R v Police HC Hamilton CRI 2009-419-4

[2009] NZHC 84

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2009-419-4

R

Applicant

v

THE POLICE

Respondent

Hearing:         10 February 2009

Appearances: J Buckle for applicant

A M Beveridge for Crown

Judgment:      10 February 2009

JUDGMENT ON BAIL APPEAL OF ALLAN J

Solicitors/counsel :

J Buckle jame[email protected]

Crown Solicitor Hamilton

R V  POLICE HC HAM CRI 2009-419-4 10 February 2009

[1]      Mr  R    appeals  against  the  refusal  of  bail  in  the  District  Court  at Taumaranui on 15 December 2008.  On that occasion Judge Radford declined bail pending a hearing of charges against the appellant of:

a)        Common assault;

b)Intentional damage;  male assaults female and breach of a protection order;  and

c)        Breach of a protection order.

[2]      All of the offences except for the common assault charge relate to the same complainant.

[3]      Mr R   appeared at a status hearing on 9 December 2008 and pleaded not guilty to all the charges.

[4]      The common assault charge was set down for hearing on 15 December 2008. On that day the appellant was acquitted.  An application for bail on the remaining charges was made but Judge Radford declined bail.

[5]      A hearing was scheduled on 15 January 2008 on the single charge of breach of a protection order, but it was adjourned because the appellant was ill.  The current position is that that charge is scheduled to be heard on 11 March 2009, and the remaining charges are to be heard tomorrow, 11 February 2009.  All hearings are in the Taumaranui District Court.

[6]      Mr R   appeals against the refusal of Judge Radford on 15 December to grant him bail.  The primary argument advanced by Mr Buckle today is that even at that stage, on 15 December, the appellant had served a longer sentence than was likely to be imposed if he was found guilty on the outstanding charges.  Of course, if Mr Buckle is right, the position has been exaggerated by the passage of time since the decision under appeal was made.

[7]      Mr R   has now been in custody for some four months, he having initially been granted bail, but having been remanded in custody in October following a breach of the condition as to the consumption of alcohol.

[8]      In my opinion, this appeal is meritorious in that, putting matters at their worst for the appellant, and assuming he is convicted on all of the outstanding charges, it is unlikely he would face a sentence of more than eight months imprisonment, which is the equivalent of four months time served.  In making that observation, I do not of course in any way purport to fetter the discretion of the Judge or Judges hearing the remaining charges.

[9]      This morning, Ms Beveridge has outlined something of the recent history of the  appellant.    Plainly  he  has  an  alcohol  problem.    There  have  been  recent convictions for assault and breaches of a protection order.  On those occasions, the appellant has been treated relatively leniently, which suggests to me that the offences concerned do not fall towards the top of the scale.

[10]     From a pragmatic point of view it might be thought the appropriate course would be simply to leave the question of bail to the Judge who hears the charges scheduled for hearing in the Taumaranui District Court tomorrow.  However, there is a question of principle here.  The Court ought not to perpetuate situations in which persons facing criminal charges effectively serve on remand any sentence of imprisonment to which they are likely to be subjected.

[11]     The proper course is to allow the appeal.  In doing so I am not necessarily differing from the view taken by Judge Radford on 15 December.  The passage of time since that date justifies this Court in reviewing the matter afresh.

[12]     For these reasons, I allow the appeal.  Mr R   is granted bail subject to the following conditions:

a)        He is to reside at 16 Whakaraparapa Road, Kakahi;

b)He is not to associate or communicate directly or indirectly with the complainant;

c)        He  is  to  report  to  the  Taumaranui  police  station  on  Mondays, Wednesdays and Fridays between 12 noon and 4 pm;

d)       He is not to possess or consume alcohol on licensed premises;

e)        He is not to possess or consume illicit drugs;

f)        He  is  to  undergo  a  breath  screening  test  forthwith  upon  being requested to do so by a police officer;

g)        For the night of 10-11 February 2009, that is tonight, he is to be curfewed at the bail residence between the hours of 7 pm and 6 am.

[13]     It perhaps goes without saying that in the event that the appellant is convicted on any of the charges scheduled for hearing tomorrow, then the question of bail will arise afresh and will be a matter for the presiding Judge, who should not feel in any way hindered in his or her approach to the question of bail by the observations in this judgment.

C J Allan J