Rippin v R [2014] NZCA 62 (13 March 2014)

Last Updated: 20 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA94/2014 [2014] NZCA 62
BETWEEN	PATRICK EUAN RIPPIN Appellant
AND	THE QUEEN Respondent

Counsel:	D W Grove for Appellant G H Vear for Respondent
Judgment: (On the papers)	13 March 2014 at 10.15 am

JUDGMENT OF STEVENS J

The application for bail and for suspension of the sentence of house detention is declined.
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REASONS

Introduction

[1] The appellant was convicted following trial by Judge alone of concealing property to the value of $500 or more,^[1] namely $277,709.22 from the Official Assignee.^[2] He was sentenced to five months home detention.^[3] He has appealed against sentence. Pending determination of his appeal, Mr Rippin has applied for bail and a suspension of the sentence of home detention under s 55 of the Bail Act 2000.^[4] The application is opposed.
[2] This Court considered in Din v R the relevant law to an application of this kind.^[5] Exercising the power given to a single judge of this Court, I have personally considered the application.^[6]
[3] An application under s 55 is governed by s 14 of the Bail Act.^[7] Section 14 generally creates a presumption against a grant of bail pending appeal.^[8] The onus is on the appellant to demonstrate on the balance of probabilities that it is in the interests of justice that bail be granted.^[9] When considering the interests of justice the Court may take into account the considerations set out in s 14(3). The well known authorities of this Court confirm that admission to bail pending appeal is unusual and only to be granted in exceptional circumstances.^[10]

Appellant’s submissions

[4] The application is supported by two memoranda from counsel and an affidavit dated 13 December 2013 from Dr McCartie, who has treated the appellant for around 12 and a half years. Dr McCartie has also provided an updating letter of 28 February 2014 in which he said this:

Further to my letter of 26 February 2014, I am again writing in the capacity of Patrick’s family doctor. This letter is to provide an update regarding Patrick’s mental health condition. I assessed him in person on the afternoon of 27 February 2014. He was markedly distressed, shaking and crying. He had ongoing suicidal thoughts. He was unable to reassure me that he was not planning to harm himself.

My assessment was that Patrick was a significant potential risk to himself. I therefore arranged for him to be seen acutely later that afternoon/evening by the Mental Health Crisis Team and for them to do a further psychiatric risk assessment and arrange appropriate ongoing care and supervision.

[5] There are two strands to the appellant’s submissions. The first is the length of sentence that has been imposed and the apparent strength of the appeal. The second is the appellant’s mental health condition, reflecting his personal circumstances, and the apparent deterioration in his condition since the sentence of home detention was imposed.

Discussion

[6] The first issue is the apparent strength of the grounds of appeal. The notice of appeal states inter alia that:

Given the appellant’s chronic psychiatric and physical illnesses, the sentence was unjustly harsh and lacks compassion given that the sentence of home detention will have the same dire consequences for Mr Rippin as jail. The effect of being isolated and unable to undertake routine daily tasks given his mental illnesses and suicidal tendencies may have the most drastic and tragic consequences.

Further, the sentencing Judge dismissed community detention on the basis that Mr Rippin would not be able to undertake community work. Community detention and community work were recommended by the Probation Officer who had met and interviewed Mr Rippin.

[7] Judge Ryan at sentencing adopted a starting point of 18 months imprisonment. Despite the absence of a guilty plea and no apparent remorse, discounts totalling eight months (around 44 per cent) were allowed for mitigating factors such as the appellant’s age, health difficulties, previous good character and additional steps the Official Assignee could have taken. The Judge then exercised a discretion to impose a sentence of home detention rather than a short term of imprisonment.
[8] It seems from the notice of appeal that there is no challenge to the starting point. Neither does the notice of appeal suggest an error of principle or law, or that the sentence is manifestly excessive. What is suggested is that the sentence was “unduly harsh and lacks compassion”. However, given the nature of the offending and the generous discounts applied, it is difficult to perceive any apparent strength in this ground of appeal.
[9] The second factor advanced in support of bail relates to the personal circumstances of the appellant. In summary, the appellant seeks bail because he has a diagnosis of a major depressive disorder and it is said that home detention is likely to cause severe deterioration in his mental state due to the social isolation involved.
[10] However, as counsel for the respondent submits, reference to the pre-sentence report indicates that the appellant has good support in the community from his immediate family. He lives with his wife and adult children, who are willingly supporting him during the period of detention. Moreover, Dr McCartie is plainly aware of the appellant’s condition and has assisted the appellant through his active engagement with mental health services in the past. In particular Dr McCartie has continued to be involved in treating the appellant since the sentence of home detention was imposed, and has arranged for the Mental Health Crisis team to do a psychiatric risk assessment and arrange appropriate ongoing care and supervision. Such steps can be undertaken with the assistance of the Probation Officer.
[11] Counsel for the appellant has raised the issue of a need for urgent medical treatment. As counsel for the respondent has pointed out, if there is a crisis involving the appellant, the appellant is permitted to leave the home detention address.^[11] Moreover, further absence for other specified reasons may be granted by the Probation Officer upon a properly supported request being made by or on behalf of the appellant.^[12]
[12] The case officer has confirmed through the appellant’s counsel that the appellant has been dealing directly with the Probation Officer and the latter is aware of Dr McCartie’s involvement. Accordingly, it seems clear that if there is any deterioration in the appellant’s mental health, this can be promptly and adequately managed through the normal channels as part of the sentence of home detention. Further, I reiterate that during the period of home detention the appellant will not be living alone, but with his wife and two adult children.
[13] The material filed in support of the application does not demonstrate that the sentence of home detention has caused or will cause a situation that cannot appropriately be dealt with by the medical authorities.
[14] A further relevant factor is the length of time that will pass before the appeal is heard. The Fixtures Scheduler has advised that a fixture is available for Thursday 3 April or Monday 28 April 2014, both in Auckland. Accordingly a relatively short period will lapse before the appeal is heard.

Result

[15] I am not satisfied that the appellant has demonstrated the existence of exceptional circumstances. Neither the apparent strength of the grounds of appeal, nor the personal circumstances associated with the appellant’s mental health, nor the time before the appeal can be heard, suggest that it is in the interests of justice that bail should be granted and the sentence of home detention suspended.
[16] Accordingly the application for bail and suspension of home detention is declined.

Solicitors:
Ellis Law, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Rippin DC Auckland CRI-2012-004-005351, 6 November 2013.

^[2] Insolvency Act 2006, s 420(2)(a), the maximum penalty for which is three years imprisonment and/or a fine not exceeding $10,000.00.

^[3] R v Rippin DC Auckland CRI-2012-004-005351, 26 February 2014.

^[4] Criminal Procedure Act 2011, s 403A pursuant to the Administration of Community Sentences and Orders Act 2013.

^[5] Din v R [2013] NZCA 610 at [6]–[13].

^[6] Criminal Procedure Act, s 333(2)(d).

^[7] Din v R, above n 5, at [17]; Harris v R [2013] NZCA 611 at [11].

^[8] Harris v R, above n 7, at [12].

^[9] Bail Act 2000, s 14(2).

^[10] Ellis v R [1998] 3 NZLR 555 (CA) at 560; Iti v R [2012] NZCA 307 at [7].

^[11] Sentencing Act 2002, s 80C(3)(a) and (b).

^[12] Sentencing Act, s 80C(3)(c)(vi).