Thanabu v Police HC Auckland CRI 2005-404-0185

[2005] NZHC 1313

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-0185

BETWEEN  THIYAGALINGAM THANABU

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:         3 June 2005 Appearances: P Davey for Appellant

K Glubb for Respondent Judgment:     3 June 2005

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland Counsel:

P Davey, PO Box 3320, Shortland Street, Auckland

THIYAGALINGAM THANABU V NEW ZEALAND POLICE HC AK CRI 2005-404-0185 [3 June 2005]

[1]Mr Thanabu faces the following charges:

a)Threatening to kill his wife on 16 March 2005

b)Breach of a protection order on 16 March 2005

c)Male assaults female, namely his wife on 16 March 2005

d)Breach of a protection order on 18 March 2005

e)Loitering near the place of residence of a protected person, namely his wife, while a protection order was in force. That offending is alleged to have occurred between 20 and 25 April 2005

f)Breach of a protection order on 29 April 2005

g)Threatening to kill his wife on 29 April 2005

h)Threatening to kill his brother in law on 29 April 2005

[2]                 Mr Thanabu sought bail in the District Court on 12 May 2005. At that stage he only faced four charges; namely, two of breach of a protection order and two of threatening to kill. Bail was declined by Judge Taumaunu.  Mr  Thanabu  now appeals against that decision.

[3]                 Mr Davey, in comprehensive submissions for which I compliment him, has said everything that could possibly be said on behalf of his client in support of the appeal.

[4]                 Mr Davey has drawn my attention to copies of statements made by Mrs Thanabu and her brother, which he says, particularly in relation to the threatening to kill charges, do not substantiate the version of events put forward by the Police before Judge Taumaunu.

[5]                 I make it clear that on the information the Judge had before him, I regard him as perfectly right to have declined bail. Mr Davey informs me that a subsequent application for bail was made before Judge Taumanu on 20 May 2005. Even, at that time the information currently before me was not available to the District Court Judge. Further, no notes of what was said by the Judge have been transmitted to this Court. Accordingly, I propose to deal de novo with the  question of bail assuming that the reasons for declining bail were those on which the Judge relied when giving his initial decision.

[6]                 Mr Davey acknowledges that the Court will have concerns about the issues raised but submits that any risk can be managed adequately by the terms of bail proposed. Those terms include residence with a named person at West Harbour (some distance from where his wife resides) and an opportunity to work on the North Shore. Mr Davey submits that bail conditions fashioned to ensure that Mr Thanabu has no opportunity to come into contact with his wife should manage  adequately risks of re-offending that might otherwise assume prominence.

[7]                 Mr Davey has also pointed out that the charges of breach of a protection order carry a maximum term of imprisonment of six months. There is a defended hearing allocated to deal with all charges in the District Court at Auckland on 10 August 2005. If Mr Thanabu is held in custody, he will in effect, have served one  half of the maximum penalty for that offence and that will be a time at which he would be entitled to apply for parole should he actually have been sentenced to that penalty.

[8]                 Mr Glubb submits, for the Crown, that risk of re-offending cannot be managed having regard to the history of the matter to which I shall refer shortly. Mr Glubb submits that continued detention pending the defended hearing in the District Court is justified and the appeal ought to be dismissed.

[9]                 As I have indicated, I approach the question of bail de novo. The following factors appear to me to assume some significance:

a)First, in cases involving a breach of a protection order the Court is obliged in determining whether or not to grant bail to regard as the paramount consideration the need to protect the victim of the alleged offence: see s8(4) Bail Act 2000. While that point is militated somewhat in this case because of the issue to which I have referred concerning the length of time Mr Thanabu might be in custody pending a hearing, the legislative direction, nevertheless, suggests to me that on the other charges, all of which involve interaction with his wife and her family, that considerable weight ought to be given to the view of the alleged victims.

b)Second, the history of violent interaction between Mr Thanabu and his wife does not inspire confidence that Mr Thanabu will not breach terms of bail. On 17 January 2005, Mr Thanabu was charged with assaulting his wife, the charge being male assaults female. He was granted bail by the District Court. Yet, on 23 January 2005 he committed four further offences on which he was convicted and sentenced on 21 February 2005. Those offences were common  assault, male assaults female, and two contraventions of the protection order. Notwithstanding that Mr Thanabu was coming before  the Court for the first time, he was sentenced to  a term of imprisonment of three months on each charge to be served concurrently with  leave to apply for home detention declined. The fact  that  he was prepared to offend on bail is significant.

c)Third, Mr Thanabu was released from serving his sentence of imprisonment in March 2005. Shortly after that release on 18 March 2005 the first of the alleged offences occurred. Again, that does not inspire confidence that Mr Thanabu if released on bail would not re- offend.

[10]             Those factors seem to me to determine the position adversely to Mr Thanabu. The charges of threatening to kill, specifically, assume some importance, carrying maximum penalties of 7 years imprisonment.

[11]             I discard, for the purpose of this decision, the allegation regarding Mr Thanabu’s wife because, on the basis of the statements shown to me, that does not appear to be made out. Nevertheless, the threat to her brother appears to have been made in a context that involved inter-familial activity and the Judge who hears the defended hearing will be best placed to assess the effect of the words alleged to have been uttered, if in fact they were found to have been uttered, on this occasion.

[12]             Threatening to kill cases, where convictions are entered, are notoriously difficult for the purposes of assessing sentence as much turns on the impression as to likely future risk gained by the trial Judge.

[13]             In my view, this case is one in which continued detention for just over a further period of two months is justified pending the defended hearing. The risks of re-offending are simply too great to be managed through the imposition of conditions, however, well meaning those who seek to have Mr Thanabu comply with his lawful obligations may be.

[14]For the reasons I have given, the appeal against refusal of bail is dismissed.

P R Heath J