S v Police HC Auckland CRI-2010-404-322

[2010] NZHC 1621

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-322

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 September 2010

Appearances: Ms M Winterstein for Appellant

Ms Z Johnston for Respondent

Judgment:      14 September 2010

(ORAL) JUDGMENT OF LANG J [on appeal against refusal to grant bail]

Solicitors:

Crown Solicitor, Auckland

Ms M Winterstein, Auckland

S V NEW ZEALAND POLICE HC AK CRI-2010-404-322  14 September 2010

[1]      Mr S   has pleaded guilty in the District Court to a charge of refusing to permit a blood specimen to be taken under the provisions of the Land Transport Act

1998.  He has also pleaded guilty to a further charge of driving whilst disqualified. He has been convicted on those charges and remanded in custody until 1 October

2010, when he is to be sentenced.

[2]      On 30 August 2010 Mr S   applied for bail, but in a reasoned decision delivered on the same date, that application was refused.  Mr S   now appeals to this Court against the refusal to grant bail.

[3]      Because Mr S   has pleaded guilty to the charges, s 13 of the Bail Act

2000 comes into play.  This contains a presumption against the grant of bail.  The Court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.  The onus was on Mr S   to persuade the Judge in the District Court why bail should be granted.

[4]      It is apparent from the Judge’s decision that he considered that there is a very real likelihood that Mr S   will be sentenced to a term of imprisonment.  That is not surprising, given the fact that this is Mr S  ’s fourth conviction for alcohol related offences in a driving context.

[5]      He was first convicted on a driving with excess blood alcohol in April 2006. In May 2009 he was found to be driving with a blood alcohol level of 1231 micrograms of alcohol per litre of breath which, as the Judge observed, is well over twice  the  legal  limit.   On  7  August  2009,  less  than  three  months  after  he  had appeared before the Court on the previous charge, he was again found drinking and driving, this time with a breath alcohol reading of 1060 micrograms of alcohol per litre of breath.  Again, as the Judge observed, that is over two and a half times the legal limit.

[6]      On  the  last  occasion,  Mr  S    was  fined  $1000  and  disqualified  from driving indefinitely.  It must have been obvious to him at that time that he faced a very real prospect of being sentenced to a term of imprisonment in the event that he did not immediately address the alcohol-related issues that he obviously has.

[7]      Just over a year later, however, Mr S   has offended again and in a serious way.  On this occasion he refused to give a blood sample.  This meant that he was subject to the same penalties as a driver who had been driving with 1000 micrograms of alcohol per litre of breath.

[8]      The nub of the appeal is that a sentence of imprisonment is not inevitable and that the Judge ought to have recognised that Mr S   is currently obtaining help for the obvious problems that he has with alcohol.  He has been accepted to a residential programme to deal with alcohol addiction.   Whilst counsel for Mr S   acknowledges that he will obviously undergo a detoxification process in custody, she submits that a prison environment will not provide the same counselling and support of services that will be available in a residential alcohol addiction programme.

[9]      I accept that that is the case, but this factor could never be determinative of an application for bail in the current context.  The Judge correctly identified that a sentence of imprisonment is a real likelihood.   The Court of Appeal has recently confirmed in R v Leone (2009) 24 CRNZ 231 and R v Hertnon [2009] NZCA 518 that in these circumstances the fact that there is a possibility that a sentence less than imprisonment might be imposed is not sufficient to warrant bail being granted.

[10]     I take the view that the issues that counsel for Mr S   has raised on appeal are matters that are properly to be canvassed before the sentencing Judge, whoever that may be.   Mr S   can at that point show that he is motivated to address his problems and attempt to persuade the Judge that a sentence of home detention to be served at a residential treatment institution is a better option for society on a long term basis than a sentence of imprisonment.  For present purposes, however, I have no doubt that the Judge applied the correct principles.

[11]     The appeal against refusal of bail is accordingly dismissed.

Lang J