T v Police HC Nelson CRI 2008-442-3

[2008] NZHC 166

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2008-442-3

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 February 2008

Appearances: M K Vesty for Appellant

C P Stevenson for Crown

Judgment:      20 February 2008 at 3.30 pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.30pm on the 20th day of February 2008.

JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the refusal of bail pending sentence.

[2]      On 23 January 2008, the appellant pleaded guilty to one charge of cultivating cannabis, one of possession of cannabis, one of possession of cannabis utensils, one of unlawful possession of a pistol, and one of possession of two firearms without a licence.  He was remanded for sentence on 10 March 2008.  Application was made

for bail pending sentence, and that was refused.

T V NEW ZEALAND POLICE JUDGMENT HC NEL CRI 2008-442-3  20 February 2008

[3]      Mr Vesty for the appellant raises three main points on appeal:

a)       The District Court Judge did not take into consideration the likely length of time that the appellant would spend in custody on remand pending sentence where that time in custody affects significantly the appellant’s sentencing options, particularly where a sentence of home detention is a likely sentencing outcome.

b)The District Court Judge took into consideration an apparently “particularly sinister” connection between the appellant’s possession of firearms and the cultivation of drugs without evidence of the same.

c)       The  District  Court  Judge  did  not  hear  a  full  application  for  bail pending sentence in that the District Court Judge did not take into consideration the police position on bail (apparently not opposing).

[4]      Section 13 of the Bail Act applies.  The onus is on the appellant to establish, on the balance of probabilities, that it would be in the interests of justice in the particular  case  to  grant  bail.    The  Court  may take into  account,  instead  of  the considerations in s 8, the considerations in s 13(3).

[5]      Mr  Vesty  takes  issue  with  the  view  expressed  by  the  Judge  that  the connection between the firearms and the cultivation of cannabis was “particularly sinister”.  He submits that the circumstances in which the firearms were found (in a locked cabinet, one loaded and two unloaded) do not show a sinister connection. However, ever if that submission were accepted, that would not of itself meet the onus on the appellant to show cause why bail should be granted.  There is nothing particular to his personal circumstances which can be relied upon.   The factor principally relied upon is the effect to which the remand in custody may have on the sentencing option of home detention, if that is seen by the Court as an available option.

[6]      The fact that the remand has been in custody will not affect to a material extent the ability of the Court to consider a sentence of home detention.  Mr Vesty

submits that, if a sentence of home detention was imposed, there would be no credit for the time served in custody.  That is so in the strict sense that s 90 of the Parole Act 2002 will not apply.  However, nor will the prohibition in s 82 of the Sentencing Act 2002 apply.  Thus, the sentencing Judge may, if home detention is considered appropriate, have regard to the time spent in custody in fixing the length of home detention.

[7]      The decision to refuse bail involves the exercise of a discretion.  The onus on this appeal is on the appellant to show that that discretion has been exercised on a wrong basis.    That  onus  is  not  met  in  the  circumstances  here.    The  appeal  is dismissed.

“A D MacKenzie J”

Solicitors:         Zindels, Nelson for Appellant

Pitt & Moore, Nelson for Crown