Harris v R [2013] NZCA 611; [2014] 2 NZLR 438; (2013) 26 CRNZ 847 (4 December 2013)

Last Updated: 29 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA771/2013 [2013] NZCA 611
BETWEEN	DEAN FREDERICK HARRIS Appellant
AND	THE QUEEN Respondent

Hearing:	27 November 2013
Court:	Stevens, Wild and French JJ
Counsel:	C B Wilkinson-Smith for Appellant M F Laracy for Respondent
Judgment:	4 December 2013 at 3.00 pm

JUDGMENT OF THE COURT

The application for bail and for suspension of the sentence of home detention is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] Mr Harris was convicted in the District Court of a representative charge of theft by a person in a special relationship. His conviction followed the entry of a plea of guilty after he had sought a sentencing indication. He was sentenced by Judge Lynch to 10 months home detention.^[1] He immediately filed a notice of appeal against sentence. His grounds of appeal seek a reduction in sentence in recognition of his psychiatric health and his opportunities for employment.
[2] Mr Harris now applies pursuant to s 403A of the Criminal Procedure Act 2011 for a grant of bail and suspension of his sentence of home detention pending determination of his appeal. As we have explained in our judgment in Din v R,^[2] a case heard at the same time, this application requires us to consider the effect of the Administration of Community Sentences and Orders Act 2013 (the ACSO Act) which came into force on 23 October 2013. The ACSO Act altered the position under the Criminal Procedure Act and the Bail Act 2000 for bail applications in respect of appeals where a person is serving a sentence of home detention.
[3] Like the case of Mr Din, disposition of Mr Harris’ application for bail ultimately comes down to an application of the test in s 14 of the Bail Act. Counsel were agreed that the recent legislative changes have resulted in a situation where a person sentenced to home detention who seeks to have that sentence suspended is required to apply for bail. If bail is granted, a direction that the sentence of home detention is suspended would be made at the same time.
[4] This case differs from that of Mr Din in the following respect. In the latter case counsel were agreed that the application is to be treated in the same way and engaging the same test as for an applicant seeking bail following a custodial sentence. In this case Mr Wilkinson-Smith for Mr Harris argued that as the sentence of home detention was different in kind from a custodial sentence, a different approach to the test in s 14 of the Bail Act should be adopted. We address this argument below.
[5] For the reasons that follow we have decided that Mr Harris’ application for bail must be declined. However the test in s 14 of the Bail Act is approached, we are left in no doubt that Mr Harris’ application for bail cannot succeed.

Legislative changes

[6] Prior to the commencement of the Criminal Procedure Act, a sentence of home detention was automatically suspended upon filing a notice of appeal.^[3] The desirability or appropriateness of requiring an application for bail in such circumstances was discussed by this Court in R v Edwards.^[4]
[7] Under the Criminal Procedure Act, however, home detention is not included in the category of sentences which are automatically suspended upon the filing of an appeal.^[5] Following the commencement of the ACSO Act, a person serving a sentence of home detention is required to apply under s 55 of the Bail Act for a grant of bail. There is no need to burden this judgment by detailed reference to the relevant statutory provisions. These are discussed in some detail in the judgment in Din.^[6]
[8] Suffice it to note that Mr Harris’ application falls to be considered under the transitional provision in s 403A of the Criminal Procedure Act. As a person sentenced to home detention he may apply for bail pending the hearing of his appeal. While there is no automatic suspension of home detention, the appeal court may direct that the sentence be suspended following a successful application for bail.

What is the correct test for bail?

[9] There are two parts to this question. The first concerns which statutory provision applies in the case of a person whose appeal falls within the transitional period. This turns on the meaning of s 403A(c). The second issue relates to the nature of the test for bail in the case of an appellant sentenced to home detention if s 14 of the Bail Act applies.

Does s 14 of the Bail Act apply?

