S v Police HC Auckland CRI 2008-404-94

[2008] NZHC 561

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-0094

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 April 2008

Appearances: A Wilburn (on instructions from P Eastwood) for Appellant

K Raftery for Respondent

Judgment:      22 April 2008

JUDGMENT OF WOODHOUSE J

Counsel / Solicitors:

Mr P Eastwood, Barrister, Auckland

Mr K Raftery, Meredith Connell, Office of the Crown Solicitor, Auckland

S V NEW ZEALAND POLICE HC AK CRI 2008-404-0094  22 April 2008

[1]      Mr S   appeals from the decision of a District Court Judge of 1 April

2008 remanding Mr S   in custody for sentence on 14 May 2008.  He pleaded guilty to three reasonably serious charges – threatening to kill, possession of an offensive weapon, and wilful damage.   There is a further charge of excess blood alcohol that he pleaded guilty to.

[2]      I am satisfied there was no error of principle by the learned Judge on the information available to him when this matter was dealt with on 1 April.  There had apparently been, in essence, persistent  failure of Mr  S   to  attend  at  the probation office for a probation report, and this persisted, as the Judge understood it, to a fourth occasion notwithstanding what was described as a final warning.   In addition, the Judge had regard to the fact that in his judgment there was a likelihood of a custodial sentence.

[3]      In respect of the probation matter, particularly after the guilty plea, with the onus on the defendant, the approach of the Judge is understandable.   What is not clear is whether he was given the information now provided to me, and most of it by way  of  affidavit.    There  was  some  confusion  as  to  the  address  to  which  Mr S   was originally bailed which lent support to Mr S  ’s evidence that notice of an appointment to attend the probation office must have gone to the wrong address.  Mr Raftery acknowledged that there is evidence of, at least, some confusion at an earlier stage.

[4]      The matter that persuaded the Judge, at least in part, to remand in custody was a further apparent failure to attend at the probation office on 25 March.  On that occasion an appointment was made but Mr S   instead, he says, went to Starship Hospital to see his daughter who was at Starship for four days over that period with an infected leg.  His attendance on that date has been confirmed.  And I was advised from the bar that Mr S   contacted the probation office to say that he could not attend on that date because the priority was his daughter.   I was informed by Ms Wilburn for Mr S   that this was readily accepted by the probation office.

[5]      There are questions that could be asked about the extent of the responsibility shown by Mr S   in dealing with the matter on 25 March but he is entitled to the benefit of the doubt.

[6]      More  importantly,  it  does  appear  that  these  matters  of  confusion  about address and then the reason for non-attendance on 25 March were not before the learned District Court Judge.  Had they been the outcome may have been different and, in my judgment, should have been.

[7]      The  other  considerations  that  would  naturally  exercise  the  mind  of  the District Court Judge were not new.  There had been offending while on bail for these matters but bail had been continued following that further offending.

[8]      In relation to the likelihood of a custodial sentence Mr Raftery accepted that, as he put it, this is probably on the borderline.  A custodial sentence, if there is one, is likely to be a relatively short one.  I add that if that is the case it may point to the alternatives that a Court is required to consider under the Sentencing Act.

[9]      I have also received an assurance from Ms Wilburn that she is prepared to do all she reasonably can to try to ensure that Mr S   does attend for the completion of a pre-sentence report.

[10]     For these several reasons, and emphasising that in my judgment there was no error in principle by the learned District Court Judge, I am prepared to grant bail on the following conditions:

a)        Mr S   is to live at 13 Racecourse Road, Avondale.

b)He  is  not  to  associate  with  Bridget  Chambers,  the  victim  of  the assaults.

c)        He is not to drink alcohol.

d)He is to co-operate fully with all proper requests from the probation office for the purpose of completion of a pre-sentence report.  He is

also to co-operate with requests from his counsel in that regard.

Peter Woodhouse J