S v Police HC Auckland CRI 2007-404-94

[2007] NZHC 368

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000094

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 April 2007

Appearances: L Hughes for Appellant

J Down for Respondent

Judgment:      24 April 2007

ORAL JUDGMENT OF ASHER J

Solicitors:

L Hughes, PO Box 76715 Manukau City

Meredith Connell, PO Box 2213 Auckland

S V NZ POLICE HC AK CRI 2007-404-000094  24 April 2007

Introduction

[1]      Mr S   faces the following charges:

a)        Unlawfully takes motor vehicle;

b)       Unlawfully gets into a motor vehicle;

c)        Theft ex motor vehicle;

d)       Unlawfully on property; and e) Wilful damage.

[2]      When Mr S   appeared on these charges on 20 March 2007 he was refused bail.  He now appeals that refusal.

Background

[3]      In the summary of facts the Police allege that Mr S   stole a Subaru Forester vehicle in Onehunga.   He drove it at speed and parked it and was then spoken to by the Police.  When being spoken to by the Police Mr S   ran away. He jumped fences and crossed a property belonging to a Mrs Williams, causing severe damage to a fence.  He was eventually apprehended.  It was found that items left in the vehicle had been taken.

[4]      Mr S    is  19 years  old.    His  record  shows  him  to  be  a  recidivist offender in relation to motor vehicles.  He has either had a case proved (as a youth) or been convicted of 46 motor vehicle-related offences.  He also has two previous convictions for failing to answer District Court bail, two convictions for breaching supervision and community work orders and one previous conviction for escaping from lawful custody.  He was on bail when the alleged offence was committed.

[5]      Following  a  direction  from  this  Court  two  affidavits  have  been  filed  by members  of  the  Police  in  support  of  the  Police  opposition  to  this  appeal.    A Constable Martin comments on Mr S  ’s record.  He states that Mr S   is well known for escaping from the Police when he is being spoken to.  He has in the past evaded Police who have given chase.  He has been pursued by up to ten Police staff members, including dog units and a Police helicopter.   He has a history of committing offences  while on  bail.    The Constable sets  out  17 offences  in  this respect.  He has failed entirely to keep curfew orders in the past.

[6]      Another non-sworn member of the Police, Mr Paul Walker, who is in charge of intelligence at Otahuhu Police Station, has also sworn an affidavit.  He states that he  believes  Mr S    is  the  leader  of  a  street  gang  called  the  “HFKs”. Mr S   is referred to by members and associates of this gang as “the man”.  He reports in more detail Mr S  ’s breaches of curfew.  He states that based on his experience of Mr S  , Mr S   is not committed to his conditions of bail. The details he annexes show that when Mr S   is granted Court bail and given a curfew, he remains at the address for the first few days and then disappears.

The decision

[7]      The District Court Judge did not have the benefit of these affidavits, but clearly did receive submissions along these lines from the Police.   The Judge described Mr S   as a recidivist offender.  He stated that there were occasions when the interests of the community had to take priority over personal interests.  He stated that in his view Mr S   was a risk to the community if he was released on bail.  He did not think the public could be adequately protected by a curfew.  He had no confidence that the terms of bail would be complied with, and consequently declined bail.

[8]      At the time of his appearance before the District Court Mr S   was under 20 years of age.  Section 15(1) of the Bail Act 2000 applied, which reads:

15       Granting of bail to defendant under 20 years of age

(1)      If a court remands or commits for trial or for sentence a defendant who appears to the court to be of or over the age of 17 years but

under the age of 20 years, it must release the defendant on bail or otherwise subject to such conditions as it thinks fit.

There is reference to s 15 in s 142(4A) of the Criminal Justice Act 1985, inserted in

2005, which states:

142Special provisions as to young persons remanded or committed for trial or sentence

…

(4A)     Despite section 15 of the Bail Act 2000, the court may in any case direct that the person be detained in a [prison] if in its opinion no other course is desirable, having regard to all the circumstances.

[9]      Thus,  the  learned  District  Court  Judge  should  have  considered  s 15  and approached Mr S  ’s bail from the point of view that he was entitled to bail unless the Court was satisfied that  no  other  course  but  detention  was  desirable having  regard  to  all  the  circumstances.     There  was,  therefore,  because  of Mr S  ’s age, a particular onus on the Police to prove that no other course but detention was available.

[10]     The learned Judge made no reference to s 15, or to the substantive test in s 142(4A).  I have to conclude that he did not consider s 15.

[11]     It was stated in B v Police (No. 2) [2000] 1 NZLR 31 at 34 in relation to bail appeals:

The appellant must therefore establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong.

[12]     The District Court Judge in this case failed to consider a relevant matter, namely the provisions of s 15(1) of the Bail Act 2000.    I am  satisfied  that  the decision was in error for that reason.  This means that this Court must now consider the matter afresh and decide whether bail should or should not have been granted.

[13]     I consider that, even taking into account s 15 of the Bail Act 2000, this is a plain case for the denial of bail.   There are very special circumstances that are established  by the  Police  in  relation  to  Mr S  .    He  has  an  extraordinary propensity towards dishonesty offences in relation to motor vehicles and, it seems, a total disregard for his obligation to comply with Police requests or Court directions. His history shows an extraordinary disregard for the wellbeing of his community and for authority.  Despite the presumption that a person of his age should not be held in custody, I consider that the District Court Judge’s conclusion that it was almost a certainty that he would reoffend and defy bail terms if granted bail was justified. That is the conclusion that his history forces a reader to reach.

[14]     The charges that he faces, of course, are not of the most serious type.  It is not acceptable for an alleged offender to be kept in custody for a period that exceeds the likely maximum period of imprisonment for which the offender is at risk.  However, that consideration does not arise in this case.  Mr S   is likely to get at least a period of imprisonment if convicted.  He has been in custody since 20 March 2007.

[15]     Ms Hughes, who has filed careful and balanced submissions, advised me this morning that there is a status hearing date pending on 8 May 2006.  At that point it is likely that there will be finality reached in the Court process.  I do not consider that a period of detention of up to two months is likely to exceed Mr S  ’s maximum non-parole period if convicted and sentenced.

Conclusion

[16]     Although I have observed that an error was made in the District Court in not considering s 15(1), I consider that there were particular circumstances that made the decision to deny Mr S    bail  correct.    Indeed,  it  was  the  only conclusion sensibly open to the Judge, given Mr S  ’s history of offending, and defiance of Court restrictions.

………………………….

Asher J