Case v R [2010] NZCA 453 (6 October 2010)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

Case v R [2010] NZCA 453 (6 October 2010)

Last Updated: 13 October 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA592/2010 [2010] NZCA 453

BETWEEN ADAM JAMES CASE
Applicant

AND THE QUEEN
Respondent

Counsel: D J Taffs for Applicant
M J Inwood for Crown

Judgment: 6 October 2010 at 11 am

(on the papers)

JUDGMENT OF HAMMOND J

The applicant is granted bail, on the following conditions pursuant to s 70(2) of the Bail Act 2000:

1. The applicant is to reside at 19 Coates Street, Westport.

2. He is to abstain from the use of alcohol and illegal drugs pending the hearing of the appeal.

REASONS

[1] Mr Case has appealed against a sentence of 12 months home detention imposed on him on 18 May 2010,[1] following the entry of guilty pleas to one charge of cultivating cannabis and one charge of possession of cannabis for supply. The appeal is currently set down for hearing on 17 February 2011.
[2] Mr Taffs has filed a memorandum seeking the suspension of that sentence pending determination of the appeal, on the grounds that unless this occurs, if the appeal is successful the sentence would have been served and the appeal will have been rendered nugatory.
[3] The file has been referred to me for case management or other action. I agree with the submissions made by Ms Inwood that the proper application is one for bail rather than suspension of sentence, and I propose to deal with it on that footing.
[4] The application would be pursuant to s 70 of the Bail Act 2000. I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961. I have been assisted by submissions in writing from the Crown.
[5] The test to be applied in relation to an application of this kind is that set out in s 14 of the Bail Act. Under s 14(1) bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. Section 14(2) provides that the onus is on the applicant to show cause why bail should be granted.
[6] I should add some brief observations on the intermediate effect of an appeal against the sentence of home detention, and why bail is the more appropriate avenue. Amendments made to s 399(3) of the Crimes Act 1961 and s 124(3) of the Summary Proceedings Act 1957 when home detention became a stand-alone sentence provide that this sentence is automatically suspended when an appeal is filed. Conversely, s 80ZB(b) of the Sentencing Act 2002 provides that time ceases to run on the sentence only during any period in which an offender is released on bail pending an appeal.
[7] This issue has been the subject of a number of recent Court of Appeal decisions. See for instance R v Lima and the cases therein cited.[2] In that case Ellen France J emphasised that it is desirable and appropriate for offenders who seek suspension of home detention sentences pending appeal to seek bail.
[8] The ground of appeal on this case is that Judge Moran sentenced Mr Case to home detention on the understanding that he would be able to continue with his employment while subject to the sentence. The difficulty here is that the sentencing notes contain no reference to Mr Case continuing his employment while subject to home detention. Indeed, the pre-sentence report expressly recognised that Mr Case would have to forego his employment in order to maintain compliance with that sentence. The prospects of success on the appeal are therefore distinctly problematic.
[9] However, the Crown has fairly and properly acknowledged that given the length of the sentence involved and the length of time that will pass before the appeal is heard, there is a prospect that Mr Case’s right of appeal will be rendered nugatory. In those circumstances, the Crown does not oppose the granting of bail pending determination of the appeal.
[10] I agree that is the appropriate course and accordingly the applicant is granted bail, on the following conditions pursuant to s 70(2) of the Bail Act 2000:

1. The applicant is to reside at 19 Coates Street, Westport.

2. He is to abstain from the use of alcohol and illegal drugs pending the hearing of the appeal.

Solicitors:
Crown Law Office, Wellington

---

[1] R v Case DC Greymouth CRI-2009-018-1096, 18 May 2010.
[2] R v Lima [2008] NZCA 513.