R (CA380/2012) v The Queen

[2012] NZCA 358

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF APPELLANT UNTIL THE FINAL DISPOSITION OF TRIAL.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA380/2012 [2012] NZCA 358

BETWEEN  R (CA380/2012) Appellant

ANDTHE QUEEN Respondent

Hearing:         19 July 2012

Court:            O'Regan P, Potter and MacKenzie JJ Counsel: V C Nisbet for Appellant

M L R Davie for Respondent

Judgment:      8 August 2012 at 11 am

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BOrder   prohibiting   publication   of   names,   addresses   or   identifying particulars of appellant until final disposition of trial.

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REASONS OF THE COURT

(Given by MacKenzie J)

R (CA380/2012) V R COA CA380/2012 [8 August 2012]

Introduction

[1]      This is an appeal against the refusal of electronically monitored bail.

Background

[2]      The   appellant   was   arrested   following   a   search   of   her   home   on

20 March 2012.     Police  found  four  grams  of  methamphetamine,  14 firearms, ammunition and explosives, a stun gun, a quantity of cannabis, over $750,000 in cash and a sophisticated security surveillance system.   She has been charged with possession of methamphetamine for supply, possession of cannabis for supply, and

20 counts of possession of firearms and explosives.  We were advised by counsel for the respondent that further charges are likely.

[3]      Section 16 of the Bail Act 2000 applies.  Because the appellant has previous convictions for drug dealing offences, bail could be granted only by the High Court.

The bail decision

[4]      Collins J considered the appellant’s application for electronically monitored bail on 20 June 2012.  The Judge noted that the proposed place of residence was the home  of  a  friend,  and  her  11 year  old  daughter.    The  friend  had  no  concerns regarding her safety or the safety of her daughter.   The address was technically feasible for electronically monitored bail.

[5]      Collins J considered the three factors in s 8(1), namely the risks of failure to appear, of interference with witnesses or evidence, and of offending on bail.   He noted the police concerns of a flight risk, and that the appellant has one conviction for failing to answer District Court bail.  The Judge accepted that there may be a risk that the appellant would not answer bail but said that this factor by itself would not persuade him to decline her application.  He noted that there is no basis for concern as to the risk of interference with witnesses or evidence.   The Judge noted, and described as well founded, police concerns that there is a strong likelihood of the appellant offending while on bail.  He assessed the appellant as being at real risk of

lapsing back into drug offending and because of that assessment, declined her application for bail.  The Judge did, however, express concern about the length of time to trial, which he noted would probably not occur until mid 2013.  He granted leave to the appellant to return to Court in six months time to enable her to persuade the Court that there are sound reasons for granting electronically monitored bail at that stage to enable her to prepare for trial.

Submissions

[6]      Mr Nisbet submits that the Judge’s concern about offending while on bail could have been addressed by the imposition of bail conditions, such as a condition allowing testing for the consumption of illicit drugs.   He noted that random drug testing of the appellant in custody had produced a clear result.  He submitted that a potential risk that the appellant may lapse back into drug offending if granted bail is not decisive as just cause for continued detention.   He submitted that the risk of reoffending is reduced by the fact that the co-accused, who had been released on bail, is now in custody following a breach of that bail.  He submitted that electronic monitoring, and a condition that the appellant surrender her passport, would mitigate the  flight  risk.    As  to  the Arms Act  1983  charges,  counsel  submitted  that  the appellant’s co-accused has accepted ownership of the firearms and that the relatively small quantities of methamphetamine and cannabis found indicate relatively low level offending.

[7]      Mr Davie  for the respondent  submitted  that  the appellant,  to  succeed  on appeal, must demonstrate that in the exercise of his discretion, the Judge made an error of principle, or failed to take into account all relevant matters or took into account  irrelevant  matters,  or  was  plainly  wrong.    Counsel  submitted  that  the decision to refuse bail but to allow the appellant to return to the Court in six months represented, if anything, a generous response on the Judge’s part and it would have been open to the Judge to decline bail altogether.  He pointed to the strength of the Crown  case,  the  length  of  sentence  likely to  be  imposed  if  the  appellant  were convicted, and the likelihood that the appellant may have access to significant sums of money as creating a significant flight risk.   He submitted that the scale of the offending, and the presence of weapons and surveillance equipment at the property

give rise to a risk that the appellant will reoffend by drug dealing if granted bail. This risk will increase significantly if the appellant uses methamphetamine as she has habitually done.

Discussion

[8]      As this Court confirmed in Hereora v R,[1] an appeal against the refusal of bail is a challenge to the exercise of a discretion by a Judge. The appellant must establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong.  We do not consider that the Judge has erred in any of those respects. Two of the s 8(1) risks were potentially relevant, the flight risk and the risk of offending on bail.  The Judge gave little weight to the potential flight risk.  That was, if anything, generous to the appellant, given the factors highlighted by Mr Davie. As to the risk of reoffending, the Judge’s assessment of that risk cannot be said to have led  to  a  decision  which  was  plainly  wrong.    The  circumstances,  including  the presence of surveillance equipment, numerous firearms, and a very large sum of money, suggest a substantial drug dealing operation.  This was sufficient to justify a conclusion that there was a significant risk that the appellant might reoffend, by using or dealing in drugs, in a way that could not be sufficiently addressed by conditions of bail.

Result

[1] Hereora v R [2011] NZCA 491.

[9]      For these reasons, we consider that none of the grounds for this Court to interfere with the exercise of discretion by the Judge have been made out.   The

appeal is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent