January 2011 on a charge of, together with other persons, injuring with intent to injure under ss 189(2) and

66(1) of the Crimes Act 1961, to which he pleaded guilty.

[2]      As the undisputed summary of facts shows, the charge arose out of a gang brawl on the night of 1 August 2010 and involved Mr Peniamina and his co-accused, who are members of the Red Army street gang, consuming alcohol and attacking the victim and others, one of whom was killed by another person (not Mr Peniamina). When spoken to by the Police, Mr Peniamina admitted assaulting his victim and in explanation stated that he had “got really angry” that the victim had turned up to the party.  He said that “he lost it” and ran after the victim putting him on the ground and then repeatedly punching him with both fists while he was on the ground, wanting to knock him out.   It was put to him that he had kicked and stomped on the victim whilst he was on the ground and he stated that whilst he could not remember these actions, he could see himself kicking and stomping on the victim.

[3]      Mr Peniamina, having entered a plea of guilty, was convicted on the charge in the District Court at Manukau on 3 November 2010.  Bail pending sentence on 28

January 2011 was declined by the District Court Judge on the following grounds:

[9]       You are subject to s 13 of the Bail Act and therefore bail would not normally  be  available  to  you  on  charges  of  this  nature  unless  I  was persuaded that would be in the interests of justice for you to be released pending sentence.

[10]      There are several areas which cause me concern.   First of all this was, again, another instance of meaningless violence and you have a propensity and a background history of violence, not only in the Youth Court, but also now in the adult Court.  In the Youth Court you appeared on three separate occasions charged with assault and since you have been in the adult Court you have appeared on being intoxicated in charge of a firearm, unlawfully possessing a firearm, fighting in a public place and behaving in a disorderly manner.  You have been sentenced to community work and you have  already  appeared  before  the  Court  for  breaching  the  order  for community work.

[11]     Therefore it seems that any application for you to be sentenced to some form of community-based sentence, including home detention, on this

charge will be regarded with some scepticism, particularly having regard to your record and your apparent propensity for violence.  That would not be something which would be conducive to a community-based sentence.

[12]      Also, I am advised that since you have been on remand awaiting the disposing of these proceedings you have breached bail on two occasions.  I accept that that is now disputed by you, however when you appeared on 26

October 2010 on alleged breach of bail, you were remanded in custody and have remained in custody until today’s date.  That, of course, was at a time

when no plea was entered and no conviction was recorded.

[13]     In my view there is every likelihood that, in your case, a custodial sentence will be imposed.   Therefore I do not consider it appropriate to release you on bail, neither do I consider it to be in the interests of justice that I do so.  That means that the remand between now and the sentencing date on 28 January 2011 will be in custody.

[4]      In support of the appeal, Mr Juran, counsel for Mr Peniamina, submitted:

a)       While it was a serious offence of violence it was not the most serious of its type and Mr Peniamina had made full and frank admissions.

b)In terms of s 13 of the Bail Act 2000 a term of imprisonment was not inevitable:  the conduct of the victim might be a specific mitigating factor, as was the age of Mr Peniamina who is not yet 20; a sentence of home detention or possibly community detention would be open to the Court.

c)       The sentencing date of 28 January 2011 is some considerable time away.

d)The appellant’s personal circumstances were that he lived with his mother  and  very  young  brother  and  wished  to  find  employment having finished a course at the Manukau Institute of Technology.

e)       It  was  accepted  that  the  District  Court  Judge  was  exercising  a statutory discretion under s 13, but the Judge did not consider any mitigating   factors   concerning   the   offence,   in   particular   Mr Peniamina’s youth and early guilty plea.

f)        The  District  Court  Judge  also  failed  to  consider the  effect  of  the length of the time to sentencing on Mr Peniamina or his family, or his personal circumstances.

g)       The District Court Judge therefore failed to exercise his discretion as to whether to grant bail properly.

h)Strict  bail  conditions  could  meet  concerns  about  Mr  Peniamina’s reliance on alcohol and drugs.

i)         Mr Peniamina denied breach of his bail.

