Wenzel v The Queen - [2013] NZCA 41

IN THE COURT OF APPEAL OF NEW ZEALAND

CA20/2013
[2013] NZCA 41

BETWEEN SHANE CHARLES WENZEL
Applicant

AND THE QUEEN
Respondent

Counsel: M Meyrick for Applicant
R A Hearn for Respondent

Judgment: 6 March 2013 at 10 am

On the papers

JUDGMENT OF HARRISON J

The application for bail is declined.

____________________________________________________________________

REASONS

The applicant, Shane Wenzel, has appealed to this Court against his conviction in the District Court at Manukau following trial before Judge Winter[1] on eight counts of using a document with dishonest intent, intending to obtain a pecuniary advantage for himself or others and without claim of right.[2] He also appeals against his sentence of three years imprisonment.[3]
[1] R v Wenzel DC Manukau CRI-2006-092-14379, 15 October 2012.
[2] Crimes Act 1961, s 228(b).
[3]R v Wenzel DC Manukau CRI-2006-092-14379, 14 December 2012.
Mr Wenzel has applied for a grant of bail pending determination of his appeal.[4] I have personally considered his application.[5] In order to succeed, Mr Wenzel must discharge on the balance of probabilities the onus of showing that it would be in the interests of justice in this particular case to grant him bail pending determination of his appeal.[6] In effect, there is a statutory presumption against granting bail pending an appeal.
[4]      Bail Act 2000, s 70.
[5]      Crimes Act, s 393(2)(d).
[6]      Bail Act, s 14.
Mr Wenzel has not sworn an affidavit in support of his application. His counsel, Mr Meyrick, advises that Mr Wenzel has experienced “practical difficulties” in doing so. He has filed a draft affidavit in a form which Mr Meyrick advises will be identical to the sworn document. In these circumstances, I am treating the draft as if it were sworn for these purposes.
The Crown opposes Mr Wenzel’s application. Mr Hearn has provided copies of Judge Winter’s comprehensive conviction decision dated 15 October 2012 and his sentencing notes dated 14 December 2012.
Mr Wenzel’s application for bail is based primarily if not entirely on two factors. First, he says that he is now eligible for parole. That is because he has already served 11 months of a sentence of imprisonment imposed following his earlier conviction for these offences which were later set aside on appeal to this Court.[7] In particular he says that he was eligible for consideration for parole in February 2013 but the Parole Board through its own inefficiencies failed to arrange a hearing; that a new hearing date has been set for April 2013 and in the interim he has applied to review the Board’s decision; and that he believes he has a very good chance of being given a release date if he appears in April. In his view, he may already have been released if the prison, probation and parole board staffs had performed their duties efficiently.
[7] Wenzel v R [2010] NZCA 501.
I accept that in some circumstances eligibility for parole may be a relevant factor when considering an application for bail.[8] But this application does not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wenzel v The Queen

Details

AGLC: Wenzel v The Queen [2013] NZCA 41
Case: [2013] NZCA 41
Decision Date: 6 March 2013

CaseChat Overview and Summary

In the appeal case of Wenzel v The Queen, Shane Charles Wenzel, the appellant, sought bail pending the determination of his appeal against his conviction and sentence. Wenzel was convicted in the District Court at Manukau on eight counts of using a document with dishonest intent, intending to obtain a pecuniary advantage for himself or others and without claim of right. He was also sentenced to three years imprisonment. The legal issues before the court were whether Wenzel's eligibility for parole and his medical condition were sufficient grounds for granting bail pending determination of his appeal. The court found that Wenzel's eligibility for parole was not a relevant factor in the bail application as it was a collateral challenge to the Parole Board's functions and alleged failures. The court also found that Wenzel's medical condition, specifically his need for EECP treatment, was not a factor to be taken into account when considering an application for bail. The court concluded that Wenzel had not discharged the onus of proving that the interests of justice were such that bail should be granted. The application for bail was declined.

Wenzel's application for bail was primarily based on two factors: his eligibility for parole and his medical condition. However, the court found that these factors were not sufficient grounds for granting bail pending determination of his appeal. The court noted that Wenzel's eligibility for parole was not a relevant factor in the bail application as it was a collateral challenge to the Parole Board's functions and alleged failures. Furthermore, the court found that Wenzel's medical condition, specifically his need for EECP treatment, was not a factor to be taken into account when considering an application for bail. The court concluded that Wenzel had not discharged the onus of proving that the interests of justice were such that bail should be granted. The application for bail was declined.

In Wenzel v The Queen, the Court of Appeal of New Zealand considered Wenzel's application for bail pending determination of his appeal against his conviction and sentence. The court found that Wenzel's eligibility for parole and his medical condition were not sufficient grounds for granting bail pending determination of his appeal. The court concluded that Wenzel had not discharged the onus of proving that the interests of justice were such that bail should be granted. The application for bail was declined. The court further noted that Wenzel's affidavit made only passing reference to the circumstances of his appeal against conviction and that there was no evidence that he had been denied access to proper treatment for diabetes while in prison. The court emphasized that the application for bail was not the appropriate mechanism for reviewing the Parole Board's performance. The final orders of the court were that Wenzel's application for bail was declined.

Orders