R v W HC Hamilton Cri-2010-419-39

[2010] NZHC 684

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-000039

THE QUEEN

v

W

Hearing:         6 May 2010

Appearances: R Guthrie for the Crown

P J Kaye for the Accused

Judgment:      7 May 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 7 May 2010 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           Almao Douch, PO Box 19173, Hamilton 3244

Counsel:            P Kaye, PO Box 941, Auckland 1140

R V W HC HAM CRI-2010-419-000039  7 May 2010

[1]      Mr W   appeals a decision of Judge Maze delivered in the Hamilton District Court on 26 March 2010 declining his application for electronically monitored bail.  Mr W   has, however, been in custody since 17 February 2010 when he was first declined bail by Judge Blaikie.

[2]      The  grounds  advanced  for  the  appeal  are  that  the  learned  District  Court

Judge:

a)       Failed to give sufficient weight to the time Mr W   would have been in custody by the time of his trial date (which at the time of hearing was thought to be July of this year);

b)Placed too much weight on Mr W  ’s previous criminal record and insufficient weight on the safeguards available with electronic bail;

c)        Failed adequately to assess the strength of the prosecution case; and d)        Was wrong in her decision.

[3]      The present charges faced by Mr W   all arise directly or indirectly out of his relationship with his former partner, Ms Mason, who has obtained a protection order against him.  Since that relationship ended, Mr W   has reconciled with his wife.

[4]      According to the amended indictment dated 15 April 2010, the appellant now faces ten charges. These are:

a)        Four charges of contravening a protection order under ss 19(2)(e) and

49(1)(a) of the Domestic Violence Act 1995 by making telephone contact with a protected person;

b)One  charge  of  contravening  a  protection  order  by  following  a protected person under ss 19(2)(b) and 49(1)(a) of the Domestic Violence Act 1995;

c)       Two charges of contravening a protection order in watching/loitering near a protected person under ss 19(2)(a) and 49(1)(a) of the Domestic Violence Act 1995;

d)       One charge of criminal harassment under ss8(1)(b)(i) and 8(2) of the

Harassment Act 1997;

e)        One charge of threatening to kill under s306(1)(a) of the Crimes Act

1961; and

f)        One  charge  of  threatening  physically to  abuse  a  protected  person under ss 19(1)(b) and (49)(1)(a) of the Domestic Violence Act 1995.

Background

[5]      Mr W   and Ms Mason were in a domestic relationship for two years. Their relationship ended in March 2009.  A temporary protection order was served on Mr W   on 22 April 2009 in relation to Ms Mason and her children, a standard condition of which was that he not make any contact with them without their express consent.

[6]      On 4 June 2009 Mr W   pleaded guilty to, and was sentenced to imprisonment for, five criminal harassment charges arising largely from telephone calls that he had made to Ms Mason prior to the making of the protection order. There were further guilty pleas and convictions for other related charges including one of attempting to pervert the course of justice which related to a telephone call in which Mr W   had tried to persuade Ms Mason to drop the criminal harassment charges against him.

[7]      It was shortly after Mr W  ’s release from prison later that month that the alleged events that give rise to the present charges faced by him began.  I detail those alleged events below.

[8]      On 24 June 2009, Ms Mason was at her place of employment when she received a series of phone calls from someone stating that they had the wrong number.  At approximately 4.05 pm she answered a call from someone asking for the appellant by name. When she informed them that the appellant was still in prison the caller replied “oh no I don’t think he is” and hung up. The complainant recognised the voice of the caller to be that of the appellant.  Approximately five minutes later, the appellant called again. When challenged as to his identity, the appellant replied “I’m not Barry”.  He then emulated an Indian accent, and spelt out the name Barry before hanging up.

[9]      Ms Mason also received a series of calls at her work place on 25 June 2009 in which the caller immediately hung up on answering.

[10]     On 26 June 2009, at approximately 4.35 pm, Ms Mason received another call from the appellant purporting to have called the wrong number while she was at work.  On  her  way  home  from  work  at  approximately  5.15  pm  she  observed Mr W   standing on the footpath, whereupon he stepped forward and waved to her as she drove past. As she continued down the road, she noticed the appellant following her vehicle in his own. He then turned off to a small road, waiting for the complainant to pass, waved at her as she passed, and then immediately caught up to her and pulled in behind her vehicle. He then increased his speed and pulled in to the right hand lane beside Ms Mason, who was frightened and increased her speed. The appellant also sped up and passed her before turning off the road away from her.

