Rowe v District Court of New Zealand at Levin
[2022] NZHC 3134
•28 November 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-568
[2022] NZHC 3134
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
TROYDEN HOANI ROWE
Applicant
AND
THE DISTRICT COURT OF NEW ZEALAND AT LEVIN
First Respondent
THE ATTORNEY-GENERAL OF NEW ZEALAND
Second Respondent
Hearing: 1 November 2022 Appearances:
D A Ewen for Applicant
T Simpson and J A Eng for Second Respondent
Judgment:
28 November 2022
JUDGMENT OF McQUEEN J
[1] This is an application to judicially review the decision of the District Court at Levin to adjourn sentencing of the applicant on one set of charges until the resolution of another set of charges.1 The applicant seeks an order in the nature of mandamus that the District Court sentence him on these charges without further delay.
1 Police v Rowe [2022] NZDC 14139 [Adjournment decision].
ROWE v THE DISTRICT COURT OF NEW ZEALAND AT LEVIN [2022] NZHC 3134 [28 November 2022]
Background
[2] The applicant pleaded guilty to four offences under the Land Transport Act 1998 and the Summary Offences Act 1981 (“the Levin charges”).2 He awaits trial in the District Court at Whanganui on several charges of more serious violent offending, including causing grievous bodily harm with intent to cause grievous bodily harm, aggravated robbery and aggravated burglary (“the Whanganui charges”).3 This offending is alleged to have occurred while the applicant was on bail for the Levin charges, and approximately five and a half weeks after the offending from which the Levin charges arose. The trial on these charges is set down for 23 November 2023.
[3] The applicant was to be sentenced on the Levin charges on 27 July 2022. However, at the hearing, the Judge noted his concerns about the Whanganui charges yet to be tried. His initial reaction, communicated to counsel during the hearing was:
… that any offending that Mr Rowe has committed should all be dealt with at the one time. In other words, we shouldn’t be splitting sentencing particularly if as it is alleged here he has offended while on bail for these charges, that it would be important for a Court to stand back and assess all of his conduct over a relatively short period of time depending on the outcome of the other charges.
[4] Counsel for the applicant then raised that there was a practical benefit in proceeding with sentencing on the Levin charges then, being essentially that the applicant would get pre-sentence detention credit twice if there were two sentencing hearings.
[5] The Judge considered that the credit matter was “one further reason for not splitting sentencing”. However, he noted that the matter of most concern to him was that the offending alleged in the Whanganui charges is said to have occurred while the applicant was on bail for the Levin charges. Accordingly, he informed counsel of his view that:
… [the applicant’s] conduct should therefore be considered in the round once all liability is established rather than splitting consideration and trying to take
2 The charges being: refusing a blood specimen; driving in a dangerous manner; assault police; and threatening behaviour.
3 All three of these charges with a maximum penalty of 14 years’ imprisonment: Crimes Act 1961, ss 188(1), 232 and 235(b).
into account somewhat less serious offending if he is ultimately convicted of more serious offending.
[6]The Judge then ordered the adjournment:4
[4] The sentence proposed for you today is simply a time-served sentence because of how long you have been in custody. This is an understandable and correct submission.
[5] I have had a discussion with Mr Foster today about the prospect of you receiving credit twice, in other words not just on these charges but then if you are convicted of any of the other charges, receiving pre-sentence time credited on those matters as well. That would have the effect that if I sentenced you today and then you were convicted of the other charges, you would effectively not serve a sentence on these charges.
[6] Of more importance, however, is the principle that a person should be sentenced based on their overall conduct once it has been established. The Court should assess an appropriate outcome and sentence that takes all matters into account particularly when, as alleged here, offences were committed while on bail for these offences.
[7] I consider the most important issue is one of totality which can only be assessed once all matters have been determined. For that reason, I decline to sentence you today.
[8] I have directed that these charges should catch up with the Whanganui charges and lie alongside and sentencing should occur once the Whanganui charges have been resolved.
