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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Hertnon

Details

AGLC: The Queen v Hertnon [2009] NZCA 518
Case: [2009] NZCA 518
Decision Date: 28 October 2009

CaseChat Overview and Summary

The appellant, Gary Brian Hertnon, has appealed against a decision to remand him in custody following his guilty plea to cultivating cannabis, with a further charge pending for possession of cannabis for sale. The Court of Appeal of New Zealand heard the case on 28 October 2009 and delivered their judgment on the same day. The key legal issue before the court was whether the decision to remand the appellant in custody pending his sentencing was justified. The court examined the statutory provisions of the Bail Act 2000, particularly section 13, which applies post-conviction and requires the court to consider factors such as the likelihood of imprisonment, the time before sentencing, and personal circumstances of the defendant.

The Court of Appeal considered the appellant's case under section 13 of the Bail Act 2000, focusing on the likelihood of imprisonment as a critical factor. The appellant's cultivation of 503 cannabis plants, with an estimated yield of between $546,000 and $875,000, suggested a substantial possibility of imprisonment. The appellant's role in the cultivation process further supported this likelihood. Despite the appellant's plea of guilty and some mitigating factors, the court concluded that a sentence of around three years was probable. The possibility of home detention was deemed implausible. The court also considered the appellant's personal circumstances and logistical issues but found them insufficient to alter the balance in terms of the interests of justice.

The Court of Appeal found no basis to interfere with the decision to remand the appellant in custody. The likelihood of imprisonment and the appellant's significant involvement in the cannabis cultivation operation justified the refusal of bail. The appeal was dismissed, and the appellant remained remanded in custody pending his sentencing.

Orders