The Queen v Saxton

[2008] NZCA 166

IN THE COURT OF APPEAL OF NEW ZEALAND

CA143/2008
CA144/2008
[2008] NZCA 166

THE QUEEN

v

DAVID SAXTON
MORGAN SAXTON

Counsel:C Morrall for Applicants

T Epati for Crown

Judgment:12 June 2008 at 4 pm

BAIL JUDGMENT OF ROBERTSON J

Each applicant is granted bail, pending the hearing of the appeal, on the following terms:

(a)       that at all times they will reside in Haast;

(b)they are not to be involved in any way with mining or trading or otherwise with pounamu;

(c)they are not to fly over or enter on to the Cascade Plateau in the Department of Conservation Estate in the South Island; and

(d)they are not to fly any aircraft under any circumstances between dusk and dawn unless specifically required to do so by the police for search and rescue duties.

____________________________________________________________________

REASONS

[1]       David Saxton and Morgan Saxton (father and son) were convicted by Judge MacAskill on 25 October 2007 on a representative charge of theft of pounamu between October 1997 and September 2002.  They were sentenced on 15 February 2008 respectively to two years and nine months’ imprisonment and two years and six months’ imprisonment.

[2]       They have both appealed against both conviction and sentence.

[3]       They have made an application for bail pending hearing.

[4]       The trial was before the Judge alone, and the verdict runs to some 145 pages.

[5]       The case is unusual and the circumstances are comparable with those considered by this Court in an unsuccessful appeal against conviction only in R v Hutton [2008] NZCA 126.

[6]       However, in this case, a substantial part of the defence was Mäori customary law and colour of right.  The grounds of appeal against conviction are mainly rooted in that aspect of the case.

[7] The appeals against sentence are on the basis that the sentences were wrong in principle and particularly the Judge failed to direct himself that home detention could have been available under s 57 of the Sentencing Amendment Act 2007.

[8]       Section 14 of the Bail Act 2000 creates a presumption against granting bail pending an appeal.  The onus is on an applicant to demonstrate that it should occur.

[9]       It is common ground that, because of the volume of the issues being raised, the appeals will take some time to prepare and possibly up to three days to hear.

[10]     There is an issue about the sentence which is at least arguable, and by the time the matter comes on for hearing that sentence issue will effectively be redundant.

[11]     In those circumstances, I am satisfied that bail should be granted pending hearing of the appeal.  Each applicant is granted bail on the following terms:

(a)       that at all times they will reside in Haast;

(d)they are not to be involved in any way with mining or trading or otherwise with pounamu;

(e)they are not to fly over or enter on to the Cascade Plateau in the Department of Conservation Estate in the South Island; and

(f)they are not to fly any aircraft under any circumstances between dusk and dawn unless specifically required to do so by the police for search and rescue duties.

[12]     Leave is reserved to apply for any variation on the terms of bail.

Solicitors:
Bray Morrall, Christchurch, for Applicants
Crown Law Office, Wellington