[7] The Judge considered there to be no prejudice to Mr Rowe from the adjournment on the basis that, given the serious nature of the allegations of the Whanganui charges, it was “highly unlikely” he would be granted bail.5
Grounds of review
[8] The applicant contends that the Judge erred in law by taking two irrelevant considerations into account when making his decision, being:
(a)totality in sentencing; and
(b)the possibility that the applicant may twice receive credit for pre- sentence detention (regarded as undesirable by the Judge).
4 Adjournment decision, above n 1.
5 At [9].
[9]The Attorney-General opposes the application, submitting:
(a)the threshold for judicial review of an exercise of the District Court’s criminal jurisdiction is high;
(b)the Criminal Procedure Act 2011 (the Act) imposes no express restrictions or conditions on how the Court’s power to adjourn is to be exercised; the test is whether an adjournment is in the interests of justice; and
(c)the decision to adjourn was “driven by an orthodox assessment of good sentencing practice and court administration”.
[10] In the event that the Court finds that the Judge did take an irrelevant matter into account, the Attorney-General says the Court should decline to provide the relief sought by the applicant. He submits that these proceedings are a “transparent attempt” to secure a double benefit of pre-sentence detention credit for the applicant that the applicant himself says was an irrelevant and unlawful consideration in the District Court. If the applicant is right about relevance, the Attorney-General says the Court is left with the Judge’s principal reason for the adjournment; which was a decision about what the Judge considered to be good sentencing practice and court administration. He says that decisions of this nature should not be overturned without compelling reasons.
Should the Court engage in judicial review?
[11] The preliminary question is whether the High Court should exercise its power to review the District Court Judge’s decision to adjourn proceedings.
[12] A long line of cases demonstrates the Courts’ reluctance to engage in judicial review in the criminal sphere. Perhaps the most notable (and regularly cited) is Auckland District Court v Attorney-General, regarding the successful review in the High Court of a District Court decision to dismiss a charge under s 347 of the Crimes Act 1961 (the predecessor of s 147 under the Act). The District Court appealed on the
basis the decision was not reviewable. The Court of Appeal held that the criminal jurisdiction of the District Court was reviewable, but that it necessitated restraint:6
The power to review a District Court Judge’s decision under s 347 must be sparingly exercised. It is appropriate only in rare cases, where, by reason of the nature of the error of jurisdictional law in the District Court, the intervention of the High Court is imperative.
[13] This proposition has since been reflected in a number of High Court decisions involving the review of s 147 dismissal decisions.7 I note that some of these cases cite the proposition arising from Auckland District Court v Attorney-General in broader terms (suggesting it stands for judicial review being exercised sparingly in the criminal law jurisdiction generally). However, in my view, the most helpful decision as to the general need to exercise constraint in judicial review in the criminal sphere is DGN v Auckland, Manukau, Papakura and Waitakere District Courts.8 That case involved a strike out application of judicial review proceedings sought as to the decision to prosecute. While that application arose in an already specialised context (with authority specifically confirming reluctance to intervene with decisions to prosecute),9 Simon France J made general comments as to the impact of the Criminal Procedure Act 2011 on the approach to judicial review:10
[31] [The Act] … prescribes appeal rights. This Part of the Act reflects a careful consideration of what appeal rights should exist pre-trial and post verdict. Second appeal rights are carefully prescribed. Judicial review should not be seen as a way to circumvent that scheme. Sections 215 and 217 identify the provisions concerning which a pre-trial appeal may be brought. Section 147 is not included but the matters which underlay the s 147 application can of course be revisited as part of a conviction appeal. Further, s 296 provides for question of law appeals and may be available pre-trial.
[32] The purpose of this review is to emphasise not only the comprehensive nature of the legislation, but also that it represents legislative assessment of an appropriate scheme which affords avenues of challenge and appeal [at] what are considered to be the fair and appropriate points in the process. The use of judicial review as an alternative route carries significant
6 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 136.
