Byrne v R [2013] NZCA 679 (19 December 2013)

Last Updated: 26 December 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA802/2013 [2013] NZCA 679
BETWEEN	AMY JANE BYRNE Appellant
AND	THE QUEEN Respondent

Counsel:	A M Stevens for Appellant P D Marshall for Respondent
Judgment: (On the papers)	19 December 2013 at 3.30 pm

JUDGMENT OF FRENCH J

The application for bail is dismissed.
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REASONS

[1] Following a District Court jury trial, Ms Byrne was convicted of one count of burglary. The circumstances of the offending were that Ms Byrne was employed by a security firm and used her knowledge of a client’s alarm system to burgle its premises. She was sentenced by Judge Crosbie on 11 November 2013 to 12 months’ imprisonment.^[1]
[2] On 28 November 2013 Ms Byrne filed an appeal against sentence in this Court contending that she should not have been sent to prison but that the appropriate sentence was home detention. She now seeks bail pending the determination of her appeal. The appeal is to be heard on 17 February 2014.
[3] Counsel agreed that the bail application could be dealt with on the papers.

Grounds of the bail application

[4] Counsel for Ms Byrne advances the following arguments:

• (a) Ms Byrne is 31 years of age and pregnant with her first baby, due in March 2014. She has no previous convictions, the offending was isolated and the loss sustained by the victim was small. On the basis of authorities such as R v Hill and Iosefa v Police, the appeal has reasonable prospects of success.^[2] However, unless bail is granted, the benefits of a successful appeal will be severely diminished due to the time that will have been spent in prison between now and the hearing date.
• (b) Ms Byrne’s personal circumstances favour bail being granted. She has suffered from depression and anxiety and there is a family history of post-natal depression. All her medical and family supports are in Dunedin.
• (c) It is in the interests of the community that a baby be given every opportunity to thrive. A prospective mother should not be in custody if possible.

[5] In support of the application, counsel has filed letters from Ms Byrne’s doctor, sister and midwife. The midwife states that she has attended Ms Byrne on two occasions as a result of stress caused by the prosecution and sentencing and that stress can cause complications for a mother and/or her baby.
[6] The Crown opposes bail being granted.

Discussion

[7] The test to be applied is set out in s 14 of the Bail Act 2000:

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.

[8] Under s 14(1), the court must not grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice to do so. Section 14(2) provides that the onus is on the appellant to show why bail should be granted.
[9] As noted in Ellis v R, admission to bail pending appeal is unusual and only to be granted in exceptional circumstances.^[3] The concern is for the overall interests of justice, the starting point being that the appellant has been found guilty and sentenced.
[10] I have carefully considered the submissions made on Ms Byrne’s behalf. However, I am not persuaded it would be in the interests of justice to grant bail.
[11] First, in so far as it is possible to assess the merits of an appeal at this early stage, I do not consider Ms Byrne’s appeal to be a particularly strong one. An appeal against a refusal to impose home detention is an appeal against the exercise of a discretion. The focus of the appeal must therefore be on the identification of error. It is not an opportunity to revisit or review the merits. Yet Ms Byrne does not identify any error and appears to be inviting the Court to consider the matter afresh. The sentencing notes suggest that the Judge was cognisant of the relevant sentencing principles and authorities.
[12] Secondly, the length of time that will pass before the appeal is heard will not render the appeal nugatory. A reasonably substantial portion of the sentence will still remain to be served.
[13] Thirdly, as regards Ms Byrne’s personal circumstance, there is no evidence of any actual problems with the pregnancy and no suggestion that there are inadequate facilities in the prison should any arise. The midwife has not seen Ms Byrne since she was imprisoned. Of itself, pregnancy does not amount to exceptional circumstances.

Outcome

[14] The application for bail is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Byrne DC Dunedin CRI-2012-012-3493, 11 November 2013.

^[2] R v Hill [2009] NZCA 42; Iosefa v Police HC Christchurch CRI-2008-409-69, 23 May 2008.

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