Wenzel v The Queen
[2013] NZCA 41
•6 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA20/2013 [2013] NZCA 41 |
| BETWEEN SHANE CHARLES WENZEL |
| AND THE QUEEN |
| Counsel: M Meyrick for Applicant |
| Judgment: 6 March 2013 at 10 am On the papers |
JUDGMENT OF HARRISON J
The application for bail is declined.
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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 fall into that category. It is essentially a collateral challenge to the Parole Board’s functions and alleged failures. Mr Wenzel has already set in train the statutory avenues available to him for that specific purpose. An application for bail is not the appropriate mechanism for reviewing the Parole Board’s performance.
[8] Ellis v R [1998] 3 NZLR 555 (CA) at 561.
Second, Mr Wenzel says that he has for the past few years suffered from several medical afflictions. Among them is diabetes. He says that a beneficial treatment, known as EECP treatment, is available from a private clinic. On past experience he is satisfied that access to EECP treatment, which is unavailable in prison, would be particularly beneficial.
The fact that Mr Wenzel regards a form of treatment which is only available outside the prison environment as beneficial to him is not a factor to be taken into account when considering an application for bail. There is no evidence that he has been denied access to proper treatment for diabetes while in prison.
Mr Wenzel’s application for bail falls well short of discharging his onus of proving that the interests of justice are such that bail should be granted. His affidavit makes only passing reference to the circumstances of his appeal against conviction. He says briefly that the grounds of appeal will include arguments about a defence of claim of right which he says equates with an absence of guilty knowledge.
On the material available I am unable to form an opinion on the merits of Mr Wenzel’s appeal. In the absence of an assessment of the Judge’s legal analysis and conclusions, which would be inappropriate here, I need only observe that Mr Wenzel will have to confront the combined effect of adverse findings of fact made against him.
In reality, Mr Wenzel’s application amounts to a submission that he should be released now on bail because he will soon be set a release date by the Parole Board. That is not a sufficient basis for granting him bail pending determination of his appeal.
The application for bail is declined.
Solicitors:
Berman & Burton, Auckland for Applicant
Crown Law Office, Wellington for Respondent
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