Van Duyn v Police HC Auckland CRI 2010-404-88

[2010] NZHC 1013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-000088

NICHOLAS VAN DUYN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 April 2010

Appearances: M Read for the Appellant

P Dean for the Respondent

Judgment:      9 April 2010

[ORAL] JUDGMENT OF WYLIE J [Appeal against refusal to grant bail]

Solicitors:

M Read, P O Box 6804, Wellesley Street, Auckland 1141

Crown Solicitor, P O Box 2213, Auckland 1140

N VAN DUYN V NEW ZEALAND POLICE HC AK CRI 2010-404-000088  9 April 2010

[1]      Mr Van Duyn appeals against the District Court’s refusal to grant him bail in respect of an extensive list of charges, including burglary, two charges of receiving, two charges of theft, discharging an airgun in a public place, unlawful possession of ammunition, possession of an offensive weapon, possession of cannabis, possession of utensils, and driving while disqualified.

[2]      Mr Van Duyn has pleaded guilty to all of these various charges, except for the burglary charge.  In respect of the burglary charge, he has elected trial by jury.

The District Court Judge’s decision

[3]      On 17 March 2010 Judge D J McNaughton refused bail.  He was considering a bail application made by Mr Van Duyn in respect of a series of charges laid in the Warkworth District Court, covering the period from 13 to 15 July 2009.  Bail was sought on the basis that pending sentence, Mr Van Duyn had already spent some four and a half months in custody, and had effectively served the likely sentence in respect of all of the charges aside from the alleged burglary.

[4]      The Judge considered that the offences to which Mr Van Duyn had pleaded guilty were generally relatively minor.   He accepted the submission that Mr Van Duyn had spent four and a half months in custody and had effectively served his sentence for all of those charges.  He noted that Mr Van Duyn’s history of previous offending was not significant.

[5]      As  the  Judge  saw  it,  the  sticking  point  was  the  outstanding  charge  of burglary.  He referred to the evidence relied on by the Crown and recorded that in his view it was “very strong”.   He was concerned that if Mr Van Duyn were to be released on bail, there was a risk he would reoffend.  The Judge took the view that that risk could not be ameliorated by any conditions he could impose, including electronically monitored bail.  Accordingly, bail was declined.

The appeal

[6]      A notice of appeal was lodged on 18 March 2010.  It asserts that the Judge erred in law and in fact.   Today I heard submissions from Mr Read on behalf of Mr Van Duyn and Mr Dean on behalf of the Crown.

[7]      Mr Read accepted that the appeal proceeds by way of rehearing and that the onus is on Mr Van Duyn to satisfy me that the District Court Judge was wrong in declining the grant of bail. He submitted the following:

a)        What the Judge said in relation to the burglary offence was confusing.

The Judge indicated a possible sentence on a “time served” basis of eight months if Mr Van Duyn was prepared to plead guilty to the burglary;  he  also  commented  that  if  he  were  to  be  convicted  in relation  to  the  burglary,  it  was  inevitable  he  would  receive  a substantial prison sentence.

b)        The Judge had given undue emphasis to the burglary in his reasoning.

He asserted that this tainted the offending to which Mr Van Duyn had pleaded guilty, and in respect of which he had been convicted.

c)       The evidence in support of the burglary charge was not as strong as was found to be the case by Judge McNaughton.  He argued that too little weight was given to contradictions in an eye witness’s statement.

d)The Judge erred when he suggested that burglary and receiving are the sort of offences that are committed in order to sustain a methamphetamine habit.    He argued that the reference to a methamphetamine habit “negatively contextualised” the admitted offending.  He noted that Mr Van Duyn faces no charges in relation to methamphetamine offending, and has no convictions in that regard.

[8]      Mr Dean accepted that, but for the burglary, the other charges to which

Mr Van Duyn has pleaded guilty are relatively minor.  He noted that Mr Van Duyn

is due to be sentenced on Tuesday 13 April 2010 in relation to those charges and that the sentence is unlikely to exceed the time that Mr Van Duyn has already spent in custody.  He relied on the burglary charge and submitted that the evidence in support of that charge is strong.  He argued that there must be a concern that Mr Van Duyn might offend further were he to be released on bail.  He referred to Mr Van Duyn’s criminal history and noted that he has a number of convictions for offending whilst on bail, or whilst subject to Court orders.  He accepted there was no risk that Mr Van Duyn  would  interfere  with  witnesses  or  evidence.    While  he  did  not  expressly discuss the matter, he did not suggest that Mr Van Duyn might fail to appear in Court if he were to be remanded on bail.