[10] We have already dealt with this issue in the Din judgment.^[7] For the reasons there explained we are satisfied that s 14 can be “read in” to the discretion in s 55 of the Bail Act that Judges may grant bail “on such terms and subject to such conditions as the court or Judge think fit”. Section 14 is therefore to be used to determine how that important discretion should be exercised.

The test under s 14

[11] Section 14 sets out the statutory test applicable to applications for bail pending appeal:

14 Exercise of discretion when considering bail pending appeal

(1) If a person is in custody or subject to a sentence of home detention 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.

(Emphasis added.)

[12] In Moananui v R Eichelbaum J endorsed the English position that bail pending appeal is unusual and should only be granted in exceptional circumstances.^[8] In R v Watton, for example, Geoffrey Lane LJ and Ackner and Watkins JJ summarised the relevant test as follows:^[9]

... are there exceptional circumstances, which would drive the Court to the conclusion that justice can only be done by the granting of bail?

[13] The “exceptional circumstances” test was adopted by this Court in Ellis v R as follows:^[10]

Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.

(Emphasis added.)

[14] This Court has since confirmed that the principles set out in Ellis remain applicable following the enactment of s 14 of the Act. In Iti v R Wild J noted that s 14 “encapsulates well settled principles stated by this Court in Ellis v R”.^[11]
[15] Mr Wilkinson-Smith accepts that the “exceptional circumstances” test continues to apply to applications for bail pending appeal where a custodial sentence has been imposed. However, he submits that a less stringent standard ought to be applied where the applicant has been sentenced to home detention. In response, Ms Laracy submits that the exceptional circumstances standard has been consistently applied in respect of all custodial sentences, including those of very short duration.
[16] We do not consider there is any merit in Mr Wilkinson-Smith’s argument. There is nothing in the wording of s 14 to suggest that an alternative standard is warranted in cases involving sentences of home detention. Furthermore, we are satisfied that the exceptional circumstances test is not to be read as an extension to the s 14(1) test of “the interests of justice”, but rather as an elaboration or explanation of that test. As was also said in Ellis, bail pending appeal is unusual. There is no basis for rejecting this interpretation merely because the sentence in question is one of home detention.

Submissions on application for bail

[17] Mr Harris has only recently obtained legal representation for the appeal. The application for bail simply states that bail ought to be granted due to his problems with depression and anxiety and his desire to return to employment. Mr WilkinsonSmith filed written submissions contending that instead of home detention a sentence of community detention ought to have been imposed. Counsel argued that although this was a lower-order punishment, it was appropriate because of two unusual features going to culpability:

• (a) the stolen money was used to pay for cancer treatment for his stepdaughter suggesting that there was no personal gain; and
• (b) Mr Harris was a 50 per cent owner of the victim company.

[18] Counsel referred to an affidavit filed by Mr Harris in which he referred to a diagnosis earlier this year of depression. Mr Harris claimed that the sentence of home detention “has had an impact on my mental health”. He also said that the sentence of home detention meant that there was a significant restriction on when he was able to leave the house and he was unable to go to work adding considerable financial stress to his family.
[19] Counsel referred to the need to further investigate Mr Harris’ medical condition, although he acknowledged that the report before the Court identified Mr Harris as experiencing “mild symptoms of depression” and increased levels of “psycho-social stress”.
[20] Counsel acknowledged the fact that the hearing of the appeal, scheduled for 20 February 2014, would take place reasonably promptly especially taking into account the summer vacation. A little over three months of the 10 month home detention sentence will have elapsed before the appeal is heard.
[21] Ms Laracy for the respondent submitted that this application does not meet the threshold for bail under s 14. First, the merits of the appeal do not appear to be strong. Given the sentence starting point of two and a half years imprisonment, the only options reasonably available to the Judge were either a short term of imprisonment or a term of home detention. A further drop down in the sentencing hierarchy would be unusual.^[12]
[22] Moreover, given that the appeal will be heard in February 2014, the length of the home detention sentence is not so short as to render the appeal nugatory. While Mr Harris claims that home detention has had a negative effect on his depression and anxiety, no formal assessment has yet been undertaken. No particular weight should be given to this aspect.

