Alexander v R [2012] NZCA 557 (29 November 2012)

Last Updated: 4 December 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA730/2012 [2012] NZCA 557

BETWEEN JOHN BORRIE ALEXANDER Applicant

AND THE QUEEN Respondent

Counsel: Applicant in Person J E Mildenhall for Respondent

Judgment: 29 November 2012 at 11.30 am

(On the Papers)

BAIL JUDGMENT OF WHITE J

The application for bail is declined.

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REASONS

Introduction

[1] The applicant, Mr Alexander, was found guilty after a trial by jury in the District Court at Greymouth on two counts of cultivation of cannabis and not guilty on one count of possession of cannabis for supply. One cultivation count related to a growing operation in his house comprising 15 plants, while the other related to three rubbish bags of recently harvested cannabis plant material found in his car.
[2] Mr Alexander was sentenced by Judge Saunders to two years and two months’ imprisonment.[1]
[3] Mr Alexander has appealed against his sentence on the ground that it was manifestly excessive. He claims that the 20 month starting point adopted by Judge Saunders was too high, the six month uplift for previous convictions was excessive, that he should have received a discount for a “without prejudice” proposal to plead guilty to the cultivation charges if the supply charges were withdrawn and that the Judge placed excessive reliance on his prior history.

Basis of application

[4] Mr Alexander submits that he should be granted bail pending the hearing of his appeal on the grounds that:

(a) a successful appeal may result in a non-custodial sentence;

(b) a successful appeal may result in a reduced custodial sentence culminating in the time served to date being equal to that imposed upon appeal (Mr Alexander served approximately 21 days on remand prior to sentence and has subsequently served some 41 days);

(c) in the event of a home detention sentence being imposed, bail (electronic or otherwise) allows arrangement of the appropriate facilities.

[5] For the Crown, Ms Mildenhall has filed a memorandum opposing Mr Alexander’s application. She submits that the grounds put forward in the application are not sufficiently exceptional to displace the statutory presumption against bail pending determination of the appeal. She points out that:

(a) the case fits within the category discussed in R v Terewi[2] where the borderline between the sentencing bands is “indistinct” and “incapable of exact demarcation”;

(b) given Mr Alexander’s drug offending history, the uplift was not excessive; and

(c) the Judge considered Mr Alexander’s reasons for proceeding to trial, and correctly found that he could not claim credit for early guilty pleas or acceptance of responsibility.

Discussion

[6] I have personally considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.
[7] Section 14 of the Bail Act 2000 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.

[8] As can be seen, the onus is on Mr Alexander to show cause why bail should be granted. In my view, he has not done so. First, as Ms Mildenhall points out, Mr Alexander’s grounds of appeal do not appear to be particularly strong. Second, while no fixture has been allocated for the appeal yet, on the basis that it is heard early in 2013 the appeal will not be rendered nugatory and no injustice will arise from Mr Alexander remaining in custody pending its determination. Third, Mr Alexander has not shown that the consequences of imprisonment pending appeal will be unduly harsh or damaging or that there are any other relevant considerations for the Court.

Decision

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

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Alexander DC Greymouth CRI-2011-018-391, 19 October 2012.
[2] R v Terewi [1999] 3 NZLR 62 (CA).