Horsfall v R [2011] NZCA 680 (21 December 2011)

Last Updated: 18 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA667/2011 [2011] NZCA 680

BETWEEN MCKUNDA HORSFALL Applicant

AND THE CROWN Respondent

Hearing: 20 December 2011

Counsel: B J Hart for Applicant J E Mildenhall for Respondent

Judgment: 21 December 2011 at 2 pm

JUDGMENT OF THE COURT

The application for bail is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] McKunda Horsfall pleaded guilty on the first day of trial to one charge of manufacturing methamphetamine and one charge of supplying methamphetamine. He was sentenced by Judge Perkins to two years and six months imprisonment.[1] He appeals against sentence.
[2] Mr Horsfall applies for bail pending determination of his appeal under s 70 of the Bail Act 2000. I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.

Relevant principles

[3] The test to be applied in relation to the application 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 just cause why bail should be granted.
[4] Section 14(3) sets out a number of a considerations which may be taken into account when determining what is in the interests of justice. In this case Mr Horsfall relies on three matters. The first is the strength of the appeal.[2] The second matter relied on is the combination of the length of the sentence and the time to the hearing of the appeal.[3] Finally, in terms of Mr Horsfall’s personal circumstances, there is a job that remains open to him.[4]

Discussion

[5] I deal first with the submission that the grounds of appeal are strong. The notice of appeal raises two matters, that is, the lack of credit for rehabilitation and for remorse. In the memorandum supporting the bail application, a further challenge to various factual findings is foreshadowed. For example, there will be a challenge on appeal to the rejection of the claim that Mr Horsfall only acted under fear of threats from one of the co-offenders. The bail memorandum also indicates a challenge to the sentence on the basis of parity with that of the co-offenders. Finally, an issue is raised about the discount for the guilty plea.
[6] It is difficult at this stage to assess the strength of the proposed appeal. However, as the Crown in opposing bail notes, Mr Horsfall’s counsel at sentencing submitted that an appropriate starting point would be two and a half to three years imprisonment. The Judge adopted a starting point of three years imprisonment. Accordingly, the primary focus is likely to be on the level of discount given for mitigating factors. As to those factors, the Judge did not ignore what was said about remorse and rehabilitation but rather made an assessment of the extent to which those factors were present.
[7] As to the other matters to be raised on appeal, the Judge conducted a disputed facts hearing prior to sentence which included hearing evidence from witnesses. That will be relevant to the challenge to the factual findings. The Judge adjusted the starting point otherwise applicable to reflect issues of parity. In this context, Mr Hart raised an issue about the impact of Mr Horsfall’s bail conditions. Judge Perkins considered these and found they were not “particularly” restrictive.[5] Finally, the discount for the guilty plea appears, arguably, a generous one.[6]
[8] Whether the judge’s approach was correct will be addressed at the hearing of the appeal. However, there is nothing raised at this stage which is sufficiently compelling to mean that bail is in the interests of justice.
[9] I turn then to the second of the s 14(3) considerations relied upon, namely, the length of the sentence and likely length of time to hearing. A sentence of two and a half years imprisonment is fairly seen as “middling” with the consequence that it is a neutral factor.[7] The appeal is not to be heard until 12 March 2012. Two points can be made about that. First, the notice of appeal is dated 6 October 2011 but the bail application was not filed until sometime later, on 15 December 2011. Mr Hart explains there was some consideration given to an application to the District Court but the Judge was not available. That does not provide an adequate explanation for the delay over the course of which arrangements may well have been able to be made to hear the appeal. That leads to the second point which is that it does not appear from the record that urgency was sought for the hearing of the appeal. In relation to that matter, Mr Hart understood it was seen by the Court to be appropriate to hear this appeal together with that of one of the other co-offenders. As both Mr Horsfall and that co-offender raise issues of parity on their appeals that is probably the best course.[8] Earlier dates in mid to late-February 2012 would otherwise have been available.
[10] In the circumstances, I do not see these factors are such as to mean that bail is in the interests of justice.
[11] Finally, in terms of personal circumstances, Mr Hart says a job would be available for Mr Horsfall on release on bail. It is an unfortunate but all too common consequence of offending of this type that there will be some impact on matters of this kind. In all the circumstances of this case, this point is not such as to warrant a grant of bail.

Result

[12] For these reasons I am not satisfied that the grant of bail will be in the interests of justice. The application for bail is dismissed. If, in light of this decision, Mr Hart’s instructions are to seek an earlier hearing date, he will need to file a memorandum to that effect as a matter of urgency.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Horsfall DC Auckland CRI-2010-404-94, 4 October 2011.
[2] Bail Act 2000, s 14(3)(a).
[3] Bail Act 2000, s 14(3)(b) and (c).
[4] Bail Act 2000, s 14(3)(d).
[5] At [30].
[6] See: Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [76].
[7] This was the assessment made in Chambers v R [2011] NZCA 562 at [6].
[8] The appeal of the third co-offender is to be heard separately.