The Queen v Mohi

[2007] NZCA 7

IN THE COURT OF APPEAL OF NEW ZEALAND

CA37/07
[2007] NZCA 7

THE QUEEN

v

BRENDON SHANE MOHI

Counsel:Mr Mohi in person

  S B Edwards for Crown

Judgment (On the papers):     15 February 2007 at 4pm

JUDGMENT OF GLAZEBROOK J

THE APPLICATION FOR BAIL IS DECLINED.

____________________________________________________________________

Introduction

[1]       Mr Mohi was convicted of one count of attempted arson and one of arson and sentenced on 22 November 2006 to imprisonment for a term of two years and four months.  He has appealed to this Court against his sentence.

[2]       Mr Mohi applies for bail pending the determination of his appeal, pursuant to s 70 of the Bail Act 2000.  I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.

Test

[3]       The test to be applied is that set out in s 14 of the Bail Act.  Under s 14(1) of that Act, bail pending appeal is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interest of justice in the particular case to do so.  Section 14(2) provides that the onus is on the appellant to show cause why bail should be granted.

Submissions

[4]       Mr Mohi applies for bail on the basis of the likely delay in having his appeal heard.  He also relies on comments made by Chisholm J in an oral judgment issued on 11 July 2006 dismissing an appeal against an earlier (pre-trial) bail decision Chisholm J said:

[7]       It should be added, however, that the appellant’s trial needs priority.  If the trial cannot be heard before Christmas it is difficult to see how continued refusal of bail could be sustained.  Beyond that point any remand in custody is likely to exceed the sentence that he would have to serve if convicted.  If the trial cannot be heard before Christmas another bail application is likely to be successful. …

[5]       The Crown opposes bail.  It submits that Chisholm J’s remarks were in the context of a pre-trial application where different considerations apply.  In addition, Chisholm J’s remarks cannot be interpreted as an indication that the portion of the likely sentence imposed that would be required to be served (taking into account pre‑sentence detention time) would not extend beyond Christmas 2006.

[6]       More importantly the Crown submits that the appeal against sentence has no reasonable prospects of success, as the sentence imposed was within the range available to the sentencing Judge.

[7]       In terms of any element of delay causing injustice, the Crown submits that there is no serious risk that, by the time the appeal is determined, Mr Mohi will have served more time in prison that he would be required to serve in respect of any substituted sentence of less than two years and 4 months.  Mr Mohi’s current “statutory release date” is 25 October 2008.  This takes into account the period he spent on remand in custody between 28 June and 22 November 2006 (the date of sentencing).  Mr Mohi is eligible to be considered for release on parole from 8 April 2007.  In the event that the appeal against sentence is successful and results in a substituted sentence of two years or less, Mr Mohi would be required to serve half of that sentence, less the period of pre-sentence detention time.  By way of example, a substituted sentence of two years imprisonment would give a statutory release date of 28 June 2007.

[8]       The Crown submits that, in those circumstances and in the absence of apparent strength in the appeal, Mr Mohi’s right of appeal is unlikely to be rendered nugatory, provided the appeal can be allocated a fixture within the next few months.

Decision

[9]       I accept the Crown submissions.  Mr Mohi has failed to show that any injustice will arise from his remaining in custody pending the hearing and determination of his appeal.  The appeal should, however, be set down for hearing as soon as possible.

[10]     In all the circumstances, I decline the application for bail.

Solicitors:
Crown Law Office, Wellington