7 See Nuku v District Court at Auckland [2016] NZHC 2237 at [17]; Angus v District Court [2017] NZHC 2879, [2018 NZAR 1804 at [20]; Rowell v District Court [2017] NZHC 2706 at [2]; and Gifford v District Court of New Zealand [2022] NZHC 851 at [74].
8 DGN v Auckland, Manukau, Papakura and Waitakere District Courts [2016] NZHC 3338. See also Rowell v District Court, above n 7, at [2]; and Gifford v District Court of New Zealand, above n 7, at [76].
9 See Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC).
10 Footnote omitted, emphasis added.
potential to undermine this scheme, and is one of the reasons why, in my view, a compelling reason should now be required before judicial review is allowed.
[14] Simon France J struck out the proceeding on the basis that there was no tenable ground of challenge to the decision to prosecute. However, he noted that he would have struck out the proceeding as an inappropriate use of judicial review:11
The scope for using judicial review to challenge decisions made under the ambit of the Criminal Procedure Act must, in my view, be extremely narrow. Whatever scope remains, this case does not come within it.
[15] This approach makes good sense and reflects previous comments made by the Courts, namely that:
(a)remedy by way of judicial review is not appropriate where an alternative and adequate remedy exists;12 and
(b)criminal proceedings should not generally be subject to a collateral attack by way of judicial review and entertaining such challenges outside of the trial and appeal process is likely to seriously disrupt the criminal justice system.13
[16] I note that under the Act, there are no appeal rights against a Judge’s discretion to adjourn. In Baylis v Palmerston North District Court, Grice J acknowledged that any issue relating to fair trial rights as a result of the dismissal of an adjournment may give rise to an appeal under the Act following trial outcome.14 However, she proceeded on the basis that it was appropriate to engage in judicial review in that case. Baylis involved the Court’s refusal to adjourn a fixture for trial by jury, thus making fair trial rights a live concern in that case. In this case, it is possible that the decision to adjourn may be raised in an appeal against sentence. However, given the constraints on a Sentencing Judge under s 82 of the Sentencing Act (unable to consider pre- sentence detention upon sentencing), I am doubtful that a sentence appeal would appropriately address the concerns the applicant raises in his current application.
11 At [40].
12 C v Wellington District Court [1996] 2 NZLR 395 (CA).
13 See Taikato v Tauranga District Court at Tauranga [2012] NZHC 560, [2012] NZAR 471 at [46].
14 Baylis v Palmerston North District Court [2022] NZHC 728.
[17] During the hearing, counsel discussed the potential that the applicant could have brought an appeal on a question of law, but Mr Ewen, for the applicant, submitted that judicial review was the most efficient procedure.
[18] In Baylis v Palmerston North District Court this Court relied on an obiter statement of the Court of Appeal in Anderson v R as confirming this Court has jurisdiction to undertake judicial review of a decision to adjourn.15 Anderson v R addressed the jurisdiction of the appellate courts under s 296 of the Act to hear appeals regarding decisions declining leave to make late jury trial elections. The Court discussed the appeal rights available under s 296 of the Act and further observed:16
[46] It is important that the appeal rights under s 296 are not the only remedy. If, for example, there is a decision not to dismiss a charge under s 147 of the Act that can be remedied after the trial by an appeal against conviction on the basis there has been a miscarriage of justice. For other decisions, for example, the decision not to adjourn a trial, judicial review may be available…
[19] In light of the above, I consider the current situation is one in which it is appropriate for the Court to engage in the judicial review of the District Court decision. This is consistent with the authorities canvased; allowing a judicial review would not amount to a collateral attack on the criminal justice process, nor would it thwart existing appeal rights, as relevant appeal rights do not exist.
Did the Court take into account irrelevant considerations when adjourning sentencing of the Levin charges?
