The Queen v Chun

[2008] NZCA 186

IN THE COURT OF APPEAL OF NEW ZEALAND

CA353/2008
[2008] NZCA 186

THE QUEEN

v

RAYMOND ELESIO JOSEPH NGAU CHUN

Telephone

Conference:    25 June 2008

Counsel:G Gotlieb for Applicant

N P Chisnall for Crown

Judgment:25 June 2008 at 3.45 pm 

JUDGMENT OF ELLEN FRANCE J

The application for bail is dismissed.

REASONS

[1]       The applicant pleaded guilty and was convicted of one count of importing a Class C controlled drug, psuedoephedrine.  He was sentenced to two years imprisonment by Judge David Harvey on 10 June 2008:  DC MAN CRI-2007-092-013740.

[2]       The applicant has appealed to this Court against 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 under s 393(2)(d) of the Crimes Act 1961.

[3]       The test to be applied 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.

[4]       In seeking bail, the applicant emphasises two of the factors in s 14(3), namely, the prospects of success of the appeal and the appellant’s personal circumstances.

[5]       As to the first factor, Mr Gotlieb on behalf of the applicant says that the appeal is brought on the basis a sentence of home detention should have been imposed.  Mr Gotlieb points out that the applicant was a first offender, had pleaded guilty, and there were other mitigating features.  Mr Gotlieb also says he was taken by surprise at the imposition of a prison term given the discussions in the course of the sentence indication process.  If he had understood home detention was not going to be imposed, he advises an adjournment of sentencing would have been sought to obtain further information, for example, about the effect of prison terms on the applicant’s immigration status.

[6]       The personal circumstances relied upon arise from the fact the applicant has four children aged from 9 – 15 years.

[7]       The Crown opposes bail on the basis that the applicant has not satisfied the onus in s 14.

[8]       It is difficult on the limited information before me to form any concluded views on the strength of the appeal.  However, it is an appeal from the exercise of a discretion in the context where the sentencing judge has essentially concluded a custodial sentence is necessary for reasons of general deterrence and denunciation.  In terms of the mitigating factors, it appears the argument on appeal will be that more weight should have been given to these factors rather than that relevant factors were overlooked.

[9]       As to any expectation of the outcome arising from the sentence indication process, Judge Harvey (I have only the unsigned sentencing remarks) says at [3] that it was not suggested “as part and parcel” of the sentence indication that the applicant would receive home detention.  That is consistent with Mr Chisnall’s instructions from the Crown Solicitor.  Mr Gotlieb says he is seeking a transcript of the various proceedings but at this point I have approached the matter on the basis set out in the sentencing remarks.

[10]     As to the applicant’s personal circumstances, there is no more than the unfortunately not uncommon situation which arises when a parent is sentenced to a custodial term.

[11]     In these circumstances, I am not satisfied it is in the interests of justice that bail should be granted and the application for bail is dismissed. 

[12]     Obviously, given the length of the term of imprisonment the appeal should be dealt with urgently and there is no reason why the matter cannot be dealt with as such.  

Solicitors:

Crown Law Office, Wellington