Mayo v R [2015] NZCA 633 (18 December 2015)

Last Updated: 20 January 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA689/2015 [2015] NZCA 633
BETWEEN	AUSTIN HERBERT MAYO Applicant
AND	THE QUEEN Respondent

Telephone Conference:	18 December 2015
Counsel:	L O Smith for Applicant I R Murray for Respondent
Judgment:	18 December 2015 at 10.45 am

ORAL JUDGMENT OF WINKELMANN J

The application for bail is declined.
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REASONS

[1] Mr Mayo applies under s 14 of the Bail Act 2000 (the Act) for the grant of bail pending the hearing of his appeal against sentence. He was convicted following trial of five charges of indecency with a girl between 12 to 16, one of which was representative, and four of indecency with a girl over 16.^[1]
[2] The charges relate to three complainants. The offending took place between 1976 and 1983 when each of the complainants was staying with Mr Mayo and his wife on their farm.
[3] Mr Mayo was sentenced by Judge Kiernan on 26 November 2015 to two years three months imprisonment.^[2] The Judge observed that even if in sentencing him she had arrived at a term of imprisonment of less than two years, she would not then have gone on to sentence him to home detention. This was because she considered that the sentencing purposes of deterrence and denunciation required that a sentence of imprisonment be imposed given the nature of the offending.
[4] Ms Smith explains that the sentencing appeal will be brought on the grounds that the Judge’s approach to the place of home detention in the range of sentences available to her was incorrect, that she placed too much emphasis on victim impact statements, and that she selected too high a starting point. Ms Smith refers to authorities including R v De Reeper and R v Dunlop^[3] to support her submission that a sentence of home detention was available in this case.
[5] The grant of bail pending the hearing of the sentencing appeal is opposed by the Crown.
[6] This application falls to be decided under s 14 of the Act which provides:

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.

[7] The statutory scheme is that 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, the onus being on the applicant to make out the case for bail. As this Court made clear in Ellis v R it is only in exceptional circumstances that an applicant will be granted bail pending an appeal.^[4]
[8] In arguing that the applicant has met that threshold Ms Smith addresses each of the s 14(3) factors. She says that the prospects of a successful appeal are good. She says that the sentence imposed upon Mr Mayo is relatively short so that by the time the appeal comes on for hearing unless he is released on bail, he will have served a significant portion of that sentence.
[9] As to personal circumstances she relies upon an affidavit filed by Mr Mayo’s employer Mr David Parker. Mr Parker says that Mr Mayo is a key employee of a business he runs renovating relocated houses to provide family homes for lowincome families. He says that he will not be able to replace him.
[10] Ms Smith also points out that Mr Mayo is a settled family man who is in his 60s. He has no other criminal history. He has been in a stable marriage for 40 years and has two sons who are both in professional employment. His wife and his sons fully support Mr Mayo. She says in the circumstances where he has good prospects on appeal, where he has been a responsible citizen within the community and has been fully employed during the last 40 years and where his employer requires his services to carry on what is an important business project, the test of exceptional circumstances which the Court of Appeal has applied in respect of s 14(1) is met.
[11] I consider that Mr Mayo has failed to discharge the onus upon him to show good grounds why bail should be granted. The grounds of appeal that Ms Smith outlines do not appear to be especially strong. On first impression at least, the Judge has undertaken a conventional sentencing exercise.
[12] The Judge was sentencing Mr Mayo for offending involving three complainants each of whom were vulnerable. They were staying at the applicant’s house, in his family’s care and they were each young, two of them under the age of 16. Although the offending is not the most serious, as Ms Smith conceded, it is properly viewed as falling somewhere between the less serious towards the medium end of the range of offending. In these circumstances the starting point that the Judge selected seems to have been available – at least on the information available to me.
[13] The Judge also allowed what seems a generous credit for Mr Mayo’s otherwise clean record to arrive at the final sentence. The Judge said that even if she had reached a lower sentence she would still not have sentenced Mr Mayo to home detention because she considered that would not have met the principles and purposes of sentencing. That too seems to have been a conventional approach in light of authorities such as R v Kennedy where this Court said that in cases involving sexual offending against children, imprisonment was the likely outcome.^[5] The sentence appeal cannot therefore be said to have a strong prospect of success.
[14] As to the impact of delay on the value of a right to appeal, this Court can provide a hearing of the sentence appeal on a date in February 2016. Ms Smith therefore is urged to make urgent contact with the Registry in that regard to obtain an early date. Although the sentence is relatively short I do not consider that if the appeal waits until February to be heard that will render the appeal nugatory.
[15] That leaves Mr Mayo’s personal circumstances. The sentence of imprisonment can have a harsh impact on employers and on families but that factor on its own, or in combination with the other factors highlighted by Ms Smith is not sufficient to discharge the onus on the applicant.
[16] For these reasons, I have concluded that the threshold in s 14(1) is not met and the application for bail pending appeal should be declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Mayo DC Auckland CRI-2014-044-000451.

^[2] R v Mayo, above n 1.

^[3] R v De Reeper [2012] NZCA 617, and R v Dunlop HC WN CRI 2005-085-5692 21 July 2006.

^[4] Ellis v R [1998] 3 NZLR 555, (1998) 15 CRNZ 594 (CA).

^[5] R v Kennedy [2011] NZCA 569.