The Queen v Lavea

[2007] NZCA 397

IN THE COURT OF APPEAL OF NEW ZEALAND

CA456/07
[2007] NZCA 397

THE QUEEN

v

ROMNEY MARION LAVEA

Hearing:6 September 2007

Court:O'Regan, Robertson and Arnold JJ

Counsel:C P Comeskey for Applicant

S B Edwards for Crown

Judgment:7 September 2007 at 11.30 am

JUDGMENT OF THE COURT

The application is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]       What was described as a Notice of Appeal against the refusal of a District Court Judge to grant bail under s 14 of the Bail Act 2000, pending the hearing of a substantive appeal, was filed in this Court on 4 September 2007.  Judge Sharp had that day sentenced Mr Lavea to an effective term of two years and seven months’ imprisonment in respect of 24 fraud charges on which he had been found guilty by a jury.

[2]       Section 70(2) of the Bail Act permits a person in the position of Mr Lavea to apply either to this Court or to the Judge who presided at trial for bail pending the determination of the appeal.

[3]       In either situation, the exercise of the discretion is covered by s 14 of the Bail Act.

[4]       In the circumstances of this case (where urgency is of the utmost importance) we do not determine whether this should be treated as an application for leave to appeal from that determination or as a discrete application for bail.  We are satisfied that bail should not in any event be granted although immediate action is required to determine the substantive appeal.

[5]       The critical issue before us today is Mr Lavea’s health which is detailed in the Notes on Sentencing at [13] and [14].

[6]       Because of the speed with which this matter has progressed, the file is at a very rudimentary level.  Mr Comeskey told us that the appeal against conviction will be based on the fact that there was miscommunication between his client and his trial counsel (not Mr Comeskey), and that the sentence appeal would focus on the health issue, the argument being that, because of the state of the applicant’s health, the term of imprisonment was disproportionately severe in terms of s 8(h) of the Sentencing Act 2002.

[7]       Counsel also responsibly accepted that, if the convictions were upheld, the two years and seven month sentence already included some recognition of the applicant’s ill health and physical disability.  He would argue that recognition was insufficient.

[8]       Mr Lavea was on bail until he was convicted.  On 27 February 2007, when the jury verdicts were returned, the Judge remanded him in custody pending sentence.

[9]       There was a bail appeal heard in the High Court on 16 March 2007 and Mr Lavea was granted bail by Cooper J expressed as being until 4 April 2007 on very strict conditions.

[10]     Sentencing was delayed for some five months, mainly while investigations about Mr Lavea’s health were undertaken.

[11]     In comprehensive submissions before us, both counsel emphasised the competing issues which require balance.

[12]     The appeal clearly needs to be dealt with substantively as a matter of extreme urgency.  We note that a hearing is available on 11 October 2007 in this Court in Wellington and we direct that it be set down accordingly at that time.

[13]     In the very unusual circumstances of this case, the Court in addition is prepared to provide Mr Lavea with an opportunity to advance the appeal against sentence only as a discrete matter on 18 September 2007 in this Court in Wellington, leaving the conviction appeal to be dealt with at the later hearing.  Mr Comeskey may not wish to deal with the matter separately, but the opportunity is there if he wishes to do so.

[14]     It is clear that when the sentence appeal is heard the Court must be provided with comprehensive and detailed information as to how the Corrections Department intend to deal with Mr Lavea and his manifest problems, and an independent and objective assessment as to how he is in fact coping within the prison environment.  It seems inevitable that this information is going to be required if the conviction is sustained and the sooner it is provided the better it will be for Mr Lavea.

[15]     Having regard to the criteria set out in s 14 of the Bail Act, and on the basis that these extremely short timeframes can apply, we are not satisfied that Mr Lavea has overcome the presumption against the granting of bail pending an appeal.  We do not minimise the significant health problems from which the applicant suffers, but we must also have regard to the fact that this was serious and sustained offending by a man with previous convictions of a not dissimilar nature which undoubtedly called for denunciation and a sentence which had a deterrent aspect.  During Mr Lavea’s period in custody, the Department of Corrections should complete its assessment of his needs, together with input from such other agencies as necessary.

[16]     Should there be any immediate or urgent problems about Mr Lavea being in prison, there are proper administrative processes available for them to be responded to in a humane and timely manner.

[17]     In this assessment, and in our offering of such early dates for hearing, we have had regard to the fact that to release the applicant on bail now would create difficult and distressing consequences on his returning to custody if his appeal was unsuccessful.

Result

[18]     The application is dismissed.

Solicitors:
Crown Law Office, Wellington