T v Police HC Wellington CRI-2009-441-08

[2009] NZHC 317

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-441-08

T

v

NEW ZEALAND POLICE

Hearing:         13 March 2009

Appearances: Mr Sharko for Mr T 

Mr Snape for the Crown

Judgment:      13 March 2009

JUDGMENT OF MALLON J

[1]      On 12 January 2009 Mr T   was  at  his  partner’s  home  address.    An argument occurred between the two.  During the argument Mr T   punched his partner twice with a closed fist to her upper body and kicked her once in the upper leg.  The complainant suffered bruising.  Mr T   was arrested and charged with male assaults female and released on bail.

[2]      On 11 February 2009, when on bail on the male assaults female charge, Mr T   was again at his partner’s home address.  He became involved in another argument with his partner.   The partner’s sister then attempted to intervene.   She asked Mr T   to leave and escorted him out the door and down the driveway.

Mr T   turned and kicked the sister in the mouth.  She suffered a small cut to her

T V NEW ZEALAND POLICE HC WN CRI-2009-441-08 13 March 2009

lower lip.  Mr T   was charged with male assaults female in respect of this matter and again released on bail.

[3]      Between 11 February and 16 February 2008 there appear to have been two breaches of bail.  These concerned communications with his partner.

[4]      On 16 February 2009 Mr T   entered a guilty plea on the first of the two male assaults female charges.

[5]      The notes of the District Court Judge on the bail application on that day are as follows:

[1]       Mr T  , earlier, made a bail application and I gave reasons at that point in time as to why I was declining bail.  At the end of that hearing, his mother indicated that she was present in Court and also was his partner who is the alleged victim in respect of one of these assaults.  So, I had the matter stood down so the victims [sic] advisor could speak to his partner, who indicates that she has no concern for the safety of her children and would like the defendant to have contact with them.  His mother is here at Court and she says that she would have him live at her house.

[2]       Of course, there are two alleged victims in respect of each of these assaults and I did not have any information in relation to the views of the other victim.  She has nothing to add other than that which is contained in her victim impact statement which, essentially, expresses some concern as to her own situation and that of her sister.

[3]       I take the view, in this particular case, that given the history of the defendant, given the fact that this offending did occur whilst he was on bail for similar allegations, that even though his mother has kindly offered to have him back to live with her, which is where he was prior to the second incident, that I do not have any further information before me now that would warrant me altering my decision of earlier today.

[4]       Bail is still declined.  Mr Sharko tells me there may be a change in circumstances and if that is the case, then of course leave is granted to make further application for bail.

[5]       Matters are remanded through until 10 am on Wednesday the 18th of

February.

[6]      The  notes  of  the  earlier  bail  application  referred  to  in  [1]  of  the  above decision are not before me.  On 18 February 2009 the matter came before another District Court Judge and a plea of not guilty was entered on the second of the two male assaults female charges.   A further application for bail was made.   Bail was declined.  The decision on that application is in these terms:

[2]       The defendant now applies for bail, suggesting that the fact that the complainant has moved out of Hawkes Bay to Wellington is somehow a change of circumstances.   With respect, the logic of that escapes me.   I would assume that the complainant will be here for the defended hearing, as the police will be summonsing her as a witness.

[3]       The only change of circumstances relevant to this is the guilty plea now entered to one charge and s 13 applies.  There are no grounds to review Judge Mackintosh’s earlier refusal of bail, particularly given the nature of the offending.

[4]       The defendant is remanded in custody until the 25th  of May for a probation officer’s report and sentencing on the admitted matter and for a defended hearing on the denied matter.

[7]      Mr T   was 19 at the time of the offending.  I am told that he turned 20 yesterday.   This means that s 15 of the Bail Act applied to him when the bail applications were being considered on 16 and 18 February 2009.   The Judge considering the matter on 18 February 2009 was therefore in error in applying s 13 of the Bail Act.  The Crown accepts that at this time s 15 applied and that s 15 is not subject to s 13.  The Crown accepts that I can consider the matter afresh, but that now Mr T   does not have the benefit of s 15.

[8]      In respect of bail pending sentence on the first charge, the Crown accepts that, in view of the relatively minor nature of the assault, a non-custodial sentence is potentially available to the sentencing Judge.  This assumes a suitable address for a non-custodial sentence is available and is providing that Mr T   can satisfy the sentencing Judge that he will adhere to Court imposed conditions notwithstanding his past record.  The Crown accepts that Mr T  ’s previous record is perhaps not at the worst end but there are two breaches of community work and one breach of conditions of supervision.  The Crown acknowledges that any bail risk in respect of the sister has been mitigated by her having shifted out of the Napier area.

[9]      Looking at the matter afresh I consider that bail should be granted providing suitable bail conditions are imposed to address the re-offending risks.

[10]     The  police  have concerns  about  the  bail  address  being  at  your  mother’s address.  I am told that Mr T  ’s children are also at this address and there are concerns that this inevitably leads Mr T   to have some contact with his partner. Counsel for Mr T   accepts that bail should be granted if Mr T   is able to

provide a bail address that is satisfactory to the police.  The other conditions of bail are agreed to be a non-association and non-contact order in respect of Mr T  ’s partner and her sister, and a condition that Mr T   not go out of the Napier area and a condition that Mr T   not consume alcohol.  I am told that the second male assaults female charge occurred when Mr T   was in an intoxicated state.

[11]     Accordingly bail is granted providing Mr T   has a bail address that is satisfactory to the police.   Further conditions of bail are that Mr T   does not contact/associate with his partner and her sister, that he not leave the Napier area and that he not consume alcohol.

Mallon J

Solicitors:

A Sharko, Lawyer, PO Box 639, Napier

M Snape, Luke Cunningham Clere, PO Box 10357, Wellington