Tiopira v Police HC Dun CRI 2008-412-000031

[2008] NZHC 2441

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2008-412-000031

DAVID TIOPIRA

Appellant

v

POLICE

Respondent

Hearing:         30 July 2008 (Heard at Timaru)

Appearances: T D Lawrence for Appellant

C A O'Connor for Respondent

Judgment:      30 July 2008

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a refusal by the District Court to grant bail to a young man aged 17 years of age.  Section 15 of the Bail Act 2000 applies but was not mentioned by the District Court Judge refusing bail.  Section 15 says:

15    Granting of bail to defendant under 20 years of age

(1)    If a court remands or commits for trial or for sentence a defendant who appears to the court to be of or over the age of 17 years but under the age of

20 years, it must release the defendant on bail or otherwise subject to such

conditions as it thinks fit.

TIOPIRA V POLICE  HC DUN CRI 2008-412-000031  30 July 2008

(2)    Subsection (1) is subject to—

(a)     sections 7 (except subsection (5)), 9 to 12, and 16 and 17 of this Act; and

(b)      subsections (4A) and (4B) of section 142 of the Criminal

Justice Act 1985,—

but no other enactment.

(3)       Subject to subsections (1) and (2) of section 142 of the Criminal Justice Act 1985 and to the Children, Young Persons, and Their Families Act 1989, this section applies in respect of a defendant who is under the age of 17 years and who is charged with or convicted of any offence in a District Court or the High Court.

It should be noted at the outset that the opening words are:

If a court remands or commits for trial or for sentence … (Emphasis added)

[2]      Accordingly, there is no doubt that it is Parliament’s intention that s 15 applies after conviction and prior to sentence, even if there are very good reasons for believing that the defendant will in due course be sentenced to imprisonment.

[3]      There have been a number of decisions, including two that I have written: Manihera-Mako v Police HC CHCH CRI 2005-409-000081 4 May 2005 and Cavanagh v Police High Court INV CRI 2007-425-000028 4 September 2007 which point out that s 15 is the starting point in consideration of a grant of bail where a defendant is under 20 years of age.

[4]      Section 15 contains within it the selection of other sections of the Bail Act and of the Criminal Justice Act 1985 which bear upon the exercise of discretion entrusted to the Court.  It is noteworthy that subs (1) is not subject to s 13, nor to s 8.

[5]      It is common ground in this case that if bail were possibly to be refused it would have  to  be  via  s  4(A) and    4(B)  of  s  142  of  the  Criminal  Justice  Act. Sometimes under s 4(A) a Court may find itself giving consideration to the risk of the defendant failing to appear in Court for sentence, a s 8 consideration, and in that sense a s 8 like consideration might possibly apply.  For example, there may be some doubt as to the failure of the defendant to appear for sentence because of his past

conduct  while  on  bail,  including  breaching  of  bail  conditions,  a  s  8(2)(e)

consideration.  But see paragraph [16] of Manihera-Mako:

[16]      It is important not to let the tail wag the dog.  Section 142(4A) of the Criminal Justice Act enables the Judge to determine the merit of the application according to the criteria stipulated in s 8.   However, it is also essential that the Judge does so against the principal policy contained in the amalgam of s 15(1) of the Bail Act and s 142 (4A) of the Criminal Justice Act.

[6]      In this case, however, the notice of general appeal signed by counsel for the appellant, Mr Westgate, says, as the 4th ground of appeal:

4.       The appellant had been on bail up until guilty pleas were entered

(with no difficulties).

[7]       This appeal has been heard the following day.  Mr Westgate is in Dunedin but I have no reason to doubt his advice to the Court that I have quoted.  Nor is Mr O’Connor in a position to contest it, although he has been  handicapped by the short period of time to prepare for this hearing.

[8]      Proceeding on the basis that there have been no difficulties with bail to date, and, as is set out in the 3rd  ground of appeal, that the appellant has an appropriate address to be bailed to pending sentence, and noting that there is no suggestion in the brief reasons of the District Court to suggest otherwise, then I am satisfied that this appeal should be allowed for the reason that the Judge did not start the analysis with s 13, but appears inferentially to have applied s 13.   Section 15 applies.

[9]      For these reasons I am prepared to grant bail.  He is granted bail to the same address  and  on  the  same  conditions  as  in  the  bail  he  was  under  prior  to  the convictions being entered.

[10]     Leave is reserved for a further application to this Court for the question of bail to be reviewed, if it appears that this Court has not been fully appraised of the circumstances.   Of course this is not to stop any application to the District Court following any breach of bail conditions.

Solicitors:

Petrie Mayman Clark, Timaru, for Applicant

Gresson Dorman, Timaru, for Respondent