Sooialo-Hulbert v Police

[2017] NZHC 2786

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-485-56 [2017] NZHC 2786

BETWEEN

RICARDO SOOIALO-HULBERT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	14 November 2017
Counsel:	C O Thorburn for Appellant A R Winsley for Respondent
Judgment:	14 November 2017

ORAL JUDGMENT OF THOMAS J

Introduction

[1]      The  appellant  has  pleaded  guilty  to  dangerous  driving,  driving  whilst suspended and failing to stop for red and blue flashing lights.  He is due for sentence in early December. He appeals against the refusal of a Judge in the Wellington District Court to admit him to bail by electronic monitoring (EM bail).1

Facts

[2]      The facts of the offending are that the appellant at the time was on bail for a charge of aggravated robbery.2   Not in breach of his bail conditions, but nevertheless

1      Police v Sooialo-Hulbert [2017] NZDC 24908.

2      I note at the outset the appellant remains on bail with respect to the charge of aggravated robbery.

This decision is therefore concerned solely with bail with respect to the later driving charges to which the appellant has pleaded guilty.

SOOIALO-HULBERT v POLICE [2017] NZHC 2786 [14 November 2017]

on bail, he committed the offences on 10 October 2017. He had been suspended from driving in August 2017 because of an excess of demerit points.

[3]      Around lunchtime on 10 October he was driving in Lower Hutt.   Police followed the vehicle.  It began to speed off.  The police activated blue and red lights along with a siren but the appellant continued driving at speed.  In a residential area, he drove at speeds exceeding 80 kilometres per hour. He drove through an intersection controlled by a give way sign at around 70 kilometres per hour. He drove on the wrong side of the road through a traffic light controlled pedestrian crossing and narrowly missed a pedestrian.   Oncoming traffic had to take evasive action.   The police abandoned the pursuit due to the appellant’s manner of driving.

[4]      In explanation, the appellant said he was driving back from Probation. He did not stop because he would not get his licence back in November.

[5]      On 12 October, the appellant’s bail application was refused.  He applied then for EM bail.  The hearing took place on 31 October 2017.  It is fair to say the Judge focused on the risk of offending on bail. He noted the appellant’s relevant convictions, including dangerous driving and driving with excess breath alcohol in 2014 and driving whilst disqualified in September 2015.   He also noted the appellant had a number of convictions for breaching sentences of community work and intensive supervision. I note from the appellant’s criminal history that a sentence of supervision was imposed in 2014.  There is a reference to being convicted and discharged on a breach of intensive supervision in 2015 but his criminal history does not include a sentence of intensive supervision.

[6]      In any event, the Judge concluded the risk the appellant would drive again in a fashion similar to the way he drove on the occasion in question was simply too great. He referred to the fact EM bail was sought and the proposed residence was technically suitable but the appellant was assessed as being at high risk of reoffending if granted bail.  He therefore declined to grant bail and remanded the appellant in custody to

6 December 2017 to allow for preparation of a pre-sentence report with an appendix.3

3      To address the possibility of an electronically monitored sentence.

The law

[7]      The appellant having pleaded guilty, s 13 of the Bail Act 2000 applies.  The Court must not grant bail unless satisfied on the balance of probabilities it would be in the interests of justice in the particular case to do so.  The onus is on the defendant in such a case and there are a number of matters the Court can take into account.  Of particular relevance in this case, however, is s 13(4) which provides that if the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.

Submissions

[8]      Ms Thorburn, appearing for the appellant, submits the Judge made two errors. First, he did not address the likelihood of a sentence of imprisonment and secondly, the Judge failed to address whether the risks identified by him, that is of offending on bail, would adequately be addressed by electronic monitoring.

[9]      Mr Winsley, for the respondent, acknowledges that those two issues were not expressly addressed by the Judge but says they were implicitly addressed.

[10]     I agree with Ms Thorburn. The Judge did not address two matters which should have been addressed and for that reason I will consider afresh the question of bail.

Should EM bail be granted?

[11]     The EM bail suitability report assesses the address as technically suitable. The report writer also notes the appellant has not previously been subject to EM bail, nor has he been subject to any electronically monitored sentence in the past.

[12]     The report  states  in  error that  the appellant  breached  his  bail  conditions

17 times in 2013 to 2014.  The correct analysis shows there were three breaches of bail over that period.  It is not in dispute, however, that he committed a number of offences whilst on bail.  In that regard, the appellant’s criminal history needs to be considered.  Although he has a number of convictions, they are mainly driving and alcohol related, that is, driving with excess breath alcohol and some dishonesty

offending.  There are also a number of breaches encompassing driving offences, for example driving while disqualified, but also breaches of community based sentences.

[13]     It is of note that ten of the appellant’s convictions have resulted either in a fine, a sentence to come up for sentence if called upon, or conviction and discharge. I make that point to emphasise the level of gravity of a number of his convictions.

[14]     In  any  event,  the  EM  bail  report  writer  assessed  the  appellant  as  being unsuitable for EM bail.

[15]     As against that, however, as I say, he has never before been subject to an electronically monitored sentence. He is a young man. There is a letter he has written to the Court outlining his plans for positive steps he could take should he be admitted to bail today.  This includes spending time with his son who is currently five months old, supporting his partner, helping his mother with whom he would be living, actively looking for work and completing his community work.

[16]     It is fair to say that the appellant’s criminal history suggests a young man who has yet to come to terms with the responsibilities of being an adult, the need to comply with authority, the need to associate with those who will be a positive influence on him and the need to address his use of alcohol.

[17]     In light of those factors, it is difficult to see that a remand in custody would be of any benefit to the appellant.

[18]     I acknowledge the risk to the community of this type of offending.  However, electronic monitoring will help protect against that risk.

[19]     I must also acknowledge the reality that the maximum sentence available is six months’ imprisonment, the charges of dangerous driving and driving while suspended both carrying a maximum penalty of three months’ imprisonment.  Failing to stop is fineable only.

[20]     Bearing in mind the matters to which I have referred, it is in my assessment highly unlikely the appellant would receive a sentence of imprisonment, particularly given that a technically suitable address for electronic monitoring is available.

[21]     Given all those factors, the appellant should be admitted to EM bail.

Result

[22]     The appeal is allowed; EM bail is granted. The conditions will be as set out in the assessor’s report, with the amendment that the appellant is permitted to travel in the company of Kelly Lia or another other family member.

Thomas J

Solicitors:

Public Defence Service, Wellington for Appellant

Crown Solicitors’ Office, Wellington for Respondent