R v Gray HC Auckland CRI 2006-004-3200

[2007] NZHC 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-3200

THE QUEEN

v

MARK ANTHONY GRAY

Hearing:         21 August 2007

Appearances: B R Northwood for the Crown

R Mansfield for the Applicant

Judgment:      21 August 2007

(ORAL) JUDGMENT OF ALLAN J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland

Counsel:

Mr R Mansfield, PO Box 2674, Shortland Street, Auckland

R V GRAY HC AK CRI 2006-004-3200  21 August 2007

[1]      This is an application by Mr Gray  made pursuant to s 13 of the Bail Act for bail pending sentence.

[2]      Mr Gray was one of a number of accused persons who were tried in this Court between February and June 2007 over a period of some 4½ months.    The accused faced a variety of drug charges. The trial was the culmination of what was colloquially known as “Operation Leningrad”. Mr Gray was acquitted on several charges but was found guilty by the jury on a single charge of selling cannabis.

[3]      Mr Gray has been in custody on remand since 26 June. Until now it has not been possible to set a sentencing date but I have been able to ascertain this morning that the likely date will be Friday, 19 October, and I have so advised counsel.

[4]      Mr Mansfield accepts that his client must discharge the onus imposed by s 13(ii) which requires an applicant to show just cause why bail should be granted. Subsection (i) of s 13 provides that the Court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case.

[5]      In  most  instances  of  applications  under  s  13,  the  issue  is  whether  any custodial   sentence   ultimately   imposed   might   result   in   a   shorter   period   of confinement than will have been served on remand.   That situation does not arise here.  Mr Mansfield says, without any objection from Mr Northwood, that this is a case falling within band 2 of Terewi which would ordinarily call for a sentence of imprisonment of between two and four years.

[6]      Assuming for the moment that  a sentence of  two  years  imprisonment  is imposed, Mr Gray would not in ordinary circumstances be eligible for parole until he had served 12 months of that sentence.  There is no significant prospect in this case that he will have served on remand a greater effective sentence than that to which he will be sentenced in October.

[7]      Mr  Mansfield  also  advances  some  considerations  which  can  be  loosely termed humanitarian issues.  Mr Gray apparently wishes to attend to various matters relating  to  the  care  and  upkeep  of  his  residence  in  Mangere.     He  had  the responsibility of managing that property and there are  evidently some issues to which he needs to attend.

[8]      There is a further matter which relates to Mr Gray’s grandmother who, I am told, is now 100 years of age and in poor health.  Mr Gray wishes to visit her while she is still able to receive him and he is concerned that she may not be alive when he is released following the imposition of an appropriate term of imprisonment.

[9]      As to those matters, I am not persuaded that they are sufficient to justify the grant of bail, having regard to the provisions of s 13.  Mr Gray should have attended to issues relating to the care and upkeep of his property before the jury’s verdict was returned.  It is possible, I am sure, for him to arrange while on remand to have at least important aspects of the management of the property attended to.

[10]     His desire to visit his grandmother is understandable and Mr Gray has the Court’s sympathy as to that aspect but of itself that issue cannot tilt the balance which s 13 requires me to consider.  I am unable to determine that it would be in the interests of justice to grant bail under s 13.  Having said that, I accept that this was an application that was responsibly made and not without a certain amount of merit.  I have been greatly assisted by Mr Mansfield’s detailed and careful submissions.

[11]     The application is therefore dismissed.

[12]     Mr   Mansfield   has   raised   with   me   the   possibility   that   Mr   Gray’s grandmother’s condition may well deteriorate over the next two months.  Should that occur, he suggests that Mr Gray may well then have a proper case for the grant of bail for a period of, say, 24 hours or possibly over a weekend.  That will, of course, be a matter for the Judge who hears any such application and, of course, the Crown will be entitled to be heard upon it.  I feel it appropriate, however, to record that I have expressed the view to Mr Mansfield that there would, on the face of it, be

somewhat more substance in that application than I have found to exist in the present case.

C J Allan J