R v Leigh - [2014] NZHC 2375

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-40 [2014] NZHC 2375

THE QUEEN

v

TRIXIE ROSINA LEIGH

Hearing: 29 September 2014

Counsel:

J E Tarrant for the Crown
S Nepe for the Defendant

Judgment:

29 September 2014

JUDGMENT OF BROWN J

Solicitors: Crown Solicitor, Hamilton
Counsel: S Nepe, Hamilton

R v LEIGH [2014] NZHC 2375 [29 September 2014]

[1] The appellant was convicted by a jury on four charges of dishonestly using a document to obtain a pecuniary advantage. Her offending related to dishonestly obtaining funding from the Ministry of Education for her early childhood centre.

[2] On her conviction her application for bail was declined by Judge E M Thomas in the District Court at Hamilton on 22 August 2014 and she was remanded in custody until sentencing on 28 October 2014. She now appeals from the decision declining to grant her bail pending sentencing.

Bail pending sentence

[3] Section 13 of the Bail Act 2000 relevantly provides:

13 Exercise of discretion when considering bail pending sentencing

(1) If a defendant is found guilty or if a defendant pleads guilty, 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 to do so.

(2) The onus is on the defendant to show cause why bail should be granted.

(3) When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:

(a) whether the defendant is likely to receive a sentence of imprisonment:

(b) the likely length of time that will pass before the defendant is sentenced:

(c) the personal circumstances of the defendant and the defendant's immediate family:

(d) any other consideration that the court considers relevant.

(4) If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.

Grounds of appeal

[4] The notice of appeal dated 30 August 2014 states the following grounds: (a) Wrong in fact and law.

(b)Particularly having regard to the fact appellant over 70 with no history and significant health problems which require attendance at specialist appointments. Also main support for family caring for grandchildren and assisting family who are due to travel overseas.

Approach to appeal

[5] Section 44 of the Bail Act 2000 governs the right to appeal to the High Court against a bail decision of the District Court. Section 44(6) states that such an appeal is by way of rehearing.

[6] In Dodd v R1 the Court of Appeal affirmed the applicable principles as stated in B v Police (No 2):2

[26] Prior to the enactment of the Bail Act, this Court described the principles to be applied when considering an appeal against the grant of bail in B v Police (No 2) in these terms:

[6] …Someone who appeals a refusal of bail and is unable to point to a material change…

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 R v Leigh

Details

AGLC: R v Leigh [2014] NZHC 2375
Case: [2014] NZHC 2375
Decision Date: 29 September 2014

CaseChat Overview and Summary

The appeal concerns the decision of Judge Thomas to decline the appellant's application for bail pending sentencing. The appellant, Trixie Rosina Leigh, was convicted on four charges of dishonestly using a document to obtain a pecuniary advantage, relating to the dishonest obtaining of funding from the Ministry of Education for her early childhood centre. Judge Thomas declined the appellant's bail application on 22 August 2014, and she was remanded in custody until sentencing on 28 October 2014. The appellant appeals against the decision declining to grant her bail pending sentencing.

The legal issues before the court were whether the decision to decline bail was contrary to principle, whether the judge failed to consider all relevant matters or took into account irrelevant matters, or whether the decision was plainly wrong. The appellant's counsel emphasised the personal circumstances of the appellant and her immediate family, including her role as a caregiver for her grandchildren, her significant health problems, and the appellant's age and lack of criminal history. The Crown argued that the nature of the offending warranted a term of imprisonment, and that the judge appropriately declined to grant bail.

The court found that the judge had taken into account the relevant matters, including the likelihood of a sentence of imprisonment, the short length of time before sentencing, and the appellant's personal circumstances. The court agreed with the judge that a sentence of imprisonment was very likely, and that the appellant had not discharged the onus of showing cause why bail should be granted pending sentencing. The appeal was dismissed.

No further orders were made.

Orders