Smith v Police HC Auckland CRI 2007-404-250

[2007] NZHC 2093

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000250

UNDER  the Bail Act 2000

IN THE MATTER OF     an appeal against refusal to grant bail

BETWEEN  PAUL FREDERICK SMITH Appellant

ANDPOLICE Respondent

Hearing:         31 August 2007

Appearances: N C Wintour for Appellant

A J Pollett for Respondent

Judgment:      31 August 2007

JUDGMENT OF COOPER J ON APPLICATION FOR BAIL

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland. Copy:

N C Wintour, PO Box 2976, Shortland Street, Auckland.

SMITH V POLICE HC AK CRI 2007-404-000250  31 August 2007

[1]      Paul Frederick Smith appeals against the decision of District Court Judge S J Fleming given in the District Court at North Shore on 5 June 2007 declining him bail.

[2]      The   appellant   is   charged   with   offering   to   supply   methamphetamine, conspiracy to supply that drug, offering to sell cannabis, possession of cannabis for supply and possession of instruments for the purposes of consuming cannabis.

[3]      The police exercised powers of search to obtain the contents of text messages sent and received on the appellant’s phone in dealing with known drug dealers. According to the content of the text messages, he was heavily involved in drug dealing and that he was also dealing in firearms.  The summary of facts speaks of the accused being regularly in contact with one associate, discussing numerous deals involving methamphetamine and cannabis in large quantities.   It is alleged that he was operating a TAB account, and would use it for the deposit and withdrawal of money relating to drug transactions.

[4]      The learned District Court Judge declined the application for bail on the basis of the seriousness of the offending, the likely term of imprisonment that would be imposed if the charges were proved and, apparently, his continued use of cannabis. In that respect there is reference at paragraph [6] of her decision to a risk that the appellant might offend whilst on bail and that is based on the fact that he was then allegedly already offending on bail, a concession having been made in relation to personal use of cannabis.

[5]      She mentioned, as what she described as the only factor that would weigh in favour of a grant of bail, the length of time that would have to elapse before the matter could be tried.   In that respect, however, the Judge stated that she was not aware of how long that might be.

[6]      At the time of being charged with the current offences the appellant was remanded on bail in respect of charges alleging wounding with intent under s 188 of the  Crimes  Act,  two  charges  of  unlawfully  carrying  a  firearm  and  other  less

significant  charges.    Those  charges  are  set  down  for  a  deposition  hearing  on

24 October 2007.

[7]      Mr Wintour says that in respect of the charge of wounding with intent to cause grievous bodily harm, that the defence will be that he was present, but did not use the firearm that was involved in that incident and he suggests that disclosure made available by the police to date will support the appellant’s account of the events.

[8]      Depositions on the current charges are to be heard in the North Shore District Court on 5 December 2007.   They will be defended on the basis of innocent explanations for the TAB account transactions and to the extent that the prosecution rests on text messages, the appellant maintains that he lost his mobile telephone at the relevant time and was not the author of the text messages.

[9]      He proposes that he be bailed to reside with his wife and family at their address in Beach Haven, Auckland.   He says in an affidavit that he swore on 15

August 2007 that he has abandoned the use of cannabis.  Mr Wintour also advances the appeal on the basis that when space became available he would be prepared to attend a residential programme and some steps have been taken to gain access to the Salvation Army Bridge Programme so that continuing efforts may be made to deal with his addiction.  A 24 hour curfew is also proffered.  Mr Wintour submits that the address would be a reliable place for Mr Smith to reside at given the presence there of his four children as well as his wife.

[10]     For the Crown Ms Pollett has referred to the  risk  of  re-offending.    She submitted that it would be preferable if he were to be released on bail that that be immediately to a residential drug treatment centre.  In the meantime she refers to the fact that the problem of addiction has been one of long standing and submits that there is a real risk of continued use of illicit drugs, as Judge Fleming feared would be the case, if there were a release on bail.  Ms Pollett referred to the fact that in her affidavit the appellant’s wife had confirmed that he had smoked cannabis since their relationship began some 20 years ago and that their relationship had been what she

described as an “on and off” one because of arguments about his cannabis and other drug use.

