The Queen v Wynn

[2009] NZCA 406

IN THE COURT OF APPEAL OF NEW ZEALAND

CA531/2009
[2009] NZCA 406

THE QUEEN

v

DAVID PAUL WYNN

Hearing:10 September 2009

Court:Chambers, Rodney Hansen and Fogarty JJ

Counsel:R L Thomson for Appellant

M D Downs for Crown

Judgment:14 September 2009 at 11 am

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The appellant is granted bail on the following conditions:

(a)He must immediately enter an eight week residential rehabilitation programme with Capri Alcohol Drug Gambling Treatment Trust;

(b)He must remain at the facility of the Capri Trust at 158‑160 Waipuna Road, Mt Wellington, subject to a 24-hour curfew;

(c)If he comes up for sentence on the first charges within the next eight weeks and the sentencing judge sentences him to prison on those charges, this grant of bail will automatically terminate;

(d)If he does not come up for sentence on the first charges within the next eight weeks, he must report to the Criminal Section at the Auckland High Court at 9 am on the last working day before the eight week programme ends with a view to a High Court Judge determining if bail should continue and, if so, on what terms;

(e)        Any application for variation in these terms of bail must be made to the District Court (if it has jurisdiction) or the High Court. 

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1]       Mr Wynn pleaded guilty in the District Court to charges of supplying methamphetamine, possession of methamphetamine for the purpose of supply and possession of a precursor material (“the first charges”).  While on bail awaiting sentence, he was found with 50 grams of methamphetamine in his possession and small quantities of other drugs.  He faces a further charge of possession of methamphetamine for supply and charges of possession of the other drugs (“the second charges”).  His application to the High Court for bail pending the hearing of those charges was refused by Woodhouse J: HC AK CRI 2009-090-65 21 August 2009.  He appeals against the decision.

Further background

[2]       Mr Wynn acknowledges he is addicted to methamphetamine.  Earlier this year, at his own cost, he voluntarily submitted to an 8-week residential drug treatment programme with Capri Alcohol Drug Gambling Treatment Trust.  He successfully completed the course and accepted follow-up support. 

[3]       In these circumstances he pleaded guilty to the first charges, having received an indication from Judge Kiernan that, if supported by reports, she would impose a term of home detention for the maximum period of 12 months, with special conditions of release lasting for a further six months and a term of community work in excess of 200 hours.  The date of sentence was fixed for 19 August.

[4]       In the meantime, in July, Mr Wynn relapsed and was arrested after being found with the 50 grams of methamphetamine in his sock.  He denies the charge of methamphetamine for supply, claiming the methamphetamine was for his personal use.

[5]       On 21 August Judge Kiernan was invited to give a further sentence indication, this time on the basis that Mr Wynn pleaded guilty to the further charges.  She indicated a prison sentence of four and a half years.  She made it clear that there is no prospect of a sentence of home detention if Mr Wynn were to be sentenced on all matters.  She left open the possibility that sentence could be deferred if he undertook a further course of rehabilitation while emphasising that could occur only if Mr Wynn were granted bail in the High Court.

High Court decision

[6]       Against this background, the application for bail came before Woodhouse J later the same morning.  After reviewing the history, including Judge Kiernan’s further sentencing indication, he went on to refer to the proposal that Mr Wynn undertake a further programme with Capri Trust and that he reside at the Capri facility with a 24-hour curfew.  He said this aspect of the matter caused him to hesitate in reaching a conclusion, but he had decided that bail should nevertheless be declined.  He said at [11]:

... The reason is, in my judgment, that there is a material risk of further offending while on bail.  Unfortunately for Mr Wynn the evidence available to me in respect of his commendable efforts to try to rid himself of the addiction suggests that there nevertheless are likely to be further problems leading him into further offending.  Also, and although this Court cannot at this stage make judgments in relation to the allegations of the Police, the circumstances that are admitted by Mr Wynn are not favourable to him.

This appeal

[7]       Before this Court, Ms Thomson provided confirmation that Mr Wynn had paid a substantial deposit to the Capri Trust towards the cost of a further 8-week drug treatment programme.  She submits that Woodhouse J erred in refusing to grant bail as his decision effectively foreclosed the option of Mr Wynn undertaking the Capri course.  Mr Downs acknowledged that this was the practical consequence of the refusal to grant bail but said it is clear that Woodhouse J recognised this and took it into account.  There was nothing to show he erred in the exercise of his discretion.

[8]       We do not accept that the refusal to grant bail would necessarily prevent the sentencing Judge from pursuing the rehabilitation option.  If she were persuaded of the merits of deferring sentence while Mr Wynn undertook the Capri course, there could have been a further remand while a fresh application for bail was made to the High Court in those changed circumstances.

[9]       However, there is a more direct course to the same end as we are satisfied that in refusing bail Woodhouse J overlooked a highly material consideration.  Fundamental to an assessment of whether the continued detention of an accused person is required in the public interest is an enquiry into whether the risks which militate against a grant of bail can be managed by appropriate conditions.  This Court said in B v Police(No 2) [2000] 1 NZLR 31 at [8]:

The seriousness of the charge faced will not in itself provide a justification for refusal of bail.  Refusal can be justifiable only when the prosecution demonstrates not merely that the charge is a serious one but also that there is something additional which favours detention of the accused in the public interest, and that combination of factors is not outweighed by considerations favouring bail.  The societal interest must be unable to be met by the granting of bail upon terms as to residence, reporting to police, curfew, non-association, travel restrictions and the like.

[10]     Here, the only risk identified was that of reoffending.  Undoubtedly, that was a serious risk given Mr Wynn’s acknowledged addiction and recidivist offending.  However, the terms of bail which were proposed (and again put forward before us) are designed to minimise, if not practically eliminate, that risk.  They are that bail be granted on condition that Mr Wynn enter the 8-week residential programme with Capri Trust and remain there under a 24-hour curfew.

[11]     In our view, when the greatly reduced risk of reoffending is considered with other relevant factors, such as the lengthy period of remand in custody if bail is not granted, it is clear that, the seriousness of the offending notwithstanding, bail should have been granted.  It will leave the District Court Judge free to give immediate effect to the range of available sentencing options.  It will also have the incidental benefit of enabling sentence to be imposed in the light of an interim report from the Capri Trust on Mr Wynn’s progress.

[12]     On sentence or no later than the completion of the Capri programme, it will be necessary to consider new terms of bail.  If there is agreement, these can be imposed in the District Court under s 17(b) of the Bail Act 2000.  Otherwise, a further application may be made to the High Court.

Result

The appeal is allowed.  Mr Wynn is granted bail on  the conditions stated.

Solicitors:
Crown Law Office, Wellington