U v Police HC Auckland CRI 2007-404-131

[2007] NZHC 494

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-131

U

Appellant

v

THE POLICE

Respondent

Hearing:         15 May 2007

Appearances: Mr Hemi for appellant

Mr Lawry for respondent

Judgment:      15 May 2007

ORAL JUDGMENT OF WINKELMANN J

Crown Solicitor, Auckland

Public Defence Service, Auckland

U V POLICE HC AK CRI 2007-404-131  15 May 2007

[1]      Mr U   appeals against the refusal of Judge Aitken on 27 April 2007 to delete a curfew condition attaching to his bail.  Mr U   currently faces three active charges, two of unlawful interference with a motor vehicle and one of theft ex vehicle.  He is

18 years old and was, at the time of the alleged offending, 17 years of age.

[2]      When Mr U   appeared before Judge Aitken on 27 April 2007, she remanded him on bail on the three charges.  She noted that counsel for Mr Hemi had asked her to vary the bail conditions by deleting the curfew condition.  She said:

At  this  stage I am not  persuaded that  is appropriate.    On  reaching  that decision I have had regard to your age, to the fact these offences were all allegedly committed at around 2.30 in the morning and that you have breached bail on one occasion, back in February of this year.

[3]      The principal ground upon which the appeal is advanced is that the Judge failed to take into account a relevant consideration when considering the application for deletion of the curfew condition.  In particular, Mr Hemi submits that she failed to take into account the likelihood of further offending by Mr U   if the curfew condition was deleted, since this necessarily entailed a consideration of Mr U  ’s propensity to offend.

[4]      Mr Hemi submits that if the matter is looked at afresh it is material that Mr U   is now 18 years of age.  He has provided affidavit evidence that he has an eight month old daughter.   He has previously been living in Manurewa with his family,  his  partner  and  daughter,  but  police  curfew  checks  had  caused  such disruption  that  his  partner  and  daughter  had  moved  out  to  her  family  home. Although he remained in Manurewa for several weeks, things were so difficult for his partner without him that he then moved in with her parents to help with the baby. The curfew continues to cause disruption to their lives and distress.

[5]      The information before me as to Mr U  ’s criminal and bail history is that he was convicted in April 2005 on one count of aggravated robbery and in June 2006 on one count of possession of an offensive weapon.   His bail history shows that the offence of aggravated robbery was committed whilst he was on bail on a number of other alleged offences, which it seems from the criminal history must have been

with a motor vehicle, failure to answer District Court bail, receiving property and unlawful taking of a motor vehicle.

[6]      It is also relevant that there have been two breaches of the existing curfew condition.  Mr U   has said in evidence that one breach at least occurred because he and his partner had not realised that their daughter’s milk formula was low.  When their daughter became unsettled during the night they discovered they were out of formula so went to the supermarket to purchase some milk formula and the police check occurred during his absence.

[7]      As to the second breach he said that he does not know what he was doing, but it did not involve any further offending and “I don’t recall being arrested absent from my address”.

[8]      Mr Lawry opposes the removal of the curfew condition.  He submits that it should remain given the risk of further offending whilst on bail.   He submits that Mr U  ’s criminal and bail history and history of breach of curfew conditions is adequate justification for the continuation of that curfew.

[9]      Having considered the reasons given by Judge Aitken I am satisfied that she did direct herself to the appropriate consideration.   She considered that the curfew was imposed for a purpose, avoiding offending in the early hours of the morning, noting that the offence with which Mr U   had been charged was committed in the early hours of the morning.  She therefore satisfied herself that there was just cause for this curtailment of Mr U  ’s freedom of movement.  There is therefore no appeal error committed by Judge Aitken.

[10]     Having looked at the material afresh, I am in any case satisfied that the continuation of the curfew condition was appropriate.   There is adequate evidence that the offences with which Mr U   is charged were committed in the early hours of the morning.   Further, there is evidence that he has previously offended whilst on bail.  In these circumstances I would not, if considering the matter afresh, have been prepared to delete the curfew condition.

Winkelmann J