Rikihana v District Court at Levin HC Palmerston North CRI 2007-454-8

[2007] NZHC 1700

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2007-454-8

HOHEPA HAMIORA RIKIHANA

Appellant

v

DISTRICT COURT AT LEVIN

Respondent

Hearing:         27 March 2007

Appearances: B Gore for Appellant

C Boshier for Respondent

Judgment:      27 March 2007

ORAL JUDGMENT OF MILLER J

[1]      Mr Rikihana appeals against refusal of bail.   He is charged with burglary, intentional damage, failure to report to his probation officer as required under his conditions of release from prison, breach of bail, theft and threatening language, and driving while disqualified.  The dates of the alleged offences range from 5 May 2006 to 11 February 2007.

[2]      Although just 19, Mr Rikihana has a considerable number of offences to his name.  There are convictions for burglary or being unlawfully in a building.  There are also convictions for assault with intent to injure and injuring with intent to cause

grievous bodily harm.

RIKIHANA V DISTRICT COURT AT LEVIN HC PMN CRI 2007-454-8  27 March 2007

[3]      Mr Rikihana was scheduled to appear on 20 April in Levin for a defended hearing on two charges, theft and threatening language.  He denies involvement in those two charges, which are said to have involved a threat against a hitchhiker, following which Mr Rikihana stole his bag.  The other charges are pending and pleas are yet to be entered.  They are said to relate to three separate incidents, of which the main focus of attention appears to be a burglary committed in Otaki between 24 and

27 December 2006.  It appears that Mr Rikihana was implicated by a co-offender.

[4]      He was arrested for failing to appear on his remand date of 11 January 2007 and remanded in custody to 31 January, when Judge Garland granted bail.  It appears that there was an issue about the strength of the police evidence relating to the burglary.   Mr Rikihana was bailed on strict conditions to return to Court on 14

February.  He did not appear, but telephoned the Registrar to say that he had missed the bus from Otaki to Levin.  He was arrested and brought before the Court on 28

February when Judge Atkins declined bail.

[5]      The Judge noted that the police alleged that Mr Rikihana had committed a burglary  while  on  bail,  and  that  while  on  bail  for  previous  offences  he  had committed a total of 49 further offences.  The police alleged that there are victims who fear retaliation were Mr Rikihana to be released.  They also contended that none of Mr Rikihana’s family or friends were willing to have him live with them due to his offending and substance abuse.   He was no longer welcome to stay with his parents.

[6]      The  Judge  noted  counsel’s  submissions  that  a  number  of  the  previous convictions related to youth offending, and that there was an address available to Mr Rikihana.  Counsel pointed out that s.12(1)(b) of the Bail Act carried less weight in circumstances where the defendant was aged less than 20 years.

[7]      The Judge noted the list of previous convictions and the number committed whilst on bail.  The bail address proposed was near where the alleged offence was committed.  Significant weight must be given to his age, but he is not far from the age where that no longer applies.

[8]      He concluded  he was  not  satisfied  that  bail would  be  appropriate  in the circumstances; there was too great a risk of further offending.

[9]      An  appeal  against  refusal of bail  is  an  appeal against  the  exercise  of  a discretion.  The appellant must show that the Judge misdirected himself, took into account an irrelevant consideration or overlooked a relevant one, or was plainly wrong.

[10]     In careful submissions, Mr Gore emphasised that Judge Garland had been prepared to grant bail after critically examining the strength of the police case, and submitted that all that had changed in the interim was that Mr Rikihana had failed to appear at court but had advanced an excuse which was apparently accepted by Judge Atkins.  He argued that Judge Atkins gave insufficient weight to s.15 of the Bail Act.

[11]     Judge Atkins was considering the matter afresh, however.  He was not bound by Judge Garland’s decision, and it appears that the fact that s.12(1)(b) applied had not been drawn to Judge Garland’s attention.  It was for Mr Rikihana to satisfy the Judge on the balance of probabilities that he would not while on bail commit any offence involving violence against or danger to the safety of any other person, or burglary or any other serious property offence.   Judge Atkins did take s.15 into account, but that section is subject to s.12, and in any event the Judge recognised that Mr Rikihana is nearly 20 and has a long criminal record.

[12]     Mr Gore emphasised that the charges are denied.   But Judge Atkins also heard what he described as counsel’s “critical appraisal” of the Police opposition to bail.  Of more moment, where s.12 applies, is that he has a poor history including, on counsel’s count, five convictions for violent offences and six burglaries.   He has served four sentences of imprisonment.   It appears that his parents will no longer have him at home and the address now proposed is vigorously opposed by the police.

[13]     In the circumstances, it was plainly open to the Judge to conclude that s.12 was not satisfied.  On the contrary, there is every reason to suppose that Mr Rikihana continues to pose a risk to the Otaki community.  As Ms Boshier pointed out, he has been on bail since May 2006 yet faces a number of charges arising since then.

[14]     The appeal is dismissed.

Solicitors:

Brian St J Gore, Levin for Appellant

Crown Solicitors Office, Wellington for respondent

F Miller J