Unesi v The Queen

[2011] NZCA 120

IN THE COURT OF APPEAL OF NEW ZEALAND

CA167/2011
[2011] NZCA 120

BETWEEN  VAHID UNESI
Applicant

AND  THE QUEEN
Respondent

Counsel:         D J Ryken for Applicant
S B Edwards for Respondent

Judgment:      31 March 2011 at 10 am

(on the papers)

JUDGMENT OF ELLEN FRANCE J

The application for bail is granted on the following conditions, namely, that the applicant:

(a)       Reside at Unit 8E, Point Ridge Avenue, Albany, North Shore, Auckland;

(b)      Surrender any passport(s) held (if not done so already);

(c)       Not apply for travel documents; and

(d)Report to the North Shore Police Station (Takapuna) between the hours of 9 am and 5 pm on Mondays.

REASONS

1. The applicant was convicted on 16 December 2010 after trial by Judge alone on one count of providing false information to an immigration officer under s 142(1)(c) of the Immigration Act 1987 and sentenced to five months home detention on 2 March 2011.  He has filed an appeal against conviction.

2. On the face of it, amendments made to s 399(3) of the Crimes Act 1961 and s 124(3) of the Summary Proceedings Act 1957, when home detention became a stand alone sentence, provide that the sentence is automatically suspended when an appeal is filed.  Conversely, s 80ZB(b) of the Sentencing Act 2002 provides that, in these circumstances, time ceases to run on the sentence only during any period in which an offender is released on bail pending an appeal.

3. This issue has been the subject of a number of recent decisions of this Court.[1]  In each case the Court has emphasised that it considers it desirable and appropriate for offenders who seek suspension of home detention sentences pending appeal to seek bail.

   [1]R v Edwards [2008] NZCA 109, R v Bisschop [2008] NZCA 229, R v Ward [2008] NZCA 328, R v Lima [2008] NZCA 513 and Sua v R [2010] NZCA 589.

4. In light of the Court’s view on this issue, the parties to the present appeal consent to the granting of bail pending determination of the appeal.  In the circumstances, I agree that this course is appropriate.

5. The following bail conditions are agreed to:

   (a)That the applicant reside at Unit 8E, Point Ridge Avenue, Albany, North Shore, Auckland;

   (b)That the applicant surrender any passport(s) held (if he has not done so already); and

   (c)That the applicant not apply for any travel documents;

6. I am satisfied that these conditions are appropriate.  Neither the applicant nor the Crown made reference to a reporting requirement.  But in my view, a reporting condition is appropriate and necessary.

7. Bail is granted on the agreed conditions together with a requirement that the applicant report to the North Shore Policing Centre between the hours of 9 am and 5 pm on Mondays.

8. The appeal should be set down for hearing as soon as possible.

Solicitors:
Ryken and Associates, Auckland for Applicant
Crown Law Office, Wellington for Respondent