T v Police HC Wanganui Cri-2010-483-6

[2010] NZHC 44

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-483-000006

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 February 2010 (by telephone) Counsel:        P J Kaye for appellant

J M Woodcock for respondent

Judgment:      5 February 2010

RESERVED JUDGMENT OF DOBSON J

[1]      This is an appeal from a decision to decline Mr T   bail.  The original decision  was  made  by  Judge  Radford  in  the  Wanganui  District   Court  on

26 November 2009.

[2]      Mr T   has been charged indictably with burglary, wounding with intent to cause grievous bodily harm, commission of a crime with a firearm, four charges of threatening to kill, two of injuring with intent to injure, theft from a dwelling as well as driving whilst suspended and operating a vehicle with sustained

loss of traction.

T V NEW ZEALAND POLICE HC WANG CRI-2010-483-000006  5 February 2010

[3]      Mr  T    seeks  electronically  monitored  bail  and  has  proposed  an address in Masterton that is occupied by the family of his current partner, Ms Corlett. Bail on any terms is opposed, and the Police had provided to the District Court Judge relatively full reports on the grounds for opposing bail, and in respect of the application for bail with electronic monitoring.

[4]      Mr T   has a previous conviction for a specified offence as defined in s 10(2) of the Bail Act 2000 (the Act) and accordingly his application for bail is to be considered under that section.  Materially, that triggers an onus for Mr T   to satisfy the Court on the balance of probabilities that he will not commit any offence involving violence against, or danger to the safety of, any other person whilst on bail.  A bail decision under s 10 requires the Court to treat the need to protect the safety of victim of alleged offending as a primary consideration.

[5]      Mr Kaye submitted that the District Court Judge erred in not considering the application by reference to s 10 of the Act.   That is correct.   However, I accept Ms Woodcock’s point that, to the extent this was an error, it is not one that can advance the appeal because the prospects of bail when considered under s 10 are more difficult for Mr T   to make out, rather than less, because of the onus on him under the section.

[6]      Mr Kaye also criticised the District Court decision for attributing far too much weight to a risk of interference with the complainant, and too little to the balancing protections available under the proposals for electronically monitored bail at a substantial distance from Wanganui.  In addition, he submitted that the District Court Judge gave far too much emphasis to a previous breach of bail and multiple offending whilst on bail, without any adequate analysis of the nature of the breach and those offences.

[7]      The current charges relate to an allegedly violent altercation arising out of a transaction in which Mr T   was pursuing the purchase of a rural property some distance out of Wanganui that was at the time occupied by the female complainant and her partner.  It is alleged that Mr T  , accompanied by his current partner, attacked the female complainant on a number of occasions, including

the use of a butcher’s knife to make cuts to her ear, in the course of numerous threats to kill her.  He also is alleged to have stolen a number of firearms from the residence on  the  property,  some  of  which  have  apparently  subsequently  been  returned. Mr T   is the president of the Wanganui Hells’ Angels motor cycle club.  The threats were allegedly conveyed in terms that if he could not do the complainant further violence, then his “soldiers” would.  It is also alleged that one of the stolen firearms was pointed at the complainant, that Mr T   pulled the trigger but that the weapon did not fire.

[8]      If  the  charges  are  made  out,  then  they  are  very  serious  and  Mr Kaye realistically does not resist the proposition that, on conviction, Mr T   would most probably receive a very substantial term of imprisonment.

[9]      However, Mr Kaye seeks to downplay this aspect by characterising the case as a weak one with no independent witnesses, it being a matter of the competing recollections  of  the  complainant  and  Mr T  .    All  the  charges  will  be defended.

[10]     For the Police, Ms Woodcock submits that they assess the case as a strong one.  For the purposes of the present appeal, an altercation on some terms appears to have occurred and there are apparently photographs of injury to the complainant consistent with her allegations.   Accordingly, I am not prepared to accept that the Police case is a weak one.

[11]     The first consideration under s 10(5) of the Act is whether Mr T   can satisfy the Court on the balance of probabilities that he will not, whilst on bail, commit any offence involving violence against, or danger to the safety of, any other person.   The complainant’s version of the violent confrontation giving rise to the present  charges  suggests  a  real  determination  on  Mr T  ’s  part  to  use violence to advance his own interests.   The nature and extent of his previous convictions, including offending whilst on bail, provide a measure of support for that inference.   Mr T   has some 20 offences which occurred whilst on bail, including  burglaries,   common   assault,   two   offences   of   possessing   a   pistol, possession of a knife in public and possession of an offensive weapon.  That is more

than sufficient to demonstrate a propensity not to curtail unlawful and violent activities, despite being on bail.

[12]     Mr T   has in total some 33 convictions, although Mr Kaye is correct in characterising many of them as relatively minor, on which the sentences were lenient to an extent suggesting the factual circumstances of the offending were not particularly serious.  However, the history of convictions reflects a complete absence of respect for the law and preparedness to use violence and commit dishonesty offences.  He has a 2002 conviction for wounding with intent to injure, on which he was sentenced to imprisonment, and a 1999 conviction for assault with a weapon on which he was given a suspended prison sentence.

[13]     Given that criminal history in the context of the allegations in relation to the current charges, I am not satisfied that Mr T   would not commit offences involving violence if bailed.

[14]     These same considerations influence the necessary assessment under s 10(6) of the Act, namely the need to protect the safety of a victim of the alleged offending, which  is  to  be treated  as  a  primary consideration.    I do  not  accept  Mr Kaye’s submission that the absence of further violent confrontation with the complainant since the incident giving rise to the charges in early October 2009 means that there is no ground for concern about the safety of the complainant.  The seriousness of that original  confrontation  is  consistent  with  on-going  enmity  and  the  history  of offending justifies the high level of concern the complainant apparently has.  That level of concern is exacerbated by the isolated location, the nature of the original confrontation, and the threats that there would be further violence.  The complainant apparently does  not  treat  the  distance between  Masterton  (where Mr T   would be located if granted e-bail on the terms he proposes) and Wanganui as any effective protection for her, and the Police endorse that concern as reasonable.

[15]     Giving primacy to the protection of the victim that s 10(6) warrants in the present circumstances is another strong factor against granting bail.

[16]     If it were necessary, in addition, to reflect the considerations under s 8(1) of the Act, Mr Kaye argues that there are no grounds for concern that Mr T   would fail to appear in Court, given his track record of answering bail on previous occasions.   As against that, the Police are concerned that the seriousness of the charges faced, his network of contacts and ready ability to avoid the Police means that this risk is indeed a real risk here.   In support of this concern, the Police cite Mr T  ’s complete lack of co-operation with the Police when he himself was shot by members of another gang whilst riding his motor cycle in Hawke’s Bay. Apparently preferring to settle his own scores privately, he avoided the Police, was eventually summonsed to appear in the High Court as a witness, but failed to appear to give evidence.

[17]     On this basis, I accept that there is a risk that he might fail to appear.  As to the remaining considerations in s 8(a)(ii) and (iii), namely the risk of interference with witnesses and of offending whilst on bail, they are effectively covered by the considerations already undertaken under s 10(5) and (6).

[18]     Accordingly,  Mr T    has  failed  to  satisfy  me  that  bail  should  be granted in terms of s 10(4).   Even if the different onus under that section did not apply, I would be inclined to come to the same conclusion as the District Court Judge did, on considerations under s 8.

[19]     The appeal is dismissed.

Dobson J

Solicitors:

Armstrong Barton, Wanganui for respondent

Counsel:

Peter J Kaye, Auckland for appellant