Whitehead v The Queen - [2014] NZCA 428

IN THE COURT OF APPEAL OF NEW ZEALAND

CA300/2014
[2014] NZCA 428

BETWEEN	WENDY MAREE WHITEHEAD Appellant
AND	THE QUEEN Respondent

Telephone

Conference:

27 August 2014

Counsel:

E J Forster for Appellant
M D Downs for Respondent

Judgment:

2 September 2014 at 10.30 am

JUDGMENT OF WHITE J

AThe application for bail pending appeal is granted.
BThe sentence of home detention is suspended.
CBail is granted on the condition that the appellant is to reside at 1370 Motueka Valley Highway, Ngatimoti, Nelson.

____________________________________________________________________

REASONS

Introduction

The appellant, Mrs Whitehead, was convicted following a jury trial in the Nelson District Court on one charge of using a document with intent to defraud and seven charges of dishonestly using a document. The offending related to her defrauding the Accident Compensation Corporation (ACC) over a seven-year period in the sum of $213,397.87. She was sentenced by Judge Zohrab on 12 May 2014 to 10 months’ home detention and 160 hours of community work.[1] She was also ordered to pay reparation of the full amount of the sum defrauded.
[1]R v Whitehead DC Nelson CRI-2011-042-4120, 12 May 2014.
Mrs Whitehead has appealed against her conviction and sentence. Her appeal has been set down for hearing on 15 October 2014.
Pending determination of her appeal, Mrs Whitehead has applied for bail under s 55 of the Bail Act 2000 and for suspension of the sentence of home detention under s 403A of the Criminal Procedure Act 2011. Her sentence of community work has been automatically suspended by her appeal.[2] She has paid the reparation.
[2]Criminal Procedure Act 2011, s 345(1).
The application for bail and suspension of the home detention sentence is opposed by the Crown.
Exercising the power given to a single Judge of this Court, I have personally considered the application.[3]
[3]Section 333(2)(d). The reference to bail must necessarily include suspension of home detention.
An application under s 55 is governed by s 14 of the Bail Act.[4] Section 14 generally creates a presumption against a grant of bail pending appeal.[5] The onus is on the applicant to demonstrate on the balance of probabilities that it is in the interests of justice that bail be granted.[6] When considering the interests of justice the Court may take into account the considerations set out in s 14(3):
(a)the apparent strength of the grounds of appeal;
(b)the length of the sentence that has been imposed on the appellant;
(c)the likely length of time that will pass before the appeal is heard;
(d)the personal circumstances of the appellant and the appellant’s immediate family;
(e)any other consideration that the court considers relevant.
[4]Din v R [2013] NZCA 610, [2014] 2 NZLR 445 at [15]–[17].
[5]Harris v R [2013] NZCA 611 at [12].
[6]Bail Act 2000, s 14(2).
The well-known authorities of this Court confirm that admission to bail pending appeal is unusual and only to be granted in exceptional circumstances.[7]

Factual background

[7]Ellis v R [1998] 3 NZLR 555 (CA) at 560; and

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 Whitehead v The Queen

Details

AGLC: Whitehead v The Queen [2014] NZCA 428
Case: [2014] NZCA 428
Decision Date: 2 September 2014 at 10.30 am

CaseChat Overview and Summary

In the case of Whitehead v The Queen, Wendy Maree Whitehead, the appellant, has appealed against her conviction and sentence for defrauding the Accident Compensation Corporation (ACC) over a seven-year period amounting to $213,397.87. The case was heard in the Court of Appeal of New Zealand. The appellant was convicted on one charge of using a document with intent to defraud and seven charges of dishonestly using a document. She was sentenced to 10 months' home detention and 160 hours of community work, in addition to paying reparation for the full amount of the sum defrauded.

The legal issues in this case involved the grant of bail pending appeal under s 55 of the Bail Act 2000 and the suspension of the sentence of home detention under s 403A of the Criminal Procedure Act 2011. The appellant's application for bail and suspension of the home detention sentence was opposed by the Crown. The Court considered the application under s 14 of the Bail Act, which generally creates a presumption against a grant of bail pending appeal, with the onus on the applicant to demonstrate on the balance of probabilities that it is in the interests of justice that bail be granted. The Court also took into account the considerations set out in s 14(3) of the Bail Act, including the apparent strength of the grounds of appeal, the length of the sentence, the likely length of time before the appeal is heard, and the personal circumstances of the appellant and her immediate family.

The Court of Appeal granted the application for bail and for an order suspending the sentence of home detention, taking into account the nature and potentially wider significance of the question of law raised by the grounds of appeal, the payment of reparation in full, the real risk that with a relatively short sentence of home detention the appellant's appeal may be rendered largely nugatory if bail is not granted and the sentence not suspended, and the appellant's previous history of compliance with her bail conditions. The Court also granted bail on the condition that the appellant is to reside at 1370 Motueka Valley Highway, Ngatimoti, Nelson.

Orders