[11]     On 27 June 2009 at approximately 8 pm Ms Mason started receiving a series of phone calls on her cellphone. The caller terminated the connection on the first call. In the second call, she heard Mr W  ’s voice asking for an unknown female.

[12]     At approximately 9 pm on 1 July 2009 Ms Mason was at the Air Training Corps to pick up her son from a weekly meeting held at that venue. As she was waiting in the carpark inside her car, it was illuminated by full beam headlights from a  vehicle  parked  directly  opposite.  This  vehicle  then  travelled  directly  towards

Ms Mason’s car.   Just as she believed the vehicle would collide with hers, the vehicle veered off.  The registration number of the vehicle was that of the appellant.

[13]     On 20 July 2009, Judge Harland granted Mr W   bail in relation to the first eight charges on conditions which included not driving a motor vehicle, a

24 hour  curfew,  no  association  or  communication  with  the  complainant  either directly or indirectly and not using a telephone.  Judge Harland took into account an affidavit from Mr W  ’s son in which he said it was he who had made the phone calls that were the subject of some of the charges to Ms Mason.

[14]     However at approximately 2.30 pm on 7 November 2009, Ms Mason was in her garden at home. She observed a vehicle driving slowly past her house. This vehicle returned a short  time after and  again drove slowly past her house. She recognised the driver to be Mr W   and the passenger in the front seat as his wife.

[15]     On 2 December 2009 Mr W   was again imprisoned but for unrelated, Insolvency Act, offences.  He was released on 10 February 2010.

[16]     On 12 February 2010 a police officer (Sergeant Bland) spoke to Mr W   on his cellphone concerning possible variations to his bail conditions.  During this conversation,  the  appellant  is  alleged  to  have  said  “I might  as  well  shoot  [Ms Mason].   It’s the only way to make her stop. Just go around and shoot her.”

[17]     On 15 February 2010 the question of bail came before Judge Blaikie in the Hamilton District Court. His Honour’s notes recorded what he was told at that time, namely that Mr W   was then facing three indictable charges for the incidents on 7 November 2009 and 12 February 2010, though he noted that there were other charges pending.  Judge Blaikie was not satisfied that the Mr W   would not commit   further   offences   while   on   bail   and   declined   the   bail   application. Mr W   appealed that decision.

[18]     On 4 March 2010, however, the question of bail came before Judge Noble on the basis that Mr W   said that there had been a change of circumstances in that

Judge Blaikie did not have all the relevant information before him, and in particular, the fact he had been granted bail in relation to the other charges.   It appears that Judge  Noble  rejected  that  argument:  a  matter  recorded  at  [5]  of  Judge  Maze’s decision (although her Honour did not have the written judgment of Judge Noble before her).

[19]     The appeal from Judge Blaikie’s earlier decision was heard by Heath J in the Hamilton High Court on 11 March 2010.  Heath J noted that he had been told that a further application for bail had been made in the District Court after 15 February

2010, but that there was no record of that hearing before him.  Presumably this was the hearing before Judge Noble.  Heath J said that it was clear that Judge Blaikie did not have all the relevant information before him, evidenced by his reference to there being  three  indictable  charges.     The  Crown  confirmed  at  the  hearing  that Mr W   faced another seven counts.

[20]     Of particular relevance to the present appeal is that Heath J then noted in his judgment that s 12 of the Bail Act applied to Mr W  , meaning that he bore the onus of proving to the Court’s satisfaction that he should be granted bail.  Section

12(1)(b) applies because:

a)        Mr W   is over 17 years of age;

b)He  is  charged  with  an  offence  under  the  Crimes  Act  carrying  a penalty of three or more years imprisonment (the threatening to kill charge);

c)        He has previously received more than 14 sentences of imprisonment;

and

d)He has previously been convicted of an offence carrying a penalty of three or more years imprisonment that was committed while on bail.

[21]     It is notable that s 12 did not apply to Mr W   at the time he was granted bail by Judge Harland because the threatening to kill charge had not at that

point been laid.  Plainly the laying of that charge effected a very material change in

Mr W  ’s position.

[22]     Heath J dismissed the appeal but held that the proper course (in light of the incomplete information before Judge Blaikie) was for a fresh application for bail to be made in the District Court with supporting evidence and without reference to decisions preceding it.

