Freeman v R [2016] NZCA 85 (23 March 2016)

Last Updated: 1 April 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA50/2016 [2016] NZCA 85
BETWEEN	APRIL LORRAINE FREEMAN Appellant
AND	THE QUEEN Respondent

Counsel:	W C Pyke for Appellant A J Ewing for Respondent
Judgment: (On the papers)	23 March 2016 at 4 pm

JUDGMENT OF COOPER J ON
APPLICATION FOR BAIL PENDING APPEAL

The application for bail pending appeal is declined.
____________________________________________________________________

REASONS

[1] The appellant seeks bail pending determination of her appeal against conviction and sentence. I have considered the application pursuant to s 333(2)(d) of the Criminal Procedure Act 2011.
[2] On 7 December 2015, following a trial at the Manukau District Court, the appellant was convicted on two representative counts of theft (over $1,000). On 21 January 2016, she was sentenced to 15 months’ imprisonment.^[1]
[3] Bail pending sentence had been declined by the trial Judge, Judge Andrée Wiltens.^[2] However, the High Court allowed an appeal against that decision.^[3]
[4] In advancing the application for bail Mr Pyke notes that the conviction appeal will be focused on complaints about trial counsel, and may involve calling further evidence as well as complaints about decisions and directions made by the trial Judge. Mr Pyke has also referred to issues about the reliability of the complainant: these were explored at trial but are to be pursued in the fresh evidence application. Mr Pyke points to the risk that the sentence appeal will become otiose due to the complexities of the conviction appeal and the time that will necessarily lapse before it can be readied for hearing. Counsel are agreed that the sentence release date will be 24 August 2016.
[5] The test to be applied in relation to the application is that set out in s 14 of the Bail Act 2000. 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 appellant to show cause why bail should not be granted. Section 14(3) then lists as specific considerations relevant to the interests of justice the apparent strength of the grounds of appeal, the length of the sentence imposed, the likely length of time that will pass before the appeal is heard, and the personal circumstances of the appellant and her immediate family. There is a residual category of “other matters” the Court considers relevant. However, as was said in Ellis v R^[4] and affirmed in Iti v R^[5]:

Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.

[6] Although Mr Pyke has addressed the conviction appeal in general terms, it is still in the course of preparation, and the submissions he has been able to make would not justify a grant of bail on the basis of the apparent strength of that appeal.
[7] More significant issues arise in relation to the sentence appeal. The principal issue is the appellant’s claim that the judge did not give proper consideration to the possibility of a sentence of home detention. The starting point is the sentencing Judge’s conclusion that the overall offending merited a sentence of 15 months’ imprisonment.^[6] The term reflected an allowance of three months in respect of issues personal to the appellant including her mental and physical health, and the fact that she was a sole caregiver for a three year old child.^[7] Nevertheless, the sentence was one which if considered appropriate might have merited a sentence of home detention.^[8]
[8] It is clear that the Judge turned his mind to whether a sentence of home detention would be appropriate. He explained his reasons for rejecting that course:

[14] It seems to me, with a large number of previous similar convictions emanating back to 2004 when they occurred, 2005 when you were sentenced for that to a term of imprisonment with leave to apply for home detention, that it would be entirely wrong for me to reduce the sentence down to home detention or a community-based sentence. I indicated as much to you before this trial commenced – that I thought, as Judge Winter did when he gave you his sentence indication, that home detention was not the answer here. It did not meet the purposes and principles of sentencing in your particular circumstances. This is deliberate, continued offending involving blatant dishonesty of a similar type to what you have done before. In the circumstances, there is only one sentence that is available for you, and that is imprisonment.

[9] The substance of Mr Pyke’s submissions in relation to the sentence appeal arises out of the High Court decision in which the appellant was granted bail pending sentencing. He noted that the High Court had found the District Court Judge erred when finding that the appellant had previously been sentenced to home detention. That is clearly not an error that affected the sentence actually imposed which, in the passage quoted above, clearly recognised the appellant was granted leave to apply for home detention. Other considerations influencing the High Court were the absence of convictions for breaching bail conditions or offending whilst on bail^[9] and the view that a sentence of imprisonment might not be a “foregone conclusion”.^[10]
[10] It is also plain that the High Court Judge was influenced by the consideration that bail pending sentence would enable the appellant to arrange for someone to look after her daughter in the event that a term of imprisonment was imposed.^[11] That is the position that had been reached when sentencing actually took place. It is unclear what the current arrangements are for the care of the appellant’s young daughter. However, the previous grant of bail was so as to enable appropriate arrangements to be made. There is no evidence such arrangements were not put in place and this issue is not pressed in support of the present application.
[11] Mr Pyke refers to the ongoing consideration that the appellant’s obligations with respect to her young child are factors that incentivise rehabilitation and cooperation with sentencing conditions. I accept that is so. However, the relevant considerations seem to have been taken into account in the sentencing exercise.
[12] I am not satisfied on the material available to me that the appellant would be in a position to assert strong grounds in support of her sentence appeal. Standing in the way of such a conclusion is the appellant’s record of previous offending. The circumstances of that previous offending were referred to in an earlier judgment of this Court in the context of an application for extension of time to apply for leave to appeal.^[12] On that occasion, the Court noted that the propensity evidence the subject of the application comprised 35 previous convictions for theft in a special relationship.^[13] The circumstances involved the theft from her employer of sums totalling $36,091.35.^[14]
[13] Mr Pyke endeavours to contrast the present offending on the basis that it was “against a flat-mate who she assisted with bookkeeping and accounts”. However, it is clear that the appellant was employed by the complainants to manage accounts and undertake general administration duties for a company controlled by him.^[15] I am not persuaded that the fact that the complainant was a flatmate is a significant difference for present purposes.
[14] Although some reference is made to the appellant’s health and in particular her mental health, I am not satisfied that these are items that cannot be adequately accommodated by treatment available in prison.
[15] Although Mr Pyke refers to the possibility of delay until the appeal is heard, an urgent fixture would be made available if the appellant were to proceed expeditiously.
[16] Overall, I have not been persuaded that the prospects of success on the sentence appeal are such that they favour a grant of bail pending the appeal.
[17] In all the circumstances the application for bail pending appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Freeman [2016] NZDC 730.

^[2] R v Freeman [2015] NZDC 24354.

^[3] Freeman v R [2015] NZHC 3234.

^[4] Ellis v R [1998] 3 NZLR 555 (CA) at 560.

^[5] Iti v R [2012] NZCA 307 at [7].

^[6] R v Freeman, above n 1, at [9].

^[7] At [12].

^[8] Sentencing Act 2002, ss 4 and 15A.

^[9] Freeman v R, above n 3, at [27].

^[10] At [28].

^[11] At [28].

^[12] Freeman v R [2015] NZCA 545.

^[13] At [7].

^[14] At [6].

^[15] Freeman v R, above n 3, at [2].