T v Police HC Tauranga CRI-2010-470-35

[2010] NZHC 2241

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2010-470-35

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2010 (Heard at ROTORUA)

Appearances: Mr W Nabney for Appellant

Mr D McWilliam for Respondent

Judgment:      13 December 2010

(ORAL) JUDGMENT OF LANG J [on appeal against refusal of bail]

Solicitors:

Crown Solicitor, Tauranga

Mr W Nabney, Tauranga

T V NEW ZEALAND POLICE HC TAU CRI-2010-470-35  13 December 2010

[1]      Mr T   faces charges of being in possession of methamphetamine for supply, possession of utensils, consuming methamphetamine and resisting police. All of the charges arise out of an incident that occurred at approximately 11.45 am on 29 November 2010.

[2]      At that time the police conducted a bail check at an address in Papamoa. Upon arrival, they spoke to an occupant of the address who told them that the person in respect of whom the check was to be conducted was in a garage on the property that had been converted into a living area.  When the police entered the garage, they found Mr T   seated in the room and with a glass pipe in his hand.  Seeing the police enter the garage, he allegedly immediately attempted to conceal the pipe.  He then ignored the directions by the police to remain seated and endeavoured to escape. When the police subdued Mr T  , they found three bags containing a substance likely to be methamphetamine weighing in total approximately one gram near him.

[3]      The  summary  that  was  prepared  for  the  bail  hearing  records  that  the occupants of the address told the police that Mr T   had come to the address in order to sell them three quarter gram bags of methamphetamine.  When the police looked at Mr T  ’s cellphone, they found a number of text messages that suggested he had been dealing in methamphetamine at street level.

[4]      When the police spoke to Mr T   about the methamphetamine, he told them that he had come to the address to smoke methamphetamine and that he was doing that when the police arrived.  He denied being in possession of the three bags or of offering to sell any drugs.

The Judge’s decision

[5]      Judge Treston took the view that Mr T   presents as a flight risk because of the fact that he is not a New Zealand citizen and he is now in New Zealand illegally.   The police believe that he will attempt to leave the country even if his passport is confiscated.

[6]      Secondly, the Judge considered that there is an unacceptable risk that Mr T   might reoffend again if released on bail.   He pointed to the fact that Mr T   had been charged with driving with excess breath alcohol when he was on bail from an earlier charge of wounding with intent to injure.

[7]      The Judge took the view that, taken together, there was just cause for his continued detention and that  it was appropriate to remand him in custody.

[8]      On appeal, counsel for Mr T   submits that the Judge gave undue weight to the prospect that Mr T   may present as a flight risk.  He also submits that Mr T  ’s past history does not demonstrate that he is a person who is likely to reoffend if granted bail.

Decision

[9]      A grant of bail is a discretionary exercise.   This Court will not generally interfere simply because a Judge has given too much weight to one relevant factor or not given sufficient weight to another relevant factor.  Questions of fact and degree are involved, and a degree of latitude must be allowed.

[10]     As  matters  currently stand,  I agree  with  the  Judge’s  assessment  that  the likelihood that Mr T   may reoffend if granted bail is sufficiently great that it presents a problem for him.  He is said to have told the police that he is addicted to methamphetamine.  He admits that he was consuming it on the night when he was found by the police, and bags of methamphetamine in saleable quantities were found very near to him.   The material on his cellphone also suggests that he has been dealing at street level.

[11]   Mr T   is currently unemployed.    If he continues to consume methamphetamine, it is virtually inevitable that he will resort to dealing in the drug to fund the acquisition of methamphetamine for his own consumption.   He is currently unemployed.  He has no immediate support network around him because he and his wife have separated, and she has apparently taken out a protection order

against him.  If released on bail, he proposes to reside in a caravan at a motor camp in the Tauranga area.

[12]     It seems to me that a stringent curfew would certainly not prevent Mr T   from consuming drugs.  It may also not prevent him from dealing in drugs because others may be prepared to come to him for drugs during evening hours.  I do not see how those risks can properly be managed by any conditions that the Court could impose.

[13]     During the hearing I canvassed with counsel the possibility that Mr T   might submit to some form of random drug testing programme to ensure that he remain drug-free if granted bail.   In the end, that did not appear to be a practical solution.

[14]     I have therefore come to the conclusion that the Judge was right to identify the risk of reoffending on bail as being a real issue in this case.  The only matter that gives me cause for concern is the length of time that Mr T   is likely to remain in custody on remand.  He has not yet been committed for trial, and it is unlikely that that step in the process will occur before early March 2011.   For that reason it is unlikely that he will appear at first callover in the District Court before April 2011. As matters currently stand in the Tauranga District Court, it is unlikely that a trial will be able to be allocated before August or September 2011.

[15]     Counsel for the respondent points out that Mr T  ’s trial is likely to be a suitable candidate for a standby trial, and that it would be given priority if he is remanded in custody.  That may be the case, but even so I would be surprised if a trial date could realistically be set before May or June 2011.

[16]     This means that Mr T   is likely to remain in custody for at least seven to eight months before trial.  If convicted, he is likely to face a starting point of two and a half to three and a half years imprisonment depending on the level of culpability that he is assessed to have.  On that basis he would be eligible for parole around ten to 15 months after being remanded in custody.

[17]     The matter is relatively finely balanced in relation to this particular issue, but the answer is not so plainly in favour of Mr T   that he must be released at this stage to avoid the risk that he will spend more time in custody on remand than he would serve if convicted.  I wish to make it clear, however, that my decision is based on the premise that the Crown will do everything in its power to ensure that a trial date is allocated around the middle of next year.  If that proves not to be the case, I would regard it as a probable change in circumstances that would justify Mr T   reapplying for bail.

[18]     Likewise, he may wish to apply again based on change of circumstances in the event that he and his counsel are able to devise a set of conditions that could properly address the risk of reoffending whilst on bail in the future.

[19]     For present purposes, however, the appeal is dismissed.

Lang J