R v Edwards

[2008] NZCA 109

IN THE COURT OF APPEAL OF NEW ZEALAND

CA159/2008
[2008] NZCA 109

THE QUEEN

v

EDDIE KAURANGA EDWARDS

Hearing:1 May 2008

(by telephone)

Counsel:G C McArthur for Appellant

S B Edwards for Crown

Judgment:1 May 2008 at 4. 30 pm 

JUDGMENT OF ELLEN FRANCE J

The appellant’s application for bail is granted.  The appellant is released on bail for the period until this Court delivers judgment on his appeal, subject to the following conditions:

1.That he resides at 1034 Hood Street, Mayfair, Hastings;

2.That he reports to the Hastings police station between the hours of 3 pm and 7 pm, Mondays and Fridays; and

3.That he not associate with or communicate with the complainant.

REASONS

1. The appellant pleaded guilty to charges of assault with a weapon, male assaults female and possession of an offensive weapon and to a summary charge of theft.  On 12 March 2008, he was sentenced to six months home detention and 100 hours community work and ordered to pay reparation in the sum of $2,014.00:  DC TAU CRI 2007-070-2699.

2. The appellant has now applied under s 70 of the Bail Act 2000 for bail pending the final disposition of his appeal on the grounds that the appeal has reasonable prospects of success and because the sentence is short the injustice of him serving it pending appeal is greater.  The appellant also says he was on bail prior to sentence with the condition he reside at the address now suggested as his bail address and there were no bail breaches.

3. Ms Edwards in her helpful submissions on this application points out that the changes made to the Crimes Act 1961 and to the Sentencing Act 2002 in 2007 have given rise to difficulties in determining the effect of an appeal on a sentence of home detention. In terms of s 399(1) of the Crimes Act, no sentence is “suspended” by reason of any appeal, unless the Court expressly so directs. However, since the amendments made by the Sentencing Amendment Act 2007 came into force, s 399(3) provides that on any conviction to which any appeal relates where the Court has sentenced the accused to, amongst other matters, home detention, “the term of the sentence shall cease to run on the day on which notice of appeal or of application for leave to appeal is given.”

4. By contrast, the relevant provisions of the Sentencing Act, particularly s 80ZB, suggest that time ceases to run on a sentence of home detention, relevantly, only when “the offender is released on bail pending the appeal”.

5. It seems unlikely given the provisions in the Sentencing Act that the intention was that an appeal would have the effect of immediately releasing offenders sentenced to terms of home detention.  However, as Ms Edwards submits, it may be that in practical terms there is no difference for the offender between a sentence being suspended and time ceasing to run.

6. Ms Edwards also raised an issue about the jurisdiction to grant bail given s 80A(5) of the Sentencing Act provides that a person sentenced to home detention is not “in custody” while serving that sentence.  The Court’s bail jurisdiction pending appeal is in s 70 of the Bail Act and that section applies where the appellant is in custody under a conviction and is appealing.  This matter was dealt in R v Topliss [2007] NZCA 327 where this Court said that similar provisions then in force in ss 6(5) and 35(5) of the Parole Act 2002 did not mean there was no jurisdiction to grant bail pending appeal.

7. These matters are apparently the subject of a proposal to Cabinet to clarify the position.

8. In these circumstances, the Crown does not oppose the application for bail.

9. For the appellant, Mr McArthur submits that there is an anomaly but that s 80ZB sensibly takes priority.  He is content to have the matter dealt with on the basis of his bail application.

10. Having personally considered the application pursuant to s 393(2)(d) of the Crimes Act, I am satisfied that it would be in the interests of justice in this case to grant bail (s 14 of the Bail Act).

11. The sole ground of appeal is that the appellant should have had a greater discount for the period of six months he spent on electronically monitored bail prior to sentencing.   The appellant will argue for the equivalent of a month for month discount.  That issue was dealt with by this Court recently in R v Tamou [2008] NZCA 88. This appellant will need to persuade the Court that the approach taken by the sentencing judge was not consistent with that endorsed in Tamou at [20] where the Court said it was “unhelpful” to single out individual items of mitigation “and ascribe a time period to them”. However, as the Crown acknowledges, given the length of the sentence and the likely length of time that will pass before the appeal is heard, there is a chance that the right of appeal will be rendered nugatory.

12. Importantly in this case, there is the unresolved issue of the effect of the appeal on the sentence of home detention.  Given all these circumstances and the parties’ approach to the application, bail should be granted on the conditions set out above.   In terms of those conditions, the appellant sought a residential condition but had no objection to the Crown’s suggested non-association condition.  The appellant would have preferred there be no reporting requirement but in my view a reporting condition is necessary and the end result is bail on less stringent conditions than would apply if the sentence of home detention was still running.

13. The appeal should be set down for a hearing as soon as possible after 12 June 2008 (that date reflects the availability of Mr McArthur).

Solicitors:

Crown Law Office, Wellington