R v P
[2024] NZHC 2155
•31 July 2024
INTERIM SUPRESSION OF NAME UNTIL FURTHER ORDER OF THE COURT IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-004-7913
[2024] NZHC 2155
THE KING v
P
Hearing: 31 July 2024 Appearances:
M Chiraagh for Crown P Wilks for Defendant
Judgment:
31 July 2024
(ORAL) JUDGMENT OF WILKINSON-SMITH J
Solicitors/Counsel:
Meredith Connell, Auckland E Priest, Auckland
R v P [2024] NZHC 2155 [31 July 2024]
Introduction
[1] Mr P applies for bail on compassionate grounds to attend his grandmother’s funeral on 3 August 2024. The Crown opposes the application.
[2] Mr P has pleaded guilty to charges of importing methamphetamine and conspiracy to import methamphetamine. I was the trial judge for the trial of Mr P’s co-defendants. I am familiar with the role played by Mr P.
Background
[3] The offending involved importation of methamphetamine via Auckland Airport bypassing customs by the use of baggage handlers who retrieved the methamphetamine directly from incoming flights. Quantum in respect of Mr P’s role is in dispute as I understand it, but there is no doubt that the offending involved significant commercial quantities. I heard evidence of substantial sums of money which Mr P had access to and control of. Substantial sums of money were located upon termination.
[4] Mr P’s role was to organise the baggage handlers and pay them. He was not the organiser of the importations, and he was not at the top of the operation. He was however a key part of the organised importation of methamphetamine through the airport. His involvement was not at the lower level where I would place the baggage handlers; it is probably best described as mid-level. Mr P was in contact with one of the offenders who actually organised the importation and was then in contact with the baggage handlers below him in the operation.
Legal principles
[5] Having been convicted of Class A drug offending involving the organised importation of commercial quantities of methamphetamine, it is inevitable that a sentence of imprisonment will be imposed and that it will be a lengthy sentence of imprisonment.
[6] Mr P is subject to s 13 of the Bail Act 2000.1 I recently had an application for compassionate bail by a co-offender, Mr Iuvale, to attend his uncle’s funeral. As I set out in that decision, applications for bail on compassionate grounds following conviction engage both s 13 of the Bail Act and s 8 risk factors.2
[7] Section 13 provides that if a defendant is found guilty or if he pleads guilty the Court must not grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. The onus is on the defendant to show just cause why bail should be granted.3
[8] Weighing up the interests of justice for the purpose of applying the discretion involves consideration of the purpose of imprisonment compared with the interests of the defendant in being able to attend the funeral of a relative. The closer the relative the more the interests of justice might fall in favour of a grant of bail. In situations where there is actual tragedy such as the unexpected death of a child or perhaps the death of a parent, the interests of justice will fall more strongly in favour of a compassionate grant of bail.
[9] It has to be remembered though that sentences of imprisonment are intended to be punitive and to remove a person from society. One of the natural consequences of imprisonment is that a prisoner will not be able to be present at important family events. Nevertheless, the punitive element should not be elevated to the inhumane or to a situation where a compassionate response is not available. Where a close relative has died, the Court will try to facilitate attendance at funerals if the risk factors in s 8 of the Bail Act can be sufficiently mitigated.4
[10] Resort should first be had to s 62 of the Corrections Act 2004. I am advised that there has been an informal approach to the prison who advised that a bail application would need to be made because Mr P is not yet a sentenced prisoner. That is not correct. Section 62(2) of the Corrections Act applies. The Department of Corrections must consider whether the release or removal of the
1 Bail Act 2000, s 13(1).
2 Section 8(1)(a).
3 Section 13(2).
4 See Cleeve v NZ Police [2021] NZHC 2436.
prisoner is appropriate. Section 62 provides that a remand prisoner may apply for temporary removal from custody in order to achieve the objectives set out in s 66(2)(a) of the Act. Those objectives include the compassionate or humane treatment of the prisoner and his family.5
[11] If an application is made, the Department of Corrections must consider whether release or removal might pose an undue risk to the safety of the community while the prisoner is outside the prison, the extent to which the prisoner should be supervised or monitored while outside the prison, the benefits to the prisoner and the community of removal or release and whether removal would undermine the integrity of any sentence being served by the prisoner.6 The Department may require the prisoner to submit to electronic monitoring.7 A prisoner on temporary removal is required to be under the control or supervision of an officer, staff member or probation officer during the period of removal. The Department has adopted a practice (which, as I said in the earlier decision, has been queried as to its appropriateness in this Court) of requiring the prisoner or his family to meet the costs of temporary removal.8
[12] In Lund v New Zealand Police, Collins J considered the jurisdiction of the Court to grant compassionate bail and the process to be followed. Collins J said:
[37] … an applicant seeking temporary leave from prison for compassionate reasons should put forward an application for either temporary release or temporary removal to the Department in the first instance. The decision as to what type of application is made will depend on whether or not the prisoner satisfies the criteria to be eligible for temporary release.
[38] The District Court, and in rare cases the High Court, may however consider compassionate bail applications under the Bail Act. An analysis of the merits by reference to s 8(1) of the Bail Act will then be required. So too will any reverse onus, and practical considerations including timing, victim(s)' proximity to the location of compassionate leave, appropriateness of support people, and transport.
