The Queen v Alexander

[2007] NZCA 134

IN THE COURT OF APPEAL OF NEW ZEALAND

CA129/07
[2007] NZCA 134

THE QUEEN

v

JOHN BORRIE ALEXANDER

Counsel:Appellant in person

S B Edwards for Crown

Judgment:18 April 2007 at 3 pm

JUDGMENT OF ELLEN FRANCE J

The application for bail is dismissed.

REASONS

Introduction

[1]       The appellant was convicted of possession of cannabis for supply and was sentenced on that charge to a term of two years and six months imprisonment.  He was also convicted of a number of charges under the Arms Act 1983 and on other drug related charges.  Concurrent sentences were imposed on these charges.

[2]       The appellant has appealed to this Court against his sentence.  He has applied for bail pending the determination of his appeal pursuant to s 70 of the Bail Act 2000.  I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.

Applicable principles

[3]       The test to be applied in relation to the application is that set out in s 14 of the Bail Act.  Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.  Section 14(2) provides that the onus is on the appellant to show cause why bail should be granted.

The application for bail

[4]       The application for bail is made on the basis that the appeal has good prospects of success.  Further, bail should be granted because, if his sentence is reduced on appeal to a term of 24 months or less, the appellant will have completed that sentence.  That is because he will have served 12 months imprisonment on 9 May 2007.

[5]       The Crown opposes bail.  The Crown submits that the appeal against sentence has limited prospects of success as the sentence imposed was within the range available to the sentencing judge.

[6]       In this context, the Crown notes that the appellant does not dispute the sentencing Judge’s assessment that the cannabis offending is within category two of R v Terewi [1999] 3 NZLR 62 (CA) and so warranting a starting point in the range of two to four years imprisonment. The Crown also points out that there is also no challenge to the nine month discount for the guilty plea. Instead, the focus is on the starting point of two years and ten months. There was a five month uplift from that point for the aggravating feature of possession of a firearm and the appellant does not dispute the appropriateness of that uplift.

[7]       The Crown also submits that there is no serious risk that by the time the appeal is decided the appellant will have served more time in prison than he would be required to serve in relation to any substituted sentence of less than two years and six months imprisonment.

[8]       The Crown submissions record that the appellant’s “statutory release date” is 17 November 2008.  This takes into account the period he spent on remand in custody between 9 May 2006 and 7 March 2007 (the date of sentencing).  This pre‑sentence detention time is also allowed for in determining parole eligibility, so the applicant was eligible to be considered for release on parole from 9 March 2007 and had a hearing scheduled before the New Zealand Parole Board on 17 April.  (The Crown submissions record the parole eligibility date as 19 March 2007 but the appellant has provided further information which shows that date as 9 March 2007.)

[9]       In summary, the Crown argues it is unlikely the sentence will be reduced and even less likely it will be reduced to two years or below.

Decision

[10]     I accept the Crown submissions.  The appellant’s appeal focuses on the assessment by the sentencing Judge of the seriousness of the offending in a context where there is no challenge to the characterisation of the offending in terms of the applicable sentencing guidelines.  In these circumstances, the appellant has not shown that any injustice will arise from his remaining in custody pending the hearing and determination of his appeal. 

[11]      The appeal should, however, be set down for hearing as soon as possible.

[12]     In all the circumstances, I decline the application for bail.

Solicitors:

Crown Law Office, Wellington