The Queen v Gledhill

[2009] NZCA 350

IN THE COURT OF APPEAL OF NEW ZEALAND

CA443/2009
[2009] NZCA 350

THE QUEEN

v

JADE GLEDHILL

Hearing:6 August 2009

Counsel:C P Brosnahan for Applicant

M Inwood for Crown

Judgment:6 August 2009 

ORAL JUDGMENT OF ROBERTSON J

THE APPLICATION FOR BAIL IS GRANTED UNTIL 3 SEPTEMBER 2009 ON CONDITION THAT MS GLEDHILL RESIDE AT 25 PLUNKET STREET, WANGANUI, SUBJECT TO A CURFEW BETWEEN 7PM AND 7AM DAILY.

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REASONS

[1]       On 27 July 2009, the applicant was sentenced, in the Wanganui District Court, to an effective term of two years and one months’ imprisonment on two charges, one under s 188(2) of the Crimes Act 1961 of wounding with reckless disregard, and the other of participating in an organised criminal group.

[2]       Ms Gledhill had pleaded guilty upon arraignment.

[3]       Ms Gledhill has appealed against the sentence on the ground that it was manifestly excessive and wrong in principle. 

[4]       There was immediately an application for bail to the sentencing Judge which was refused, notwithstanding the fact that the Crown did not oppose the grant of bail.

[5]       Amongst the factors raised is the contention that the sentence imposed is manifestly excessive when compared with others who were involved in the same offending but much more extensively.

[6]       A further complicating factor is that there was a sentencing indication which is a little opaque.

[7]       The pre-sentence report, which was very optimistic about a changed lifestyle, had recommended a community-based sentence.

[8]       The applicant is a 26 year old solo mother and is virtually a first offender.  She has been on bail for a year since the offending without problems.

[9]       I am satisfied that there is a seriously arguable case that the matter could have been dealt with by way of a community based sentence and that, even allowing for an urgent hearing in this Court, the thrust of the appeal will be diminished if Ms Gledhill remains in custody until a date can be available.

[10]     A further unusual aspect of this case is that there was not opposition by the Crown when the matter was before the District Court Judge, but it is now actively opposed.  The Crown properly notes the provisions of s 14 of the Bail Act and the approach to it as discussed in Ellis v R [1998] 3 NZLR 555.

[11]     I have given careful consideration to the matters raised in the Crown memorandum, and although I do not hold the view that this appeal is a necessary winner, there are enough unusual aspects to give me cause for concern.

[12]     I have already averted to the opaque nature of the sentencing indication, the issue of disparity, the recommendation of the pre-sentence report and I note it is a solo mother making this application which suggests that the personal circumstance is rather more than “the usual adverse consequences arising from imprisonment of a parent”.

[13]     There is always a problem of the grant of bail and then a person having to return to custody, but any applicant for bail understands that consequence and makes the application with their eyes open.

[14]     I am satisfied that the onus is in the unusual combination of circumstances met in this case.  The Court will ensure an early hearing date so that the matter may be brought to a conclusion.

[15]     Accordingly, Ms Gledhill is granted bail pending the hearing of her appeal in this Court on 3 September 2009.  She must reside at 25 Plunket Street, Wanganui, and is subject to a curfew between 7pm and 7am daily.

Solicitors:
Crown Law Office, Wellington