[23]     On 26 March 2010 Judge Maze heard the new, opposed, application for electronically monitored bail.  She had before her affidavits from both Mr W   and his wife outlining the nature of Mr W  ’s defences to the charges he faces, which are principally that he did not commit the relevant acts, although he also says that the statements made to Sergeant Bland have been misconstrued.

[24]     Judge Maze held that the central issue was the appellant’s previous history and an assessment of whether or not she could infer that if he were on electronically monitored bail he would not commit any further offending. After having regard to:

a)        the affidavits from Mr W    and his wife;

b)Mr W  ’s recent convictions in March and April 2009 on five counts of criminal harassment (also relating to Ms Mason) and one count of attempting to defeat the course of justice;

c)       the fact that Mr W   has previously committed offences whilst on bail;

d)       the need to protect the safety of Ms Mason (s 12(7)).

[25]     Judge Maze concluded that she could not be satisfied on the balance of probabilities that the appellant would not offend whilst on electronic bail or that electronic bail would adequately protect Ms Mason.  Out of an abundance of caution her Honour then went on to consider the application in terms of s 8 (paragraph [9] of her decision), but she reached the same conclusion and declined Mr W  ’s application accordingly.

This Appeal

[26]     While Mr Kaye for Mr W   sought to stress to me that appeals of the present kind are by way of rehearing, it is trite that in a bail context that does not mean that the matter is heard and determined de novo.   A decision refusing bail involves the exercise of discretion and an appellate Court can therefore only disturb that decision in limited circumstances.  The onus is on an appellant to show that the first instance judge took into account an erroneous principle or failed to take into

account a relevant principle:   Aziz v Police1  or that the decision is plainly wrong:

R v Blaikie2.

[27] I have set out Mr W ’s grounds of appeal at [2] above. They do not focus on the specific matters to which Judge Maze was required to have regard under s 12 of the Bail Act but rather relate to matters that may, in the Court’s discretion, be taken into account in an application for bail that is determined under s 8(2). In particular the grounds advanced in the notice of appeal do not directly engage or take issue with:

a)       Whether  or  not  Judge  Maze could  be  satisfied  on  the  balance  of probabilities that Mr W   will not, while on bail, commit any offence involving violence against, or danger to the safety of, any other person; and

b)        Judge  Maze’s  conclusions  as  to  the  need  to  protect  the  safety of

Ms Mason (that being a “primary consideration”).

[28]     Nonetheless those issues were fully canvassed by Mr Kaye in oral argument before me.

[29]     The  terms  of  s  12(4)  and  (5)  make  it  clear  that  other  matters  may  be considered by a judge in determining whether she is satisfied that bail should be

1 Aziz v Police HC Auckland CRI-2008-044-8708, 25 February 2009 at [17].

2 R v Blaikie [2000] 1 NZLR 31 (CA) at 34.

granted although it is plain that the matters specifically mentioned (and in particular the need to protect the safety of the victim) are to have primacy.

[30]     It was accepted by Mr Kaye that the reference to “violence” in s 12(5) was not limited to physical violence, but could include psychological abuse such as harassment, intimidation and threats.  I agree that this must be the case, in light of the references in the Bail Act to the provisions of the Domestic Violence Act 1995 and the wide definition of “violence” in that Act.  However Mr Kaye submitted that the offending (and any likely reoffending) against Ms Mason here was at the very lowest end of the “violence” scale and was more akin to nuisance.   Thus, he submitted, Judge Maze’s assessment of both the risk to Ms Mason and the need to protect her safety could not be sustained.

[31]     Even putting to one side the high threshold which must be crossed in order for me to disturb Judge Maze’s conclusions in this respect I do not accept Mr Kaye’s argument.   He has accepted that the types of activity in which Mr W   has admitted to engaging in qualifies as “violence” in terms of s 12.  The charges which he presently faces relate to similar activity which occurred in the face of a protection order  which  itself  could  only  have  been  made  if  the  court  was  satisfied  that Mr W   was using, or has used, domestic violence against Ms Mason or that it was necessary for her protection.   As well, Mr W  ’s previous convictions evidence a tendency to recidivism.

[32]     As  well,  the  statements  I  have  seen  from  Ms  Mason  indicate  that Mr W  ’s  previous  activity  has  in  fact  intimidated  her  and  made  her  feel unsafe.  While Judge Maze gave Mr W   the benefit of the doubt in this respect (in that she discounted Ms Mason’s personal subjective views) I would not myself be so willing to do so.

