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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-70

A
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing:	20 July 2010

Counsel:	K I Jefferies for appellant
J M Webber for respondent

Judgment:	21 July 2010

REASONS FOR JUDGMENT OF DOBSON J

Introduction

[1]       This is an appeal against the refusal of bail by Judge Butler in the District Court at Porirua on 5 July 2010.  At the conclusion of helpful submissions from both counsel, I indicated that the appeal was dismissed.  I now give my reasons for doing
so.

A V NEW ZEALAND POLICE HC WN CRI-2010-485-70  21 July 2010

[2]       Mr A   is charged with conversion of a motor vehicle.   Judge Butler considered that s 12 of the Bail Act 2002 (the Act) applied to this case.  His Honour noted at [2] that Mr A   has:

30 convictions in the past for offences committed while on bail, three certifications as to breach of bail conditions and two convictions for breach of bail.   You were also subject to a sentence at the time of this alleged offending, that is to say release conditions.

[3]       In  fact,  Mr  A    has  some  58  convictions  in  the  past  for  offences committed while on bail, some 19 certifications as to breach of bail conditions and five convictions for breach of bail.   That reflects persistent offending for a man of 20.

[4]       Judge Butler considered that he was influenced by the number of previous convictions committed while on bail and that is the reason why bail was declined.  It is accepted that s 12 of the Act applies to him because:

a)        he is over 17 years of age;

b)        he is charged with an offence that carries a maximum of more than three years imprisonment (seven years);

c)       he has previously been sentenced to 14 or more sentences of imprisonment (24 such sentences);

d)        he has previously been convicted of an offence carrying a maximum sentence of three or more years’ imprisonment whilst on bail or at large.

[5]       The consequence of coming within s 12 of the Act is that Mr A   had an onus to satisfy the Judge on the balance of probabilities that he would not, whilst on bail, commit any offence involving violence against, or danger to the safety of, any other person, or burglary, or any other serious property offence.  The essence of the position for the respondent is that, in light of his prodigious record, Mr A   can simply not discharge that onus.

[6]       This is an appeal from the exercise of a discretion, and unless the appellant can point to changed circumstances, he must demonstrate that the Judge erred in principle, “or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong”.

[7]     Mr A   asserts that the Judge failed to take into account relevant considerations.  On his behalf, Mr Jefferies has emphasised:

a)       the relatively innocuous nature of the offending, characterised as borderline,  and  appearing  to  be  more  of  a  civil  case  involving breaches in respect of the sale of goods;

b)        even if convicted, the relatively low level of the offending suggests that a sentence other than imprisonment is likely, and if imprisonment was required then it would be of sufficiently short duration for home detention to be considered;

c)	his relative youth;

d)        there are no grounds for concern that he will not appear back in Court if granted bail on appropriate conditions.

[8]       The  appeal  is  supported  by an  affidavit  from  Mr A  ’s  mother  who confirms that she is happy to have him living with her and to supervise him to ensure there are no breaches of bail conditions.  She refers to Mr A   having a mental illness that has caused difficulty since his childhood, with assessment of that illness frustrated by his periods in custody.   She also expresses views about the alleged conversion   of   the   motor   vehicle,   lending   some   support   to   Mr Jefferies’ characterisation of it as being near to a civil dispute.

[9]       On the point in [7]d), Mr Jefferies urged that bail could be granted on terms

requiring  Mr Wilton  to  obtain  mental  health  assessments  that  would  lead  to prescription of medication that would control his behaviour, so as to reduce the risk of further offending on bail.   Overall, he urged that a remand in custody for the “borderline” conduct alleged against Mr A   was unjust, and that in the tension between this consideration and the onus on him under s 12, priority should be given to the former.

[10]   Regrettably, past performance is generally the best indicator of future performance, in the absence of credible evidence that substantial change is about to occur.     Without  focusing  unduly  on  the  statistics  of  Mr A  ’s  record,  a consideration  of  the  frequency with  which  he  has  breached  bail  conditions  and offended whilst on bail is relatively compellingly against the Court being persuaded that he can discharge the onus on him under s 12(5) of the Act.

[11]     Although the District Court Judge’s reasoning is short, it is clear that he focused on this concern and that it was sufficient to be determinative.

[12]     I am satisfied that the Judge did not err in principle.  I am also satisfied that the matters Mr Jefferies has urged in support of the appeal cannot discharge the onus on the relevant consideration of prospects of further offending whilst on bail.  There is a realistic prospect of injustice if Mr A   is either acquitted or convicted and sentenced less severely than is reflected by the period he will have spent in custody. The practical way of reducing that risk is to urge that all possible priority be given to a hearing date for the charge against him, which has a status hearing shortly.   I strongly recommend that course.

[13]     It is for these reasons, on this basis, that the appeal was dismissed.

Solicitors:
Jefferies Raizis, Wellington for appellant
Crown Solicitor, Wellington for respondent

Dobson J