The Queen v McIntosh

[2008] NZCA 574

IN THE COURT OF APPEAL OF NEW ZEALAND

CA765/2008
[2008] NZCA 574

THE QUEEN

v

ROSS WILLIAM MCINTOSH

Counsel:D Taffs for Applicant

S B Edwards for Crown

Judgment

(On the papers):          19 December 2008 at 3 pm

JUDGMENT OF ROBERTSON J

THE APPLICATION FOR BAIL PENDING THE HEARING OF THE APPEAL IS REFUSED.

____________________________________________________________________

REASONS

[1]       On 28 November 2008, the applicant was sentenced in the District Court at Greymouth to an effective term of two years and three months’ imprisonment made up of an 18 month sentence for sexual offending, a cumulative term of nine months for cannabis cultivation and a one month concurrent sentence for receiving.

[2]       On 16 December 2008, Mr McIntosh applied for bail pending the hearing of an appeal.  I indicated immediately that the question of bail could not be considered in the absence of grounds of appeal.

[3]       Grounds have been furnished and in effect contend that all matters should have been dealt with by way of non-custodial sentences, but the Judge thought that was not available.

[4]       In essence, the contention is:

(a)that efforts had been made by Mr McIntosh to seek counselling assistance even while awaiting trial; and

(b)that alternative and suitable home detention addresses were available.

The applicant submits that, had the Judge known this, “he might have formed the view that a mixture of home detention and extensive supervision” was an appropriate sentence.

[5]       Mr Taffs was also concerned as to the appeal right being rendered nugatory because of a delay in hearing the appeal.

[6]       Under s 14 of the Bail Act 2000 there is a presumption against granting bail pending an appeal.  The onus is on the applicant to demonstrate, on the balance of probabilities, that it is in the interests of justice that it be granted.

[7]       The respondent contends that the appeal has no reasonable prospect of success as the sentences imposed were clearly within the range available to the sentencing Judge.

[8]       I am not satisfied that Mr McIntosh meets the threshold, in light of the approach to non-custodial sentences discussed by this Court in a number of cases, including R v D [2008] NZCA 267.

[9]       I have made arrangements for the substantive appeal to be heard on 11 February 2009 in the Court of Appeal in Wellington.

[10]     If the Court were to allow the appeal, then the time spent in prison can be taken into account in determining the final length of the home detention sentence: R v Ford [2008] NZCA 6 at [20].

[11]     The application for bail pending hearing is accordingly refused.

Solicitors:
Crown Law Office, Wellington