The Queen v Hertnon

[2009] NZCA 518

IN THE COURT OF APPEAL OF NEW ZEALAND

CA651/2009
[2009] NZCA 518

THE QUEEN

v

GARY BRIAN HERTNON

Hearing:28 October 2009

Court:William Young  P, Arnold and Ellen France JJ

Counsel:N J Sainsbury and L A Scott for Appellant

M J Inwood for Crown

Judgment:28 October 2009 

ORAL JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1]        The appellant pleaded guilty on 12 October 2009 to a charge of cultivating cannabis and has been remanded until 20 November 2009 for sentence.  We understand that on that day he will be required to plead to a further (but associated) count of possession of cannabis for sale.  When remanding the appellant for sentence, Miller J, at the request of the appellant’s counsel, directed that the pre‑sentence report address the possibility of home detention but nonetheless refused bail; this given the probability that the appellant will be sentenced to imprisonment.

[2]        The appellant now challenges in this Court the decision to remand him in custody.

[3]        The general considerations which are relevant to a bail determination are provided for in s 8 of the Bail Act 2000 whereas s 13 is applicable post-conviction.  Although both sections are relevant, we think it right to focus on the latter provision; this given its specificity in the present context and the approach taken by the Judge. That section provides:

13          Exercise of discretion when considering bail pending sentencing

(1)         If a defendant is found guilty or if a defendant pleads guilty, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

(2)         The onus is on the defendant to show cause why bail should be granted.

(3)         When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:

(a)whether the defendant is likely to receive a sentence of imprisonment:

(b) the likely length of time that will pass before the defendant is sentenced:

(c) the personal circumstances of the defendant and the defendant's immediate family:

(d)         any other consideration that the court considers relevant.

(4)         If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.

[4]        The relevant principles which apply in this situation were discussed by this Court in R v Leone [2009] NZCA 325.

[7]         … We are of the opinion that when trial judges consider bail following conviction, they should address the likelihood of imprisonment as relevant in the following respects:

(a)         If imprisonment is not a real or substantial possibility, s 13(4) will apply (and bail would ordinarily be granted).

(b)         Under s 13(3)(a) the judge must not only address whether there is a real or substantial possibility of imprisonment but also form a view as to how likely it is that such a sentence will be imposed.  The more likely (or probable) a sentence of imprisonment, the more likely it is that bail will be refused.

[5]        Judges will naturally be reluctant to predetermine the outcome of a sentencing hearing and it is unrealistic to expect a decision to refuse bail to be predicated on a definitive exclusion of the possibility of a non-custodial sentence.  In this context, we think it right to emphasise that the bare possibility that a sentence of home detention might be imposed does not itself engage s 13(4) and is thus not logically inconsistent with a refusal of bail.

[6]        We also note that the time which must elapse before sentence, a factor under s 13(3)(b), is not particularly long.

[7]        The cultivation count involves 503 plants and their yield has been estimated at being between $546,000 and $875,000.  The appellant’s role involved assisting with the planting, watering, weeding and protection of the plants from pigs, building a harvesting shed in which the cannabis was dried and making available the land on which the growing operation occurred.  The appellant accepts that the offending is within category three of R v Terewi [1999] 3 NZLR 62 (CA). That would indicate a starting point sentence of at least four years imprisonment. There are some mitigating factors associated with the appellant’s health and his circumstances at the time of the offending. As well, there is his plea of guilty, albeit the appellant accepts that this was so late as to warrant a restricted reduction – somewhere between 20 per cent and 10 per cent. We should note that as well there may be an issue as to assistance with the authorities but since this led nowhere, the Crown does not see it as warranting a discount. Overall, we are left with the view that an orthodox sentencing exercise is likely to produce a sentence of around three years. Despite this being a transitional case, the possibility of home detention is not a very plausible outcome.

[8]        The personal circumstances relied on by the appellant and some logistical issues, associated with obtaining medical reports in relation to preparation for the sentencing hearing, are not such as to alter the balance in terms of the interests of justice.

[9]        Accordingly we see no basis for interfering with the refusal of bail and the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington