T v Police HC Invercargill CRI-2009-425-000005

[2009] NZHC 296

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2009-425-000005

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 March 2009

Counsel:         D G Slater for appellant

K M Siave for respondent

Judgment:      10 March 2009

RESERVED JUDGMENT OF DOBSON J

[1]      On 12 December 2008, Ms T   was remanded without plea in relation to a very substantial number of charges involving the sale of cannabis under the Misuse of Drugs Act 1975.  Since that time, there have been a number of further remands, whilst her counsel researches evidence comprised in text messages sent and received by a cell phone Ms T   was using.   Mr Slater advised this morning that a preliminary hearing has now been set in respect of the charges.

[2]      The Police opposed bail and the application was to be considered under s 8 of the  Bail  Act  2000.     The  grounds  for  opposition  included  the  likelihood  of

imprisonment given the seriousness of charges, if convictions followed, leading to

T V NEW ZEALAND POLICE HC INV CRI-2009-425-000005 10 March 2009

the implication that Ms T   may fail to appear in Court on the date to which she was remanded.  There were also concerns, given the pattern of offending reflected in the numerous charges, that she would continue to offend whilst on bail.  The Police submitted that she had previously offended whilst on bail.  The record of breach of bail history reveals that these involve shoplifting whilst on bail on two occasions, in

1994 and 1997.

[3]      The  learned  District  Court  Judge  recognised  the  prospect  of  Ms T   failing to appear on the date to which she has been remanded as a material concern, but considered that concern could be adequately managed by stringent conditions. Those conditions were expressed in His Honour’s judgment in the following terms:

•    She will reside at the address of 91 Morton Street, Invercargill.

•   She is curfewed to that address and will remain there between the hours of 6.00pm and 7.00am each night.

•    She is to present herself at the door if the Police come to do a bail check.

•   She is to report daily to the Police Station, Don Street,  Invercargill between 12 noon and 2.00pm.

•   She is not to leave the city of Invercargill.  The condition of bail will be that her travel is restricted to the city of Invercargill.

•    She is not to drive any motor vehicle.

•    She is not to enter licensed premises other than supermarkets.

•    She is not to purchase, possess or consume alcohol or illicit drugs.

•   She is not to associate with her co-offender Leon Hikiwai T  .  For the purposes of this decision I note that is her son who is also appearing in relation to matters involving the sale of illicit drugs.

•    She is to surrender any current passport presently held by her to the

Registrar of this Court.

•   She is not to apply for any passport.   The Registrar is to advise the Department of Internal Affairs Passport Division of this condition.   (I just note there that she tells me from the dock that she does not hold a current passport as it has expired.)

•   She is not to possess, use or have under her control any form of, or any kind of, cellular or mobile telephone not attached or connected to a landline.

[4]      The only one of these conditions challenged on appeal is the condition that Ms T   is not to drive any motor vehicle.  It was submitted that this condition is unnecessary and unreasonable.  It does appear that she has been able to comply with all of these conditions since being bailed in early December 2008, and has attended Court on each occasion she has been required to.  Mr Slater describes Ms T   as an extremely protective mother of two school-aged children.  Her invariable practice until bailed on the present terms was to drive the children to school in the morning, to pick them up after school, to use a motor vehicle to take them to out-of-school activities and to get them home.   In addition, she is reporting daily to the Police station, and has to do the shopping and other tasks related to running a household that involve transport within the city of Invercargill.

[5]      Police  oppose  any lessening  of  the  constraints  on  which  Ms  T    is bailed, given the continuation of their concern that she will not appear on the date to which she has been remanded, and that any lessening of the restrictions increases the prospect of her failing to appear.  Ms Siave suggested that being able to drive makes Ms T   far more mobile and therefore able to leave the area.

[6]      Given the nature of the remaining conditions, and the extent to which there is a risk of non-appearance, I am satisfied that the remaining conditions are sufficient to manage that risk.

[7]      Ms T   is entitled to be given some credit for having complied with very strict bail terms for some three months.   Part of that period was in the school holidays when the need for transporting her children may not have been the same. Although the Police might say that her demonstrated ability to comply lessens the case for a loosening of those conditions, the more positive side of that coin is that she respects the constraints and will honour the terms of her bail.

[8]      Ms T  ’s movement is still materially constrained.   Any breach of the remaining conditions is likely to see bail withdrawn, and she should be aware of that. Assuming, however, a continued commitment to honouring the terms of bail, I am satisfied that some lessening of the restriction on driving a motor vehicle is appropriate.   I accordingly substitute for the complete prohibition on driving any

motor vehicle as imposed in the District Court Judge’s decision of 12 December

2008, a condition that she is not to drive any motor vehicle except within the city of

Invercargill between the hours of 7.30am and 5.00pm each day.

Dobson J

Solicitors:

David G Slater, Invercargill

Crown Solicitor, Invercargill