[20] As noted, there are two considerations advanced by the applicant as being irrelevant to the Judge’s assessment: totality in sentencing; and the application of the applicant’s pre-sentence detention credit.
[21]Determining whether a consideration is irrelevant involves two inquiries:17
(a)whether the consideration in question is or is not relevant to the empowering provision; and
15 At [26].
16 Emphasis added.
17 Graham Taylor (ed) Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [15.41].
(b)whether the consideration was material to the actual action involved, that is, actually influencing it to be taken or not taken.
[22] Determining relevancy is prima facie confined to matters relevant to the empowering statute.18
Totality in sentencing
[23] The power to adjourn under s 167 of the Act is discretionary in nature. The Court of Appeal in Morgan v R has recently confirmed that this discretion is broad; while the power should only be exercised for good reason, the Court is required to consider whether an adjournment is in the interests of justice.19
[24] The applicant contends the District Court Judge was wrong to consider totality in sentencing. Mr Ewen submits that consideration of totality is relevant only when the court is required to impose sentence on a number of charges at the same time in a single setting. As the Court was not empowered to impose sentence on the Whanganui charges, it is submitted that the Judge erred in considering those charges as forming part of any sentencing totality, even notionally, when adjourning the Levin sentencing.
[25] However, the nature of the court’s discretion to adjourn poses difficulties to this submission. In my view, an inquiry into the interests of justice necessarily engages a broad assessment. The totality principle mandates that the imposition of cumulative sentences must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.20 Accordingly, it would be artificial to require the District Court Judge to disregard the existence of the alleged Whanganui offending, given the offending allegedly occurred while on bail for the Levin charges, when considering what the appropriate approach to sentencing may be. I consider it was open to the Judge to conclude that there was an advantage to the Court in making a totality assessment of the applicant’s overall culpability at a single sentencing
18 See Buller Electricity Ltd v Attorney-General [1995] 3 NZLR 344 (HC).
19 Morgan v R [2022] NZCA 112 at [24], citing Mizsey v Police [2017] NZHC 3130 at [5] and Gray v Thom (1997) 10 PRNZ 373 (HC).
20 Sentencing Act 2002, s 85(2).
hearing in the event that the applicant is found guilty of some or all of the Whanganui offending and that this was not an irrelevant consideration under s 167 of the Act.
[26] The applicant has also raised concerns that the Judge ordered the adjournment on his own volition, and that this was inappropriate in the circumstances. The applicant has not raised unlawfulness as a ground of review, but I note that s 167 does not constrain a Judge’s power to adjourn as contingent on an application by counsel, as Mr Ewen suggests.
Pre-sentence detention
[27] The main focus of the applicant’s submissions is that a statutory prohibition preventing the Court from taking pre-sentence detention into account at sentencing meant it was an irrelevant consideration for the District Court Judge when adjourning the applicant’s sentencing.
[28] There is a tension between this submission now raised in the present application and the fact that pre-sentence detention was raised by the applicant’s former counsel with the District Court Judge during his consideration as to whether to adjourn or not. This tension is further reflected in the application for judicial review. The applicant sets out the relevant provisions governing the application of pre-sentence detention, drawing the Court’s attention to the different treatment of pre-sentence detention whether there is one sentencing or two (if he is convicted on the Whanganui charges, to which he remains entitled the presumption of innocence). I address this below for completeness.
[29] Under s 90(3) of the Parole Act 2002, where an offender is the subject of one or more cumulative terms of imprisonment that form a single notional sentence the accrued pre-sentence detention on all constituent charges is applied once. A single notional sentence can be the result of more than one sentencing.21 However, the Court can only impose a cumulative sentence of imprisonment on any other determinate sentence of imprisonment to which an offender is already subject.22 In this case, the
21 Sentencing Act 2002, s 83.
22 Section 83(1).
applicant explains that if sentenced to the Levin charges on 27 July 2022, he would have been sentenced to time served and would no longer be subject to that sentence of imprisonment. Therefore, at the time of any potential sentencing for the Whanganui charges, he would not be subject to “any other determinate sentence” and the sentence would not become a single notional sentence; that is, he would get the benefit of his pre-sentence detention twice; once at each sentencing.