[11]     As I have already indicated, depositions on the current charges are to be heard in the North Shore District Court on 5 December 2007.  That being the case it is unlikely that the matter could be tried in this Court until the last quarter of 2008 and perhaps more likely, the first quarter of 2009.  Supposing, as I think is realistic, that the trial was not able to be scheduled prior to March 2009 the appellant would by then have been remanded in custody for approximately 20 months.  That is too long a period to be contemplated with any degree of equanimity notwithstanding my impression that the Crown has a strong case in respect of the current charges.

[12]     The Crown does not assert a risk of flight and I do not think that there is any real risk of that.  The identified concern is as to the appellant’s addiction.   In that respect Mr Wintour has been able to hand to me this morning information which suggests that he has had his status as an identified drug user tested whilst being on remand in custody.  In particular he has been able to hand me a letter from a senior Corrections Officer, in the Auckland Central Remand Prison.   The letter reads as follows and is dated 19 August 2007:

To Whom It May Concern

SMITH, PAUL FREDERICK has been a prisoner in Golf Unit (*Auckland

Central Remand Prison).

He has been compliant and cooperative and we’ve had no issues with him whatsoever.  He is quiet and helpful.  He often gives encouragement to other prisoners.

SMITH, PAUL FREDERICK has been IDU (Identified Drug User) free and has had no drug related offences whilst in prison to date.

[13]     It appears then that there may be the prospect that he has indeed, of his own efforts, been able to free himself of his habit over the last period of three months since he has been remanded in custody.

[14]     That is what he asserts in his affidavit of 15 August 2007.  In the affidavit he stated that he would have been smoking about five cannabis joints a day when he was arrested and consequently, all the cannabis found at his address by the police

was for his own personal use.  He refers to having also managed to stop smoking methamphetamine without assistance or professional help.   The letter to which I have referred from the Prison Officer goes some way to supporting the contentions that he makes in his affidavit.

[15]     There was merit in Ms Pollett’s suggestion that it would be desirable, were he to be released, if he could be released directly to a residential treatment centre. However, the letter from the Salvation Army Bridge Programme indicates  their preference for him to have some time in the community, having been released from custody,  before  he  enters  another  residential  institution.     I  was  advised  by Mr Wintour from the Bar that that is generally the position now adopted by those institutions offering relevant treatment programmes.   He said that there was one organisation left which did not have that requirement, CADS, but that there would be a delay of at least eight months before a programme would become available with that organisation.

[16]     Given the length of time that must inevitably elapse before the trial of this matter, I have decided, in view of the progress that he appears to have already made in respect of his addiction with his own efforts, and his stated willingness to enter a residential treatment centre when space becomes available, to release him on bail notwithstanding the risks to which Ms Pollett has referred.

[17]     The release on bail will be subject to conditions that:

a)        He reside at all times at 2/289 Rangitira Road, Beach Haven.

b)He is to remain at that address throughout every day and he is to present himself forthwith at the door if police call to ascertain as to his presence.

c)        He is not to consume any non-prescription drug.

d)He is not to apply for any travel document and his passport is to remain surrendered.

[18]     I note that given that there is no prospect of immediate enrolment in the Salvation Army Bridge Programme, if he is to participate in the Salvation Army’s Programme he will need to make application for variation of bail.  That application ought to be made sufficiently in advance to enable the terms of bail to be varied so as to enable him to immediately take up the opportunity when it is offered.

[19]     The curfew that I have required by way of condition in paragraph [17], will not apply to the extent that the accused is travelling to the Salvation Army Bridge Programme treatment centre or the premises of some other recognised drug addiction service for the purpose of being assessed for his suitability as to entry on such a programme.