Ludlow v R [2012] NZCA 447 (28 September 2012)

Last Updated: 8 October 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA186/2012 [2012] NZCA 447

BETWEEN TREVOR ALLAN LUDLOW Applicant

AND THE QUEEN Respondent

Counsel: Applicant in person M H Cooke for Respondent

Judgment: 28 September 2012 at 2 pm (On the papers)

BAIL JUDGMENT OF ARNOLD J

The application for bail is declined.

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REASONS

Introduction

[1] The applicant, Mr Ludlow, was charged with six counts of theft by a person in a special relationship and one count of false accounting arising out of his role as a director of National Finance 2000 Ltd. He entered a plea of guilty to one count of theft and was convicted of the remaining counts at a judge-alone trial before Judge Bouchier. Mr Ludlow was sentenced to a term of imprisonment of five years, seven months.[1]
[2] Mr Ludlow has appealed against his sentence, on the ground that it was manifestly excessive. He has also indicated that he may appeal against his conviction, but as yet no notice of appeal in relation to that has been filed. Mr Ludlow now applies for bail pending his appeal.

Basis of application

[3] Mr Ludlow submits that he should be granted bail so as to allow him to prepare properly for his appeal, which he says he cannot do while incarcerated. He says that he has requested the prison authorities to allow him access to a fax machine, a computer and a printer but that these requests have been declined. Mr Ludlow also submits that there is a high level of public interest in the appeal.
[4] For the Crown, Ms Cooke has filed a memorandum opposing Mr Ludlow’s application. She submits that the end sentence of five years, seven months’ imprisonment was well within range for this type of offending. In the absence of any detail in support of Mr Ludlow’s appeal, it cannot be said that the appeal is likely to succeed. Moreover, even if the appeal were to succeed, there is little risk that the length of the sentence would be reduced so dramatically as to render the appeal nugatory. Finally, Ms Cooke notes that the difficulty in preparing the appeal from prison is not a relevant factor in terms of s 14(3) of the Bail Act 2000.

Discussion

[5] Section 14 of the Bail Act sets out the relevant test. It provides:

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.

[6] As can be seen, the onus is on Mr Ludlow to show cause why bail should be granted. In my view, he has not done so. As Ms Cooke points out, Mr Ludlow has not given any indication of the basis for his argument that the sentence is manifestly excessive. As a consequence, it is difficult to assess the strength of the appeal. Moreover, although the appeal has not yet been set down for a hearing, given the nature of the offending and the length of sentence imposed, it is most unlikely that a failure to grant bail will result in Mr Ludlow spending too long in prison. Finally, no personal circumstances have been raised in support of the application.
[7] The application for bail is squarely based on the difficulty that Mr Ludlow says he will face in preparing his appeal from prison. However, that is not a matter that properly goes to whether bail should be granted. As this Court has previously held, complaints about the inadequacy of prison facilities for the preparation of appeals must be pursued through other avenues and are not relevant to the question of bail.[2]
[8] The obligations of the prison authorities in relation to providing assistance to inmates who are appealing are set out in reg 193 of the Corrections Regulations 2005. If Mr Ludlow is having difficulty accessing the facilities he requires, he should make a formal request to the prison authorities, who must properly address that issue in accordance with their obligations under the regulations.

Decision

[9] Mr Ludlow’s application for bail pending appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Ludlow DC Auckland CRI-2009-004-23758, 20 October 2011.
[2] R v Greer CA179/06, 21 December 2006 at [4]; Williamson v R [2010] NZCA 541 at [7]–[10].