[33]     For all these reasons I can discern no error of approach by Judge Maze in relation to her findings on the critical s 12 issues.

[34]         As  to  the  other  grounds  of  appeal,  in  my  view  the  issues  raised  by

Mr W    relating  to  the  safeguards  available  with  electronic  bail  and  his

previous criminal record necessarily formed part of Judge Maze’s consideration of the specific s 12 matters to which I have just referred, and in particular the continued safety of Ms Mason.   And as I have said Judge Maze also separately considered those matters in the context of an alternative s 8 analysis.   I can see no basis for concluding that she failed to have regard to these issues.  The weight she accorded them was a matter for her.

[35]     Even if I am wrong in that, the difficulties with even very stringent electronic bail conditions in this case are obvious.  In particular, and in light of Mr W  ’s previous offending while on bail, it is difficult to feel confident that he would not continue to make calls to Ms Mason, and to intimidate and harass her, notwithstanding conditions prohibiting the use of a telephone (which were indeed imposed by Judge Harland prior to the alleged events that give rise to the present charges).  Such conditions are necessarily difficult to enforce.

[36]     As to the strength of the prosecution case, I have no doubt that Judge Maze also had regard to this as she was entitled (but arguably not obliged) to do.  She had affidavits before her from Mr W   and his wife and was thus well aware of the nature of the defences he intends to run in relation to the charges with which he is faced.  She expressly noted that the success or failure of the prosecution was largely dependent on the credibility of Sergeant Bland.   While there was argument before me as to the correctness of this proposition I do not consider that any error made by Judge Maze in this respect would have gone against Mr W  .  And again, the weight ultimately placed on this factor was a matter for her Honour and I do not regard this ground of appeal as one that can succeed.

[37]     Judge Maze also plainly turned her mind to the issue of the length of time Mr W   had spent in custody and the length of time until his trial (at paragraphs [4] and [8]).

[38]     The applicable maximum penalties for the offences with which Mr W   has been charged are comparatively low.  Although the maximum penalty for breach of a protection order has recently been quadrupled (from six months to two  years) that  change  is  not  retrospective  and  does  not  apply  to  the  charges  faced  by

Mr W   in the present case.  The maximum penalty for the remaining charges that he faces is two years imprisonment.

[39]     The respondent made helpful and detailed submissions as to the possibility that Mr W  , if convicted on some or all charges, might be sentenced cumulatively to a period of imprisonment longer than the six months for which he may ultimately have been remanded in custody.  Even if concurrent sentences were imposed it is conceivable that such a period of imprisonment might be arrived at (provided the lead charge was taken to be one of those offences for which longer periods  of  imprisonment  could  be  imposed).    Accordingly  I  accept  that  such sentences might not be beyond the pale, particularly in light of his previous convictions for similar offending against Ms Mason.  Equally, however, it is possible that he will be acquitted or receive a sentence of less than six months imprisonment.

[40]     Any denial of bail must always carry with it the possibility that the person to whom bail is denied will ultimately be acquitted or sentenced to a period of imprisonment that is shorter than the time already spent in custody.  It is for that and other important, related, reasons that the presumption in favour of granting bail ordinarily applies.

[41]     But Mr W   does not in any event fall within this “ordinary” category. By virtue of the nature his previous and alleged offending Parliament has said that he is not entitled to the benefit of that presumption.  The nature of both his proven and alleged offending is also such that (as Judge Maze found) it is very difficult to be satisfied that he will not, if bailed, commit a further offence involving danger to the safety of Ms Mason.  Section 12 stipulates that her protection is to have primacy.

[42]     Once that point is reached I do not consider that the amount of time that Mr W   might spend in custody by itself could warrant the grant of bail.  Even in an “ordinary” s 8 case it is only one of a number of discretionary matters that may be taken into account.   As Judge Maze concluded there is very real doubt that Mr W   would be granted bail if s 8, rather than s 12, were the governing provision here.

[43]     In summary I can see no possible basis on which I can or should interfere with Judge Maze’s decision.   Her reasoning was clear, coherent and thorough.   It cannot be said that she erred in principle, failed to take into account some relevant matter or was otherwise plainly wrong.

[44]     The appeal is dismissed accordingly.

Rebecca Ellis J