Paia v R [2014] NZCA 44 (28 February 2014)

Last Updated: 5 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 77/2014 [2014] NZCA 44
BETWEEN	POKAI PAIA Appellant
AND	THE QUEEN Respondent

Counsel:	J Scott for Appellant G H Vear for Respondent
Judgment: (On the papers)	28 February 2014 at 3.00 pm

JUDGMENT OF HARRISON J

The application for bail is dismissed.
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REASONS

[1] Pokai Paia was found guilty at trial on two counts of sexual violation by unlawful sexual connection. On 21 January 2014 he was sentenced by Judge Clare Ryan to a term of two and a half years imprisonment.^[1] On 13 February 2014 Mr Paia lodged an appeal against sentence only. He has applied for bail pending the determination of his appeal.^[2]
[2] There is a statutory presumption against granting bail pending an appeal.^[3] An appellant must demonstrate that it is in the interests of justice that bail be granted. That onus is to be discharged according to the balance of probabilities.
[3] Ms Scott submits that Mr Paia’s grounds of appeal have strength because the Judge erred in refusing to take into account his mistaken subjective belief that the victim was consenting to sex. The Judge’s refusal was based on Mr Paia’s election not to give evidence, which Ms Scott submits was contrary to Mr Paia’s statutory rights.^[4] In the circumstances she submits that imprisonment was inappropriate and that Mr Paia should have been sentenced to home detention.
[4] In further support, Ms Scott refers to Mr Paia’s family circumstances. He is the father of five children. All five children are suffering emotional difficulties as a result of their father’s imprisonment. Also, Mrs Paia is experiencing other difficulties in making financial provision for the children. Ms Scott also refers to the prospect that a fixture to hear the appeal will not be available until May 2014.
[5] The Crown opposes. In particular, Ms Vear refers to the statutory presumption^[5] that a term of imprisonment is to be imposed for offending of this nature. Judge Ryan, who presided over the trial, held that Mr Paia would not have displaced that presumption even if a sentence of less than two years imprisonment, allowing the possibility of a sentence of home detention, had been fixed as the appropriate sentence term.
[6] Having considered the circumstances, I am not satisfied that Mr Paia has discharged his statutory burden. He has not shown that it would be in the interest of justice for bail to be granted. In particular, at this provisional stage he has not shown that the merits of his appeal are strong. Also, as Ms Vear points out, familial adversity is a common consequence of a parent’s imprisonment for serious offending; and arrangements can be made for financial assistance, in any event. More importantly, a fixture is available before a Divisional Court of this Court to hear Mr Paia’s appeal on 24 March or 3 April 2014 providing Ms Scott makes prompt arrangements with the registry.
[7] The application for bail is dismissed.

Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Paia DC Auckland CRI-2012-004-19924, 21 January 2014.

^[2] Bail Act 2000, s 70.

^[3] Bail Act 2000, s 14.

^[4] New Zealand Bill of Rights Act 1990, s 25(d).

^[5] Crimes Act 1961, s 128B.