Analysis

[9]      Under s 7(5) of the Bail Act 2000, a defendant who is not bailable as of right must be released on reasonable terms and conditions, unless the Court is satisfied there is just cause for continued detention.

[10]     Here, Mr Van Duyn faces a charge of burglary.  That charge has a maximum penalty of 10 years’ imprisonment under s 231 of the Crimes Act.  Mr Van Duyn is not bailable as of right.

[11]     I accept Mr Read’s submission that in effect, I am required to determine on this appeal whether or not Mr Van Duyn should be bailed in respect of the burglary charge.   He is due to be sentenced on Tuesday 13 April 2010 in relation to those charges to which he has pleaded guilty.   It is common ground that he has already spent almost six months in custody, and in relation to those charges the sentence imposed is unlikely to exceed the period spent in custody.

[12]     In  considering  whether  or  not  there  is  just  cause  for  Mr Van  Duyn’s continued detention, I am required to take into account the matters set out in s 8(1) of the Act.  The primary consideration is whether or not Mr Van Duyn would reoffend, were he to be granted bail.   In determining that question, I have considered the matters detailed in s 8(2) of the Act.

[13]     First, I observe that burglary is a serious offence that has a significant impact both on victims and on the community at large.  Here it is alleged that Mr Van Duyn smashed a rear window to a residential dwelling, entered the dwelling and took a 37- inch television set and a digital camera belonging to the victim.  It is alleged that he activated the burglar alarm and fled the premises, taking the items with him.  There are aggravating factors to the alleged offending, including the forced entry into the dwellinghouse.  It was not, however, occupied at the time.  I do not consider that the alleged  offending  is  particularly  grave  offending  of  its  type,  but  nevertheless burglary is a serious offence.

[14]     I have considered the evidence that the Crown intends to rely on.  It asserts that at the time the burglary was committed, Mr Van Duyn’s actions were heard by a neighbour who went to investigate.  The neighbour says that shortly after the house alarm activated he saw Mr Van Duyn run past him and get into a black Nissan Skyline.  Apparently the witness was able to identify Mr Van Duyn from a photo- board montage as the person he observed leaving the property.  At the time of the burglary, Mr Van Duyn was supposed to be on a 24-hour curfew in Helensville.  His address was checked by the police a few minutes after the burglary.  He was not at home;  nor was his vehicle.  He owned a black Nissan Skyline.  A search warrant was conducted at Mr Van Duyn’s address on the following day.  There were signs of freshly cut beard trimmings around the bathroom.  It is alleged that Mr Van Duyn had a beard when he was identified by the witness.  When he was interviewed on the following day he was freshly shaven.

[15]     There are some difficulties with the evidence the police intend to rely upon. As  I understand  it  the  person  observed  by the  eye  witness  was  not  carrying  a television.   Further, the witness says the person he observed  was  running.   As Mr Read  points  out,  it  would  be  difficult  to  run  carrying  a  37-inch  flat  screen television.

[16]     Nevertheless,  despite  these  difficulties,  in  my  view  the  strength  of  the evidence on which the Crown relies is strong and Judge McNaughton did not err in his conclusions in that regard.  It follows that there must be a reasonable probability of conviction.

[17]     In the event that Mr Van Duyn is convicted, he is likely to face a substantial term of imprisonment.   He has a poor criminal record which suggests that his behaviour has been deteriorating in recent times.

[18]     There are factors which go in the other direction.   There is an outstanding pre-trial matter to be dealt with in relation to the burglary charge.  An oral evidence application is to be heard in the District Court at Waitakere on Wednesday 14 April

2010.  If that application succeeds, the trial could be some six to eight months away, or perhaps a little longer.  If it fails, the trial could still be some six months away, again perhaps a little longer.

[19]     The matter is finely balanced, given the likely length of time before the burglary charge comes to trial and the likely sentence which might be imposed if Mr Van Duyn is found guilty.  Nevertheless, looking at matters in the round, in my view there is a risk that Mr Van Duyn would offend again were he to be granted bail. His previous criminal history in that regard counts against him.  He has breached bail on previous occasions.  He has two convictions for failing to answer District Court bail, and one for escaping from lawful custody.   The alleged burglary occurred whilst Mr Van Duyn was on bail, as did two of the driving whilst disqualified convictions.  Further, as I have noted above, his criminal history suggests that his behaviour is deteriorating.

[20]     In the circumstances, I am satisfied that it is not appropriate to grant bail to

Mr Van Duyn.

[21]     The appeal is dismissed.

Wylie J