Michalick v R [2010] NZCA 615 (14 December 2010)

Last Updated: 5 January 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA812/2010 [2010] NZCA 615

BETWEEN ZANE MARCUS MICHALICK Appellant

AND THE QUEEN Respondent

Hearing: 13 December 2010 (by phone conference)

Counsel: R Laybourn for Appellant C Brook for Respondent

Judgment: 14 December 2010 at 3.30 pm

BAIL JUDGMENT OF HARRISON J

Application for an order granting bail declined.

[1] Zane Michalick has appealed against a sentence of two years and three months’ imprisonment imposed upon him in the District Court at Hamilton on 23 November 2010 following his pleas of guilty to charges of cultivating and possessing cannabis for supply.
[2] Mr Michalick has applied for an order granting bail pending determination of his appeal in this Court. A fixture is yet to be allocated but one may be available in March 2011. The Crown opposes Mr Michalick’s application.
[3] Section 14 of the Bail Act 2000 is as follows:

14 Exercise of discretion when considering bail pending appeal

(1) If a person is in custody under a conviction and is appealing the conviction or sentence, or both, the court must 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.

(2) The onus is on the appellant to show cause why bail should be granted.

(3) When considering the interests of justice under subsection (1) 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.

[4] In summary, as Ms Brook submits, s 14 creates a presumption against granting bail on an appeal. An appellant carries the burden of demonstrating that bail should be granted in the interests of justice. In practice, the threshold is high, especially where a person has pleaded guilty, and bail pending an appeal is granted only in exceptional circumstances.
[5] Mr Michalick’s notice of appeal against sentence does not challenge the starting point of two and a half years’ imprisonment fixed by Judge Spear. His challenge is narrowly confined to an argument that the Judge failed to make proper allowance for Mr Michalick’s guilty pleas and any allowance for his remorse.[1] Mr Laybourn submits that the reduction for mitigating factors of three months was inadequate. He says that the net result should have been an end sentence of two years or less with the prospect of a successful application for home detention.
[6] Mr Michalick has failed to establish exceptional circumstances which might justify granting bail. It cannot be said that, first, the appeal against the duration of sentence will probably succeed and, second, if so, a sentence of home detention will probably be imposed. At best, given that the appeal is against the result of an evaluative exercise, the prospects of success are problematic. That factor is decisive against granting bail.
[7] Mr Michalick’s application for an order granting bail is declined. However, to minimise the risk of an injustice, I request the Registry to allocate the earliest available fixture for hearing, if possible in March 2011. The hearing time is unlikely to exceed 45 minutes.

Solicitors:
C Brook, Crown Law Office, Wellington for Respondent

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[1] See R v Hessell [2010] NZSC 135.