The Queen v Holmes

[2009] NZCA 589

IN THE COURT OF APPEAL OF NEW ZEALAND

CA723/2009
[2009] NZCA 589

THE QUEEN

v

TRENT GRANT HOLMES

Hearing:11 December 2009 (by telephone conference)

Counsel:C P Comeskey for Applicant

M J Inwood for Crown

Judgment:11 December 2009 at 3 p.m.

JUDGMENT OF ROBERTSON J

The application for bail is refused.

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[1]        Following a jury trial presided over by Judge Davidson, the applicant, Mr Holmes, and two co-accused were convicted of aggravated burglary and injuring with intent to cause grievous bodily harm.

[2]        They were all sentenced by the trial Judge on 6 November 2009.  Mr Holmes was sentenced to two and a half years’ imprisonment on the aggravated burglary and one and a half years’ imprisonment on the other charge.  At the same time, he was convicted and discharged on two charges of breach of community work.

[3]        Mr Holmes filed a notice of appeal against his conviction and sentence in this Court’s registry on 23 November 2009.  In that notice he contends that the sentence was manifestly excessive and states that he will advance his conviction appeal on “grounds to be advised”.  Mr Comeskey, who is representing Mr Holmes on appeal, was not trial counsel.

[4]        Time is available to hear the substantive appeals in the Criminal Appeal Division of this Court in Wellington on 23 February 2010.

[5]        On 2 December 2009 Mr Holmes filed a notice of appeal relating to bail, purportedly under s 66 of the Bail Act 2000.  Section 66 governs appeals against refusals to grant bail from the High Court, not the District Court. 

[6]        This Court has considered Mr Holmes’ notice as an application for bail pending determination of his appeal under s 70 of the Bail Act.  I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.

[7]        The test to be applied is set out in s 14 of the Bail Act:  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.

[8]        Mr Comeskey urges that bail should be granted in this case because of:

(a)the strength of the appeal against sentence.  There was a recommendation for home detention in the pre-sentence report and it is submitted it would be unjust if the applicant were to effectively serve the sentence he was appealing before the appeal could be heard;

(b)it would be more productive if the applicant were free to attend the full time residential care programme in Feilding with an emphasis on rehabilitation, and bail is sought on condition that he is at the programme until the appeal is heard;

(c)the Judge, in sentencing, gave insufficient weight to the lesser role that the applicant played in the offending and particularly the uncontroverted evidence that he had intervened to stop the continuation of the violence which was being inflicted on the victim; and

(d)it was proper that the applicant should be in a holding pattern pending the hearing of the appeal.

[9]        I am not satisfied that the threshold test for bail is adequately supported by the proposed grounds of appeal against sentence.

[10]       Notwithstanding the optimistic enthusiasm of the probation officer, it is to be remembered that Mr Holmes was convicted of two serious charges.  He was clearly not the main protagonist in the offending, but it was offending of the type which depends on multi-person involvement.  He was prepared to enter uninvited the home of another person and to involve himself in the administration of rough “justice”.  That was the case even though Mr Holmes came to his senses earlier than his co-offender.  It is also significant that, while awaiting trial on two separate occasions, he breached the terms of a sentence of community work that had been imposed for earlier offending.

[11]       When he came to the conclusion of his sentencing remarks, Judge Davidson said:

[27]       Mr Holmes, you played a significantly lesser role.  You were relatively young at the time.  You have few previous convictions and you have made real efforts to turn your life around.  However, I simply cannot see how, from a starting point of 5 years’ imprisonment, I can reach a sentence of 2 years’ imprisonment or less.  To my mind it is simply impossible and would involve me in judicial gymnastics that I am simply not prepared to do.

[12]       It could not be said that the sentence of two and a half years’ imprisonment was clearly outside sentencing discretion.  The sentencing assessment was made by the Judge who presided at the trial and who was in a strong position to make an evaluation of Mr Holmes’s culpability.

[13]       It cannot be said that, by remaining in custody, Mr Holmes’s appeal against sentence will be rendered nugatory as the period in prison can be factored in to any community based sentence.

[14]       Mr Holmes chose not to speak to the police when he was apprehended after the offending, and he did not give evidence.  The manner in which the Judge viewed the matter at sentencing, therefore, is hardly surprising.

[15]       Without identified grounds of appeal against conviction, it is impossible to evaluate what chance of success this element of the appeal may have.

[16]       This Court can deal with the substantive appeal in a little over two months and I am not satisfied that the interests of justice will be compromised if the applicant is remanded in custody until that time.

[17]       The application for bail is accordingly refused.

Solicitors:

Crown Law Office, Wellington