Wiari v Police HC Wanganui CRI 2010-083-317

[2010] NZHC 1156

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-083-317

TURAAHUI JACQUE NIKORA WIARI

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 July 2010

Counsel:         D M Goodlet for applicant

J M Marinovich for respondent

Judgment:      7 July 2010

RESERVED JUDGMENT OF DOBSON J

[1]      Mr Wiari faces some 14 charges including supply of methamphetamine and amphetamine,  conspiracy  to  deal  in  methamphetamine,  aggravated  robbery  and selling of cannabis.   The offences are alleged to have occurred in October and November 2009 and he has been in custody since early December 2009.

[2]      An  application  for  electronically monitored  (EM)  bail  was  partly argued before Gendall J on 20 May 2010, but adjourned until today because of that Judge’s concern at the content of a letter supposedly sent by Mr Wiari to a Mongrel Mob associate, the content of which appeared to raise the prospect of interfering with a

woman who is connected with some of the charges Mr Wiari is facing.  The letter,

although undated, appears to have been written some time before a Court appearance on 18 February 2010.  Different parts of the four page letter referred to women in different terms.  The first, described as “the big girl”, appears to be the mother of the recipient of the letter (the references include “...she’s your mumze...”).   A second woman is referred to in the context of comments that could relate to the prospects of Mr Wiari getting bail or, perhaps more likely, to the strength of the Crown’s case against him.   The derogatory references to the second woman include “narking”. The reference is followed by the request:

Can you try sort it out for me dog please you and the other bro cross the road the bitch is on bail in H.town somewea she’s dribbling hard ill leave that up to you’s all good if it carnt be done

[3]      The Crown invites the inference that the woman referred to is a co-accused in one of the serious charges faced by Mr Wiari who appears to have been bailed variously to addresses in Hamilton and/or Hawera.  The Police are concerned that the letter evidences an intention for gang associates of Mr Wiari to threaten that person against any co-operation with the Police that might be occurring.

[4]      Ms Goodlet’s  instructions  were  to  deny  that  that  inference  arises.    She explained that the woman referred to was someone Mr Wiari had had some form of sexual contact with, and that the woman was now telling others about it, to the potential detriment of Mr Wiari’s relationship with a current partner.

[5]      It is not possible to make a definitive finding on the point.   However, the explanation offered on behalf of Mr Wiari appears substantially less likely than the inference the Police seek to draw from the relevant parts of the letter.  I am satisfied it  establishes  a  sufficient  basis  for  a  concern  that  Mr Wiari  would  resort  to interference with potential witnesses, and that such activities would be substantially easier for him if he was on EM bail rather than in custody.

[6]      The Police also raise concerns that Mr Wiari may further offend whilst on bail.  Statistically, 17 of 36 of his proven offences were carried out whilst on bail. Some of those include failing to answer District Court bail and breaches of other sentences.    The  Police  cite,  in  particular,  possession  of  methamphetamine  and utensils for methamphetamine when Mr Wiari was on bail in 2007.

[7]      The Police report also raises concerns that he may fail to appear.  The more serious of the present charges include ones for which the maximum penalty is life imprisonment.  Whilst, as Ms Goodlet submits, an indeterminate life sentence does not seem highly likely, if convicted he is certainly facing a lengthy prison sentence, thereby increasing the pressure to abscond.  The Police cite four earlier convictions between 2004 and 2008 for failing to answer District Court bail.

[8]      As against these concerns, Ms Goodlet supports the EM bail application on the  grounds  that  an  adequate  address  has  been  provided,  Mr  Wiari  performed without objection throughout 133 days on EM bail in 2009, and that the pattern of his offending is “winding down” so that the Police citing of statistical performance does not fairly reflect an improvement in his performance in more recent times.

[9]      Ms Goodlet also emphasised that trial on the present charges will not occur this  year,  so  that  the  remand  in  custody is  likely to  be  for  more  than  a  year. Mr Wiari’s aspirations include assisting with the care and supervision of an 8 year old daughter.  It is questionable how practical that aspiration is when the mother of that child is presently bailed to Wanganui and the child is in school here, whereas the address proposed for the EM bail is in Normanby, Taranaki.  One additional concern the Police have raised about the address is that it is in an area the Police treat as a Black Power stronghold and given Mr Wiari’s status as a patched Mongrel Mob member,  they  have  concerns  that  his  location  in  that  area  could  lead  to  gang violence.

[10]     I am predictably concerned at the length of the remand in custody.  I am also mindful of Mr Wiari’s unexceptional performance the last time he was on EM bail for a substantial period.  However, in terms of the considerations under s 8(1)(a) of the Bail Act 2000, I consider that there is a realistic risk that Mr Wiari will fail to appear in Court.  More importantly, I consider that all the circumstances raised about his gang connections and the terms of his letter that has been put to the Court establish a very real risk that he may interfere with witnesses or evidence.   In addition, his previous offending whilst on bail, the network of contacts available to him  as  a  member  of  the  Mongrel  Mob,  and  the  circumstances  of  the  alleged offending on which he is awaiting trial, cumulatively justify a concern that he may

offend  whilst  on  bail.     Cumulatively,  those  concerns  outweigh  the  factors

Ms Goodlet has been able to marshal in support of a grant of EM bail.

[11]     The other concerns raised by the Police in terms of the relative desirability of the address, and its presence in an apparent stronghold of a rival gang, also add somewhat to the grounds for concern at the circumstances that would pertain if bail was granted.

[12]     Accordingly, the application is dismissed.

Dobson J

Solicitors:

D M Goodlet, Wanganui for Applicant

Crown Solicitor, New Plymouth