R v McGuire HC Hamilton CRI 2006-019-617

[2007] NZHC 1929

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-019-617

QUEEN

v

ROBERT WILLIAM MCGUIRE, TANE KYLE DOUGLAS GIBBONS, KAIYA IAN GENE GIBBONS, TRISTRAM JARRED TAKA AND NICOL JOY STEPHENS

Hearing:         28 June 2007

(Heard at Hamilton)

Appearances: P Crayton for Crown

R Laybourn for R McGuire

W Pyke for T Gibbons

G Boot for K Gibbons

T Sutcliffe and L Walkington for N Stephens

Judgment:      28 June 2007

JUDGMENT OF ASHER J

Solicitors:

Almao Douch, Crown Solicitors, PO Box 19173 Hamilton

R Laybourn, Barrister, PO Box 936 Hamilton
W Pyke, Barrister, PO Box 19271 Hamilton

G Boot, Gavin Boot Law, PO Box 19043 Hamilton

Till Henderson King, PO Box 19342 Hamilton

R V MCGUIRE & ORS HC HAM CRI 2006-019-617  28 June 2007

[1]      The  jury  has  today  returned  verdicts  of  guilty  as  follows  in  respect  of

Tane Gibbons, Kaiya Gibbons and Nicol Stephens:

Tane Gibbons

Count 2   –   Permitting   premises   to   be   used   for   the   manufacture   of methamphetamine – Guilty

Count  3  –  Possession  of  equipment  capable  of  being  used  for  the manufacture of methamphetamine - Guilty

Count 4 – Possession of material capable of being used for the manufacture of methamphetamine – Guilty

Count 5 – Possession of precursor substances – Guilty

Kaiya Gibbons

Count 1 – manufacturing methamphetamine – Guilty

Count  3  –  Possession  of  equipment  capable  of  being  used  for  the manufacture of methamphetamine – Guilty

Count 4 – Possession of material capable of being used for the manufacture of methamphetamine – Guilty

Count 5 – Possession of precursor substances – Guilty

Nicol Stephens

Count 2   –   Permitting   premises   to   be   used   for   the   manufacture   of methamphetamine – Guilty

Nicol Stephens

[2]      I deal first with Nicol Stephens.  There is a realistic possibility that because she is convicted only of the one charge of permitting premises, and because her position  of  authority  in  the  house  was  clearly  at  a  lower  level  than  that  of Tane Gibbons and Kaiya Gibbons, she will not be sentenced to imprisonment.

[3]      For that reason I am satisfied that it will be in the interests of justice that she be granted bail, and I do so.  Bail will be on the existing terms.

[4]      I turn next to the situation of Kaiya Gibbons.   He is at present 19 years of age.  Section 15 of the Bail Act 2000 (“the Act”) therefore applies to him.  When he is remanded for sentence he must be released on bail subject to s 142 of the Criminal Justice  Act 1985,  which states that  a  Court  may direct  that  a young  person  be detained in a penal institution only if, in the opinion of the Court, no other course is desirable having regard to all the circumstances.

[5]      I start from the proposition that I am required to release Kaiya Gibbons on bail by virtue of the provisions of s 15(1) of the Act.   The obligation to grant a defendant aged between 17 and 20 years bail prevails over the provisions of s 13 of the Act, which require a Court not to grant bail if a defendant is found guilty, unless it is satisfied on the balance of probabilities that it should do so.  Section 13 of the Act does not, therefore, apply.

[6]      I turn as the next step to consider whether there is no real alternative to detention in custody, having regard to all the circumstances.  The effect of s 15 is to place the onus on the Crown to satisfy the Court that no other course is desirable.  In considering whether no other course is desirable, the provisions of s 8 of the Act are relevant.

[7]      Turning  to  those  s 8  considerations,  there  is  no  suggestion  that  Kaiya Gibbons is likely to abscond.  He has been on bail now for approximately one-and-a- half years and he has met his bail obligations.  Further, he has not reoffended in that time.  The issue of interfering with witnesses does not arise.  Therefore, there are no considerations in terms of s 8(1) of the Bail Act that require him to be in held in custody.  There are no other relevant circumstances.

[8]      Therefore, applying s 15, I grant Kaiya Gibbons bail on the existing terms and conditions.

[9]      I turn to the position of Tane Gibbons.   Unlike his brother, Tane Gibbons’ position, age does not prevent the application of s 13.  The Court must therefore not grant him 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.

[10]     Despite Mr Pyke’s careful submissions, I am not satisfied on the balance of probabilities that it would be in the interests of justice to grant bail to Tane Gibbons. It may be that there is a possibility that his ultimate sentence will be less than two years’ imprisonment, although that is very far from assured.   But even if that is a possibility, and even if it were also possible that he might succeed in being granted leave to apply for home detention, I do not consider that that possibility in these circumstances discharges the onus imposed by s 13.

[11]     Accordingly, I decline to grant bail to Tane Gibbons.

…………………………..

Asher J