[30]On the basis of the statutory provisions, the applicant notes:
It is clear that a policy choice has been made by Parliament; pre-sentence detention is properly allocated to more than one sentence, and resulting from more than one sentencing. Parliament has also spoken on when it is permissible to accumulate sentences if sentencing takes place on different occasions, and perhaps more significantly, when it is not.
[31]The applicant then turns to s 82 of the Sentencing Act 2002, that provides:
82Pre-sentence detention must not be taken into account in determining length of sentence
In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.
[32] The applicant says that the District Court Judge was considering how much pre-sentence detention should apply to both the Levin charges, and, pre-emptively, to the Whanganui charges. He says that there is an absolute prohibition to this enquiry through s 82 of the Sentencing Act. He also relies on the Supreme Court decision in Booth v R. 23
[33] I struggle to see how Booth supports the applicant’s submission. Booth addressed the application of pre-sentence detention as time served in respect of subsequently imposed prison sentences. The Supreme Court found that the entirety of a period of pre-sentence detention is deducted from each sentence or sentences of imprisonment imposed on an offender. This is not a relevant issue in the present proceedings.
23 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.
[34] Mr Ewen takes William Young J’s dissent in Booth as establishing the broader proposition that it is no part of the Court’s function to consider pre-sentence detention and that would contravene the relevant legislation. Upon reviewing his judgment, I do not accept that William Young J makes such a broad statement, relevant to the current application for review of the decision to adjourn. Nor does his judgment stand for the proposition that the applicant can elect separate sentencing to preserve that benefit. In my view, the most that can be taken from Booth to support the applicant is that the Supreme Court appeared to accept that it was open for offenders to receive a double benefit of pre-sentence detention.24 That is not contested here.
[35] I turn back to the statutory prohibition itself. What matters here is whether s 82 is a bar on the Judge considering pre-sentence detention when determining whether to adjourn the proceedings. I consider it is not.
[36] It is my view that s 82 is simply not engaged here. Section 82 specifies that pre-sentence detention is not to be assessed when determining the length of any sentence of imprisonment. The Judge was not determining the length of the applicant’s sentence, rather, he was determining whether he should exercise his discretion to adjourn sentencing of the Levin charges.
[37] The question then becomes whether the assessment of pre-sentence detention was a relevant consideration under the broad interests of justice test. This was not explicitly addressed in the applicant’s submissions but becomes the natural question once s 82 falls away. Given the Supreme Court has confirmed that double counting of pre-sentence detention credit is appropriate across two sentencings, I note that it would be wrong, then, for the Court to consider the need to prevent this from happening as a relevant consideration when assessing whether an adjournment is in the interests of justice.
[38] However, I find it difficult to see that this was a consideration that was material to the District Court Judge’s decision. Upon review of the transcript of legal
24 The possibility of “double-counting” of pre-sentence detention at multiple hearings was raised by the Crown, and the Supreme Court did not consider that this required the Court to take a different approach to the legislation than it had taken.
discussion and the adjournment decision, it is evident that the Judge was squarely focused on his concern that “any offending that [the applicant] has committed should all be dealt with at one time”. This concern is repeated several times in the transcript and is the heart of the Judge’s decision.
[39] Further, it was counsel for the applicant who first raised the pre-sentence detention credit argument as a “practical benefit” of being sentenced on 27 July 2022, in response to the Judge’s concern as identified in the paragraph above. In doing so, counsel was inviting the Judge to consider pre-sentence detention, as a relevant consideration, as the reason why sentencing should proceed as scheduled on 27 July. It then became clear that the Judge did not see this “practical benefit” as a persuasive argument that favoured sentencing the applicant on the day. At that point, counsel indicated that the pre-sentence detention argument was not something the Court should have regard to:25
A. That it works in – I would politely suggest that to bring sentencing together to avoid that [that being receiving the benefit of pre-sentence detention twice], that’s perhaps not a matter that the Court should have regard to. The principle should be is there any other reasons other than that why sentencing should not occur today.
