W v Police HC Hamilton CRI 2006-019-7089

[2008] NZHC 2179

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-019-7089

W

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 February 2008

Appearances: C Comeskey for Applicant

M Sturm and J O'Sullivan for Crown

Judgment:      25 February 2008

ORAL JUDGMENT OF WOODHOUSE J (bail application of Mr W   folloiwng conviction)

Solicitors / Counsel:

Mr C Comeskey, Barrister, Auckland

Mr M Sturm, Almao Douch, Office of the Crown Solicitor, Hamilton

W V NZ POLICE HC HAM CRI 2006-019-7089  25 February 2008

[1]      Mr W  , I have come to the conclusion that I am not, according to the law, able to grant you bail. The Bail Act, as indicated by Mr Comeskey, says that when somebody pleads guilty or is convicted, bail cannot be granted – and that is what Parliament says – unless it is in the interests of justice to grant bail.  And the onus in this case is on you to satisfy me that there are special circumstances which make it in the interests of justice to grant bail.

[2]      There are three matters that have been put to me.  The first relates to your present employment.   The difficulty that would arise there is not one which faces you.  There is no material evidence that this is an exceptional circumstance for Mr and Mrs Pinny, your present employer, if you are unable to resume your duties, which are, of course, milking their herd.  And, as Mr Sturm has pointed out, they will have made arrangements over the preceding week or so, while you have been at this trial, to deal with the milking in any event.

[3]      The second circumstance put forward by Mr Comeskey relates to your family circumstances,  your wife  and  children.    And  as  I indicated  to  Mr  Comeskey I understand the human aspect of that, but it is not something, having regard to all of the cases that come before the Court, which takes your case out of the ordinary and satisfies me, with the onus on you, that justice requires that bail be granted.

[4]      The third, and I think most important consideration, is whether there is a likelihood that you will be sentenced to a term of imprisonment.  The comments that I am about to make are not definitive in the sense  that  they indicate  what  the sentence will be, because that can only be determined once all the relevant information is put before the Court.  But I must say that the likelihood of a term of imprisonment is higher and beyond the balance of probabilities than the likelihood of a sentence of home detention.   Mr Comeskey, of course, acknowledged that it is likely that there will be some form of custodial sentence.  I do not want to go on with this, but I do need to explain it to you.

[5]      The reasons that I consider it more likely that there will be a term of imprisonment is that the LSD charge, standing alone, is, at the very least, at the

margin of two years or more, and it would have to be two years or less for there to be home detention.  The possibility that it may be above two is increased by your prior conviction for drug dealing, although it is quite a long time ago, and the weight that ultimately gets attached to the prior conviction needs to be determined in the light of all the other circumstances.

[6]      But the critical determining factor is that you have also pleaded guilty to money laundering and, on the information available to me, in respect of a substantial sum of money.  That – as best as can be judged at this stage – puts the likelihood of imprisonment above two years as reasonably high.

[7]      In the circumstances I decline the application for bail.

[8]      The  remaining  matter  is  the  date  of  remand  for  sentence.    For  present purposes I remand you for sentence on 7 April 2008 at 10:00 a.m.   The Court of sentence might be Auckland rather than Hamilton, and that needs to be reviewed – and I understand the situation for Mrs W   if the sentence is not in Hamilton.  But presently, the remand is to 7 April 2008 at 10:00 a.m. in this Court.  The date and the Court are subject to review, to be dealt with by telephone conference, with Mr Comeskey  acknowledging  that  for  that  purpose  –  that  is  to  say,  the  telephone

conference – Mr W  ’ presence is not required.

Peter Woodhouse J