Discussion

[23] We approach the question of bail under s 14 of the Bail Act by reference to the considerations identified in s 14(3) which the Court may take into account. We recognise that the burden of proof rests on Mr Harris.
[24] With reference to the apparent strength of the grounds of appeal, it is relevant that the entering into of the guilty plea followed a sentence indication sought from the District Court Judge. A sentence of community detention was rejected by Judge Lynch at the sentencing indication stage and was not strongly pursued at the formal sentencing. Given the circumstances of the offending and Mr Harris’ previous convictions, that is hardly surprising.^[13]
[25] On the material currently before us we do not consider that the appeal against sentence is by any measure compelling.
[26] As to the length of sentence imposed and the time to the appeal, the sentencing Judge imposed 10 months home detention. Mr Wilkinson-Smith has accepted a fixture of the hearing of the appeal for 20 February 2014. As noted, this will mean that the approximate time to the hearing of the appeal is a little over three months.
[27] As to the personal circumstances of Mr Harris, his job situation is uncertain. His employment with an insurance company is currently under investigation. If that were terminated, any potential job loss would be a result of his conviction, not the sentence of home detention. Mr Harris would then need to seek alternative work. If he is successful in finding other work it would be open to him to approach his Probation Officer and seek to have arrangements made for him to be monitored at a location other than his home, thus allowing him to work.
[28] We do not consider that the other restrictions inherent in a sentence of home detention are such as to assist Mr Harris.
[29] We cannot comment on the assertion that the stolen money was used to pay for the step-daughter’s cancer treatment. Given the fact that child cancer treatment is usually funded within the health system, this claim needs further investigation.
[30] The fact that Mr Harris was a 50 per cent owner of the victim company does not change the seriousness of the charge being theft in a special relationship.
[31] Taking all these considerations into account, we are satisfied that Mr Harris has not discharged the onus in s 14(2) of the Bail Act of showing cause why bail should be granted. Indeed, he falls far short of doing so. This is not a case where there are obvious grounds of appeal for a sentence appeal. Less than a third of the sentence will elapse before the hearing of the appeal.
[32] For completeness, we add that even if Mr Wilkinson-Smith had persuaded us to adopt a different description of the test in s 14 than set out in Ellis v R, the result would have been the same.

Result

[33] Overall we are not satisfied that it is in the interests of justice in all the circumstances that Mr Harris be admitted to bail pending his appeal.
[34] Accordingly, the application for bail and for suspension of the sentence of home detention is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Harris DC Palmerston North CRI-2012-031-1358, 12 November 2013. Mr Harris was also sentenced to 75 hours community work and $45,475.00 reparation.

^[2] Din v R [2013] NZCA 610.

^[3] Crimes Act 1961, s 399 and Summary Proceedings Act 1957, s 124(3).

^[4] R v Edwards [2008] NZCA 109. There are similar discussions in R v Bisschop [2008] NZCA 229 and R v Ward [2008] NZCA 328.

^[5] Criminal Procedure Act 2011, ss 343 and 345.

^[6] Din v R [2013] NZCA 610 at [6]–[13].

^[7] Din v R [2013] NZCA 610 at [14]–[17].

^[8] Moananui v R (1984) 1 CRNZ 231.

^[9] R v Watton (1978) 68 Cr App R 293 at 297.

^[10] Ellis v R [1998] 3 NZLR 555 (CA) at 560.

^[11] Iti v R [2012] NZCA 307 at [7].

^[12] The sentencing hierarchy, set out in s 10A of the Sentencing Act 2002, places imprisonment ahead of home detention, which is itself ahead of community detention. As Ms Laracy submitted, there is no provision for an automatic “double drop” down this hierarchy.

^[13] For previous dishonesty offending Mr Harris was sentenced to community work.