Q. Probably the matters that more concern me is that while on bail for now acknowledged by the offending albeit at a different level, he is said to have committed further violent offending and that his conduct should therefore be considered in the round once all liability is established rather than splitting consideration and trying to take into account somewhat less serious offending if he is ultimately convicted of more serious offending.
A. I understand.
Q. That’s the point of principle that I’m wrestling with.
[40] As the above transcript indicates, the Judge shifted his focus back to his initial and primary concern, which was that he considered it appropriate for sentencing on all charges to be dealt with at the same time.
[41] In the adjournment decision, the Judge then records the discussion that he had with counsel regarding pre-sentence detention, but says:
25 Emphasis added.
[6] Of more importance, however, is the principle that a person should be sentenced based on their overall conduct once it has been established. The Court should assess an appropriate outcome and sentence that takes all matters into account particularly when, as alleged here, offences were committed while on bail for these offences.
[42] To conclude, while the Judge did refer to an irrelevant consideration (only because it was raised by counsel), it was immaterial to the Judge’s decision. This ground therefore fails.
Bill of Rights considerations
[43] The applicant also refers to his right to be tried without undue delay (which extends through to sentencing and appeal) and his right to be presumed innocent until proved guilty, as provided for in s 25(b) and (c) of the New Zealand Bill of Rights Act 1990 (NZBORA). His submissions record:
While the two NZBoRA rights could be raised as independent grounds on which to review the District Court decision to adjourn, it is not necessary to do so. In this case, they can be viewed as essential context that should have informed consideration of adjournment.
[44] It is unclear to me how the applicant proposes these rights should be assessed by the Court. The above phraseology suggests that the applicant considers these to be relevant considerations that were ignored by the Judge in making his decision. Equally, the applicant may be suggesting that the decision, as it stands, is a breach of his rights. I take the latter approach to put the applicant’s case at its highest.
Right to be tried without undue delay
[45] The Supreme Court, in R v Williams, provides the orthodox explanation for the purpose of the right to trial without undue delay:26
[8] Section 25(b) of the New Zealand Bill of Rights Act 1990 guarantees to everyone who is charged with an offence “the right to be tried without undue delay”. As Blanchard J said, when delivering the judgment of the Court of Appeal in R v Harmer:
[130] The Bill of Rights guarantee of a trial without undue delay often overlaps with and supports the guarantee of a fair trial (s 25(a)) but it is a distinct right whose purpose is also to minimise pre-trial
26 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [8] (footnotes omitted).
restraints (imprisonment or restrictive bail conditions) and to minimise other personal disadvantage as well as anxiety for someone who is entitled to be presumed innocent until guilt is established by verdict at a trial. Consequently, delay which has no appearance of prejudicing the fairness of a trial can become undue because of the elapsing of too long a period of time after the laying of a charge. …
[131] Whether delay can said to be undue despite not affecting the fairness of a trial therefore falls to be determined on a case by case assessment of particular circumstances. The length and causes of delay must be considered.
[46] As the Court of Appeal has confirmed, sentencing is part of a trial and, accordingly, the right to be tried without undue delay extends through to sentencing.27
[47] I turn to assess whether adjourning the applicant’s sentencing can be said to create an undue delay.
[48]In R v B the Court of Appeal explained:28
“Undue delay” cannot be defined, and although broad principles governing the application of the subsection are being and will continue to be established, it must always be the evaluation of the particular case which is determinative. What is an undue lapse of time in one set of circumstances may not be undue in another. There are necessarily a varying number of factors contributing to the lapse of time from arrest to trial which we think render it impossible to lay down a general time framework. This is not an appropriate area for judicial legislation.