[5]     For the Crown, Ms Lummis, acting responsibly in accordance with her obligations to the Court, drew attention to the fact that, as Mr Peniamina is aged 19, s 15 rather than s 13 of the Bail Act is applicable.  She submitted, however, that s 15 was subject to s 142(4A) of the Criminal Justice Act 1985 which enabled the Court to direct that a young person be detained in prison if in its opinion no other course is desirable having regard to all the circumstances.   Ms Lummis provided the Court

with a copy of the decision in Ismail v New Zealand Police[1]  which considered the

relevant statutory provisions and the correct approach to them.

[1] Ismail v New Zealand Police HC Auckland CRI-2009-004-022723, 7 January 2010.

[6]      Ms Lummis then submitted that, while this Court would need to consider the question of bail afresh because the District Court Judge had not taken into account the  relevant  statutory  provisions,  the  circumstances  of  the  present  case  did  not warrant the grant of bail in that:

a)       As the District Court Judge correctly held, a sentence of imprisonment was a real likelihood; and

b)Mr Peniamina’s bail history showed a recent history of offending whilst on bail.

[7]      In reply Mr Juran did not take issue with the Crown’s submissions relating to the  relevant  statutory provisions.    He  submitted,  however,  that  Mr  Peniamina’s offending whilst on bail was minor and that any concerns could be met by the imposition of strict bail conditions.   He also noted that Mr Peniamina denied any breach of bail, but did not dispute his bail history.

[8]      In  considering  the  question  of  bail  in  this  case  afresh,  I  start  with  the applicable principles conveniently summarised by Stevens J in Ismail v New Zealand Police:

Applicable Principles

[12]     When considering the issue of whether to grant bail to a defendant over  the  age  of  17  but  under  20  years,  the  Court  must  start  with  the provisions of s 15 of the Bail Act 2000.  Section 15 relevantly provides:

15       Granting of bail to defendant under 20 years of age

(1)If a court remands or commits for trial or for sentence a defendant who appears to the court to be of or over the age of 17 years but under the age of 20 years, it must release the defendant on bail or otherwise subject to such conditions as it thinks fit.

(2)      Subsection (1) is subject to—

(a)    sections 7 (except subsection (5)), 9 to 12, and 16 and

17 of this Act; and

(b)   subsections  (4A)  and  (4B)  of  section  142  of  the

Criminal Justice Act 1985,—

but no other enactment.

...

[13]      Section 15 creates a statutory presumption in favour of granting bail. However, it does not operate as a complete bar on the refusal of bail in appropriate cases.  The use of the words “or otherwise” arguably indicates that there is still an element of discretion available to the  Court.   This approach is supported by s 142(4A) of the Criminal Justice Act 1985 which provides the Court with a discretion to refuse bail in certain circumstances where the Judge is satisfied that “no other course is desirable”.

[14]      Section 142(4A) of the Criminal Justice Act provides:

142     Special provisions as to young persons remanded or committed for trial or sentence

(4A)     Despite section 15 of the Bail Act 2000, the court may in any case direct that  the  person be detained in  a prison if in its opinion no other course is desirable, having regard to all the circumstances.

[15]     Accordingly, in a case such as this a Judge is able to determine the merit of any application according to criteria stipulated in s 8 of the Bail Act. But in so  doing, the Judge  operates  against the policy contained in the amalgam of s 15(1) of the Bail Act and s 142(4A) of the Criminal Justice Act.    It  seems  clear  that Parliament  was seeking in  these provisions to mandate a policy of keeping persons under the age of 20 years who are awaiting trial out of prison in order to, hopefully, keep them away from associating with convicted criminals.

