Hakaoro v R [2014] NZCA 204 (28 May 2014)

Last Updated: 4 June 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA176/2014 [2014] NZCA 204
BETWEEN	HAKAORO HAKAORO Appellant
AND	THE QUEEN Respondent

Telephone Conference:	26 May 2014
Counsel:	M Goodwin for Appellant M Downs for Respondent
Judgment:	28 May 2014 at 3.00 pm

JUDGMENT OF WHITE J

The application for bail is declined.
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REASONS

[1] The appellant, Hakaoro Hakaoro, pleaded guilty in the Manukau District Court to six counts of providing immigration advice without being licensed and one count of holding himself out as an immigration adviser without being licensed or exempt. Mr Hakaoro was sentenced on 22 January 2014 to one year eight months’ imprisonment and ordered to make reparation of $5,000.^[1]
[2] Mr Hakaoro has appealed to this Court against his sentence and has also applied for bail pending the hearing of his appeal under s 55 of the Bail Act 2000. Mr Hakaoro’s appeal is to be heard by the Criminal Appeal Division of the Court sitting in Auckland on 18 June 2014.
[3] Bail is opposed by the Crown.
[4] I have personally considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.^[2]

Relevant principles

[5] 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.
[6] Section 14(3) sets out a number of considerations which may be taken into account when determining what is in the interests of justice. In this case Mr Hakaoro relies on the apparent strengths of his grounds of appeal.^[3]

Discussion

The apparent strengths of the grounds of appeal

[7] It is not necessary or appropriate to undertake an extensive analysis of the merits of an appeal in determining an application for bail.^[4] It has also been pointed out that the prospects of success on appeal need to be very strong before this factor can go in the balance on the side of granting bail.^[5]
[8] For Mr Hakaoro, Mr Goodwin submits that the grounds of appeal in this case are strong because:

• (a) The sentence imposed by Judge Paul is inconsistent with the sentence imposed by Judge Hubble in R v Ekuale^[6].
• (b) The pre-sentence report which Judge Paul relied on in sentencing Mr Hakaoro contained several serious inaccuracies, namely statements relating to his relationship with the Immigration Advisers Authority, his remorse and the length of his relationship with his partner.
• (c) The Judge failed to take into account Mr Hakaoro’s offer to repay the full amount involved of $13,300.

[9] For the Crown, Mr Downs submits that the grounds of appeal are arguable but not otherwise strong. The error in the pre-sentence report relating to the length of Mr Hakaoro’s relationship is accepted, but the other criticisms of the report are disputed. The Crown will be filing an affidavit from the report writer prior to the hearing of the appeal.
[10] I agree with Mr Downs that while the grounds of appeal are arguable they do not appear to be particularly strong. The decision in R v Ekuale related to different offences and different circumstances. The criticisms of the pre-sentence report, which are disputed, are not able to be resolved in advance of the hearing of the appeal. It is not at all clear that, in determining the quantum of the reparation order, the Judge failed to take into account Mr Hakaoro’s repayment offer.

Length of sentence imposed and likely length of time before appeal will be heard

[11] As already noted, Mr Hakaoro’s appeal has been set down for hearing on 18 June 2014. As he will be released after serving one-half of the one year and eight months’ sentence of imprisonment imposed on 22 January 2014, his appeal will not be rendered nugatory and no injustice will arise from Mr Hakaoro remaining in custody pending the determination of his appeal.

Personal circumstances

[12] Mr Goodwin confirmed that Mr Hakaoro does not rely on any relevant personal circumstances in support of his application.
[13] When all of these considerations are taken into account, I am not satisfied that it is in the interests of justice to grant Mr Hakaoro bail pending the appeal. No exceptional circumstances have been made out.^[7]

Timetable

[14] After discussion with counsel and for the purpose of expediting the hearing of the appeal, I made the following timetable directions at the telephone conference:

• (a) The Crown is to arrange for the filing and service of the affidavit from the writer of the pre-sentence report by Friday 30 May 2014 and by the same date to give notice whether Mr Hakaoro and his brother are required for cross-examination on their affidavits.
• (b) Mr Hakaoro’s submissions in support of his appeal are to be filed and served by 6 June 2014 and he is to give notice by the same date whether the report writer is required for cross-examination on his affidavit.
• (c) The Crown submissions are to be filed and served by 11 June 2014.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Department of Labour v Hakaoro DC Manukau CRI-2011-092-19106, 22 January 2014.

^[2] See now s 333(2)(d) of the Criminal Procedure Act 2011.

^[3] Bail Act 2000, s 14(3)(a).

^[4] R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R [1998] 3 NZLR 555 (CA).

^[5] Hosking v R [2012] NZCA 263 at [5] and see R v Veza [2007] NZCA 409.

^[6] R v Ekuale DC Auckland CRI-2010-092-13059, 8 February 2013.

^[7] Compare Iti v R [2012] NZCA 307 at [7], citing Ellis v R, above n 4, at 560.