[49] The length of the delay, the reasons for the delay and the prejudice to the accused are all factors relevant to determining whether a delay is unreasonable.29
[50] There is approximately a one year and four month delay between the planned sentencing date on the Levin charges and the trial on the Whanganui charges. I am unaware of the length of the trial planned. If found guilty of any of those charges, it is unclear when sentencing would be set down. This is, in my view, a lengthy delay.
[51] However, I consider there are reasons for the delay in sentencing that were open for the Judge to find persuasive in his decision. I note that the adjournment
27 R v van Yzendoorn [2002] 3 NZLR 758 (CA) at [17].
28 R v B [1996] 2 NZLR 385 (CA) at 387.
29 R v Morin [1992] 1 SCR 771 (SCC); Martin v District Court at Tauranga [1995] 2 NZLR 419 (CA) at 422 and 443; and R v Williams, above n 26, at [11].
decision indicates that the Judge was aware that the trial was likely to be held in late 2023.30 While equally, another Judge may have proceeded to sentence the applicant separately, I find it was open to the Judge to consider that the benefit of assessing all potential offending together justified the delay.
[52] I turn then to the prejudice faced by the applicant. The Attorney-General submits that the adjournment did not impose pre-trial restraints on the applicant’s liberty or impose on him other personal disadvantages before guilt had been established. This is because it is not the Levin charges that caused the applicant to be remanded in custody; he has been remanded in custody due to the Whanganui charges.
[53] The applicant says that the outstanding Levin charges have an impact on any future bail application and accordingly the prejudice faced is more time in prison by him.
[54] I acknowledge that the fact the applicant is awaiting sentencing on charges to which he has pleaded guilty impacts the operative provisions under the Bail Act 2000 when assessing a bail application (engaging s 13). However, that is not necessarily to say that this would be fatal to any bail application; the test under s 13 is broad (once again, whether it is in the interest of justice to grant bail), and the risk factors under s 8 remain potentially relevant considerations (and likely especially so where an applicant is facing outstanding charges).31
[55] While the object of this discussion is not to pre-determine any further bail application, I note that the applicant had been bailed on the Levin charges. These charges are significantly less serious than the Whanganui charges. However, the Whanganui charges allege offending while on bail on the Levin charges, and it appears the applicant was subsequently remanded in custody. I note that the applicant is presumed innocent of those charges. The Bail Act, however, does not prevent people awaiting trial from being remanded in custody, even if found not guilty following trial.
30 Adjournment decision, above n 1, at [3].
31 R v Leone (2009) 24 CRNZ 231 (CA) at [6].
[56] Ultimately, I find that there is minimal prejudice resulting from the delay in sentencing. Given the above, despite the relatively length delay period, I consider that decision to adjourn the sentencing will not have the consequence of breaching the applicant’s right to a trial without undue delay.
Presumption of innocence
[57] The applicant says that the District Court Judge has not afforded him the presumption of innocence and that the adjournment threatens his right to be presumed innocent until proved guilty according to law. I do not accept this submission. The Judge was careful to frame the discussion in terms of the potential conviction and sentence on some (or all) of the Whanganui charges in his decision.32
Conclusion
[58] I do not accept that the District Court Judge erred in law by taking irrelevant considerations into account when making his decision to adjourn. For completeness, I also consider there has been no breach of the applicant’s right to a trial without undue delay. Nor did the Judge fail to afford the applicant the presumption of innocence.
Result
[59]I decline the application for judicial review.
Costs
[60] The applicant was legally aided in bringing these proceedings. The Attorney-General accepts that, in these circumstances, costs lie where they fall.
McQueen J
Solicitors:
L C Ord, Wellington for Applicant Crown Law, Wellington for Respondents
32 Adjournment decision, above n 1, at [8].
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