T v Police HC Napier CRI 2010-441-30

[2010] NZHC 1440

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-441-30

BETWEEN  T

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 August 2010

Counsel:         A V Sharko for Appellant

F E Cleary for Respondent

Judgment:      18 August 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr T   appeals against refusal of bail.  He has pleaded guilty to a charge of burglary, some five months after an earlier not guilty plea.  Section 13 of the Bail Act applies.

[2]      The facts are that on Friday 8 December 2009 he and his two co-accused burgled a residential property, stealing a television, electric guitars, a stereo system, an X-Box and a DVD player amongst other items.  They were caught in the act but the appellant claimed that he stayed in the car and played no part in the offence.

[3]      The  application  for  bail  was  brought  on  the  basis  that  a  sentence  of imprisonment   was   unlikely.      The   co-offenders   have   received   sentences   of community work (apparently 120 hours and 60 hours) for the same offending.

[4]      The Judge acknowledged that the co-offenders have been treated leniently, but he noted that s 13 applied and held that it would be speculative to assess the appellant’s claim to a comparable sentence.  Bail was denied.  However, the Judge

did refer to the ten-year maximum for burglary, so I accept that he turned his mind to

T V NEW ZEALAND POLICE HC NAP CRI 2010-441-30  18 August 2010

the question whether imprisonment was likely in this case.  The question is whether he was wrong.

[5]      The appellant has a substantial criminal history including four convictions for burglary and one for theft from a dwelling among many other offences, some of which involved failure to comply with community-based sentences.   He has previously served short sentences of imprisonment.

[6]      In these circumstances, the question is whether he is likely to be sentenced to imprisonment.  If that is not likely, it counts against a remand in custody but it is not decisive.   The prisoner must still show cause why bail should be granted.   Other factors include the delay until sentencing and his personal circumstances.

[7]      Having regard to his history and the timing of his guilty plea, it cannot be said that imprisonment is unlikely.   Parity of treatment with co-offenders is an important consideration, but it does not compel a community-based sentence in his case.   Burglary sentences are considerably influenced by recidivism.   In terms of Senior, he is a recidivist, albeit at the lower end of the scale.  His plea will earn him a reduction of perhaps 15-20 per cent only.  I inquired whether the co-offenders are in the  same  category,  but  it  seems  they  are  not;    one  has  no  relevant  previous convictions and the other has one conviction for burglary (a Youth Court offence in

2000) and one theft from a dwelling.   Neither has previously been sentenced to imprisonment.

[8]      A further consideration is when he has to be sentenced.  I am told that is 7

September,  which is not far away.

[9]      There  are  no  personal  circumstances  that  might  indicate  that  bail  is warranted.

[10]     In the circumstances, I am not persuaded that the Judge was wrong to deny

bail.  The appeal is dismissed.

Miller J

Solicitors:

A Sharko, Napier for Appellant

Elvidge & Partners, Napier for Respondent