(footnotes omitted)
[13] As can be seen, the conditions which are imposed for compassionate release by the Department of Corrections provide for significant security. The Department
5 Corrections Act 2004, s 62(2)(a)(ii).
6 Section 62(3).
7 Section 63(1A).
8 Lund v New Zealand Police [2017] NZHC 3160 at [15]–[16].
must also have in mind the integrity of the sentence that is being served. The integrity of the sentence being served is relevant in this case because, although Mr P is not yet sentenced, he has pleaded guilty. Section 13 applies, and he is effectively serving the sentence that he will eventually be sentenced to.
Discussion
[14] There is a question as to whether a grant of compassionate bail undermines the integrity of the sentence. There is also a concern as to whether the conditions proposed are sufficient. The conditions proposed by Mr P are:
(a)Mr P would be collected from prison at 5 am, allowing four hours of travel time. Mr P will then be returned to prison by 4.30 pm (taking into account travel conditions).
(b)Mr P would be supervised by his wife. She will drive him directly to and from the burial with no unnecessary stops.
(c)Mr P would remain at the burial at the Manukau Memorial Gardens between 9 am and 12 pm and will not travel to any other address or location.
(d)Mr P would abide any other conditions the Court considers necessary.
[15] The proposed conditions are considerably less secure than those which would apply to the temporary removal process under the Corrections Act. The Court of Appeal was very clear that the appropriate approach is first to make an application under the Corrections Act9. That process should not be shortcut except in very urgent circumstances.
[16] As for Mr P himself, his bail history does not cause any great concern. He was on bail for a significant period of time. I have not been alerted to any problems or
9 In my oral decision I referred to the Court of Appeal. I was referring to the decision of Collins J in Lund v New Zealand Police supra. This was a High Court decision. The reference to the Court of Appeal is incorrect.
breaches of his bail. He pleaded guilty and accepted that he was facing a sentence of imprisonment and would go into custody. That tells against any real concern of a risk of flight, although it can never be entirely discounted when a person is facing a lengthy sentence of imprisonment.
[17] It is true, as the Crown says, that he may well have connections within the gang world, although he himself is not a gang member and I do not have any evidence of what connections he would or might have. He does potentially have access to money given the quantity of methamphetamine involved. He was involved in serious commercial drug dealing.
[18] Ms Wilks for Mr P draws a distinction between Mr P and Mr Iuvale and I agree that the distinction is proper. Mr Iuvale, the co-offender, was a senior member of a gang and much higher up in the organisation. He did not plead guilty, and he was convicted of offending on bail. The risk of flight in respect of Mr Iuvale was a determining factor. I do not regard the risk of flight as a determining factor in relation to Mr P although the security measures proposed are inadequate to provide any security whatsoever. Essentially, he will simply be collected by his wife, taken to a family event and trusted to return.
[19] The real issue comes down to whether the interests of justice are met under s 13 and whether a grant of compassionate bail on the conditions proposed would undermine the integrity of the sentence that will be imposed and undermine the interests of justice generally. It seems to me that members of the public would be surprised if a person facing a lengthy sentence of imprisonment, having pleaded guilty to Class A drug offending, could simply come and go from prison with no further security than being collected by his wife.
[20] A grandmother is a moderately close relative, not as close as a parent or a child. Further, there is no tragic situation that requires an unusually compassionate response from the Court as would be required in a situation where a child passed away.
[21] I have concerns that the security arrangement is also simply inadequate and, in fact, makes a mockery of the fact that Mr P is a prisoner. There is no real oversight,
there is nothing to prevent him absconding, although I don’t place that as a high risk. The real concern is that it gives the impression that Mr P is able to walk out of custody as it suits him.
[22] In the end, I am not persuaded that the interests of justice are met under s 13 to permit Mr P to leave prison essentially unsupervised. It diminishes the punitive effect of a prison sentence if prisoners can simply be released into the care of family members to attend family events — even such events as a funeral of a grandparent. The offending is serious. Mr P is facing a lengthy sentence. The inability to attend a funeral is one of the consequences of the serious offending. It is not unusual, sadly, for prisoners lose grandparents while they are serving a sentence. It is sad if Mr P cannot attend his grandmother’s funeral, but many prisoners will suffer that same situation while in custody and, following conviction, it cannot be assumed that prisoners will be given leave to attend funerals, especially with essentially no security. I emphasise that the test is different once s 13 applies. It is far more common for prisoners on bail awaiting trial who have not been convicted of any offending to be granted compassionate bail.
[23] Mr P needs to make application to the prison authorities pursuant to s 62. It may be appropriate for him to attend if the Department is willing to facilitate that with a prison escort and still with the status of a prisoner. That is the procedure set out by Parliament for prisoners in this situation.
Results
[24] A grant of bail on the circumstances proposed, in my view, does not maintain Mr P’s status as a prisoner, it undermines the integrity of the sentence which he is effectively serving and is inappropriate and not in the interests of justice.
[25]Compassionate bail is declined on those grounds.
Wilkinson-Smith J
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