[16]     A number of cases before the High Court have considered these provisions: see R v Brass-Toko HC ROT CRI 2009-063-5331 7 December

2009, Rutene v Police HC ROT CRI 2009-463-99 6 November 2009, Rewi v Police HC ROT CRI 2009-463-93 28 October 2009, Winitana v Police HC ROT CRI 2009-463-98 29 October 2009 and Love v Police HC CHCH CRI
2008-409-16 7 February 2008.  These cases make it clear that, while there must be sufficiently strong reasons to rebut the presumption under s 15, the
Court has a discretion to refuse bail to a person under the age of 20 years if the Judge is of the opinion that no other course is desirable having regard to all the circumstances: see for example Love v Police.

[17]     One circumstance where a remand in custody may be seen as appropriate is where there has been repeated re-offending whilst on bail, or repeated breaches of bail.   In Brass-Toko, Harrison J was satisfied that he had no alternative except to remand the applicant in custody given that she was “plainly not prepared to abide by conditions imposed by the District Court for the purpose of ensuring that she does not re-offend while on bail”.

[9]      I note that the relationship between ss 15 and 13 has also been considered in other decisions of this Court: van den Ouden v New Zealand Police:[2]

[2] van den Ouden v New Zealand Police HC Christchurch CRI-2010-409-000153, 20 August 2010.

[10] It is well established that s 15 has primacy over s 13. That has been confirmed  in  a  number  of  High  Court  decisions:  Olsen  v  Police  HC Auckland R52/02, 30 April 2002, Heath J; Tiopira v Police HC Dunedin CRI-2008-412- 000031, 30 July 2008, Fogarty J; Greenwood v Police HC Nelson CRI-2007-442- 000009, 23 August 2007, Wild J; R v McGuire & Ors HC Hamilton CRI-2006-019- 000617, 28 June 2007, Asher J.

[11] In McGuire, Asher J went so far as to hold that s 13 has no application when considering bail for a person under 20 awaiting sentence. However, it does seem on the authority of Greenwood, that the factors identified in s 13(3) may still be taken into account as part of the overall circumstances.

[12] Accordingly, I start from the proposition that I am required to release

the appellant on bail by virtue of the provisions of s 15(1).

[13] Having established that position, I must assess whether bail is however inappropriate because there is no real alternative to detention in custody. It is for the Crown to persuade me that detention in custody is required if I am to decline bail.

[14] On the authority of Greenwood I am of the view that I am entitled to have regard to the circumstances or factors identified in both ss 8 and 13, including the likelihood of a custodial sentence and the fact that the sentencing is not until 26 November.

[10]     Adopting the approach of Stevens J in Ismail, Harrison J in Brass-Toko and French J in van den Ouden, I am satisfied that Mr Peniamina should be detained in prison because no other course is desirable having regard to all the circumstances. The relevant circumstances are:

a)       The serious nature of the offending, Mr Peniamina’s propensity for violence shown by his previous offending, and the absence of any real mitigating circumstances other than his guilty plea, which means that a sentence of imprisonment is likely to be imposed.

b)While Mr Peniamina is 19 years old, he will turn 20 in March next year.   His previous offending shows that he is not a young man of good character who has just committed his first offence.

c)       Mr  Peniamina’s  bail  history  shows  a  recent  history  of  offending whilst  on  bail,  including  breach  of  community  work,  fighting  in public and the current offence.

d)The Police are concerned that Mr Peniamina and his co-offenders pose a risk to the family of the deceased and that Mr Peniamina is a high risk, repeat offender when around a social environment.  He is prone to drinking too much, acting like a bully and ultimately committing crimes of violence.

e)       The risks to the community from Mr Peniamina outweigh the fact that he will need to be in prison until his sentencing on 28 January 2011.  I

do not consider that the imposition of strict bail conditions would avoid these risks in this case.

[11]     Having considered Mr Peniamina’s application for bail afresh in light of the relevant statutory provisions, I have decided that the Crown has satisfied me that bail

should not be granted.  The appeal is therefore dismissed.

D J White J