Young v The Queen
[2018] NZCA 54
•15 March 2018 at 3.30 pm
| NOTE: PUBLICATION RESTRICTIONS APPLY PURSUANT TO S 19(1) OF THE BAIL ACT 2000. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA720/2017 [2018] NZCA 54 |
| BETWEEN | MATTHEW JOHN YOUNG |
| AND | THE QUEEN |
| Counsel: | Applicant in person |
Judgment: | 15 March 2018 at 3.30 pm |
JUDGMENT OF CLIFFORD J
The application for bail pending the determination of the appeal is declined.
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REASONS
Mr Young pleaded guilty to 13 charges involving fraud. He was subsequently sentenced in the District Court to four years and 11 months’ imprisonment. He applies to this Court for bail pending the determination of his conviction and sentence appeals.
The case has a complicated history. Mr Young pleaded guilty and convictions were entered on 28 April 2017. There was then a disputed facts hearing, to assess the quantum of the loss Mr Young’s offending had caused. Shortly thereafter, and whilst awaiting sentencing, Mr Young sought to vacate his guilty pleas and stay his prosecution. Both applications were dismissed, with the Judge noting that “substantively the proceedings have little if any merit”.[1] The appeals against conviction and sentence were filed in this Court on 18 December 2017. The core contention appears to be that the Judge erred in failing to grant Mr Young leave to withdraw his guilty pleas. The subsidiary issues Mr Young wishes to raise on appeal relate to alleged impropriety in the prosecution (including late disclosure), and difficulties contacting counsel. He also says the Judge erred in failing to adjourn his sentencing, and that the Crown failed to honour an earlier agreement relating to bail pending sentencing and the withdrawal of charges.
The test
[1]R v Young [2017] NZDC 25029 at [45].
The application for bail pending appeal falls to be considered under s 14 of the Bail Act 2000. It provides that this Court may not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. It goes without saying that the onus is on the applicant, and the threshold is high. Section 14(3) sets out a list of relevant criteria to be taken into account:
(3)When considering the interests of justice under subsection (1A) the court may, instead of the considerations in section 8, take into account the following considerations:
(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.
As this Court stated in Ellis v R:[2]
Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.
The submissions
[2]Ellis v R [1998] 3 NZLR 555 (CA) at 560.
Mr Young submits that this high threshold is made out in this case. He primarily focuses on the strength of the appeal. He says that there is clear “prima facie evidence” of prosecutorial misconduct and procedural impropriety. There is a “strong prospect of a miscarriage of justice having occurred”. Mr Young also asserts that he has had difficulty briefing any counsel, and that this will continue if bail is not granted. Finally, he says that he has honoured bail terms previously. In particular, Mr Young points to having previously spent five years on bail without issue.
The Crown opposes bail. It says that there are no extraordinary circumstances such that Mr Young’s appeal against convictions deriving from guilty pleas is likely to succeed. The Crown also points to the length of the sentence and the fact that the appeal would not be rendered meaningless if bail pending appeal was not granted.
Analysis
In considering applications for bail pending appeal, this Court does not engage in a detailed review of the grounds of appeal. The prospect of a successful appeal must be very high before this factor tips the scales in Mr Young’s favour.
Mr Young’s appeal may have some merit. However, it is not possible to say that the prospects of a successful appeal are very strong. This Court’s comments in R v Le Page are particularly relevant — “it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty”.[3] That is even more so where the appellant is represented by counsel and fully informed of the consequences of pleading guilty. Mr Young has simply not discharged the onus of showing that the Judge erred in stating that the initial application to withdraw the guilty pleas had “little if any merit”.
[3]R v Le Page [2005] 2 NZLR 845 (CA) at [16].
Any difficulty briefing counsel is a matter to be raised with the relevant prison officers. Finally, while an appeal date is yet to be fixed, the length of the sentence means that there is no prospect that Mr Young will have served his sentence before the appeal is heard.
Result
The application for bail pending the determination of the appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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