FAATAAPE V NEW ZEALAND POLICE HC ROT CRI-2009-063-697 [2009] NZHC 1091 (21 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                                  CRI-2009-063-697



                              TERRY JOHN FAATAAPE
                                     Applicant



                         
                     v



                               NEW ZEALAND POLICE
                                    Respondent



Hearing:
       21 August 2009
                (Heard at Rotorua)

Appearances: B Foote for Applicant
             M Wright for Respondent

Judgment:       21 August 2009


                               JUDGMENT OF ASHER J




Solicitors:
BJ Foote, O'Sullivan Clemens,
PO Box 646, Rotorua
M Wright, Gordon Pilditch, Crown Solicitor, PO Box 740, Rotorua




FAATAAPE V NEW ZEALAND POLICE HC ROT CRI-2009-063-697
21 August 2009

[1]     Mr Terry Faataape seeks bail. It is common ground that s 12 of the Bail
Act 2000 applies. Mr Faataape was
charged in February 2009 and appeared in the
District Court at Rotorua on 19 February 2009 facing charges of participating in a
criminal
group, aggravated burglary and injuring with intent to cause grievous bodily
harm.


[2]     The charges arose out of an incident
in Murapara on 27 January 2009. There
was a confrontation that developed throughout the day between Mongrel Mob
members and other
persons who it was believed were associated with another gang.
Ultimately there were serious assaults, and a young man was run over
and killed.


[3]     Mr Faataape was denied bail. At that stage it was thought that both ss 10 and
12(1)(b) of the Bail Act 2000
applied. The Judge recorded that he was not satisfied
"at least at this point" that the onus that rested on Mr Faataape under ss
10 and 12
had been discharged, and he refused the application. Since then there has been a
depositions hearing. The Crown has a much
better idea of the events that it wishes
to rely on. Charges against some of the group who were involved have not been
pursued. With
regard to Mr Faataape, he now only faces a charge of participating in
an organised criminal group under s 98A of the Crimes Act 1961,
and unlawful
possession of a firearm, namely a shotgun.          He faces a maximum term of
imprisonment of five years.


[4]   
 The Crown accepts that Mr Faataape had no direct connection with the death
of the victim. However, the Crown submits that Mr Faataape's
home was used as a
centre for the group during the day in question. It submits that he was involved in
supporting others in their
efforts to confront the other gang. There are text messages
from a time after the death of the victim, which the Crown submits shows
some
involvement in the activities of the gang in relation to the confrontation. Also, the
texts indicate that he had in his possession
a shotgun, which has not been located.


[5]     Mr Faataape denies the charges and puts forward the evidence of his
girlfriend to
indicate that he was not involved on the day in question. He has sworn
a short affidavit denying the charges and making some brief
comment on his earlier

criminal history. His girlfriend, Ms Rikihana, has confirmed in her affidavit that he
was with her at the
relevant time. His former wife has also sworn an affidavit
supporting him and offering him her address as a bail address while matters
are
sorted out (although this is not the address presently proposed as his bail address).
She has a protection order against him
but says that he has behaved quite well for
some time and that she does not foresee difficulties.


[6]     The trial is likely to
take place in the middle of next year. This will mean
that Mr Faataape will be in custody for approximately 18 months if he is not
granted
bail.


[7]     Mr Faataape has quite a long list of previous convictions. These have led to
the application of s 12(1)(b)
of the Bail Act 2000. This is because he is charged with
an offence that carries a maximum sentence of three years or more imprisonment.
In
this case the maximum sentence is five years' imprisonment on the charge of
participating in an organised criminal group. He has received 14 or more sentences
of imprisonment, although I note that these have added up because of multiple
convictions: on 15 February 1995, of six counts of
using a document for pecuniary
advantage, and on 8 May 2008, which was eight counts of acting in contravention of
a restraining order.


[8]     In terms of s 12(1)(b)(iii) he has previously been convicted of an offence that
was committed while he was remanded at
large or on bail, carrying a maximum
penalty of three or more years' imprisonment. He was convicted on one count of
assaulting a
person with a blunt instrument in 2000 when he was on bail. He was
sentenced to three months' imprisonment on that occasion. I understand
the assault
was on a child whom he hit with a stick.


[9]     Section 12(4) states that no defendant to whom the section applies
may be
granted bail unless the defendant satisfies the Judge that bail should be granted.
Section 12(5) specifies that, in particular,
a defendant must satisfy a Judge on the
balance of probabilities that the defendant will not while on bail or at large, commit:

        (a)    any offence involving violence against, or danger to the safety of,
               any other person; or

       (b)
    burglary or any other serious property offence.

There is no issue about burglary as there is no history of burglary offending.
The
question is, then, whether I am satisfied by the defendant that he will not, while on
bail, commit any offence involving violence.
             The period is likely to be
approximately ten months during which he would be on bail prior to the trial. He
has already
been in custody for approximately six months.


[10]   The Crown advises that the likely maximum sentence that Mr Faataape
would
face would be approximately two-and-a-half years' imprisonment.               The
question arises as to whether considerations under
s 8 of the Bail Act 2000 have
relevance to this exercise. I do not think that they can be ignored. The general right
to bail referred
to in s 7(5) of the Bail Act 2000, and the provisions of s 24(b) of the
New Zealand Bill of Rights Act 1990, mean that the likely
term of imprisonment as
against the likely length of time before the matter comes for hearing or trial cannot
be put to one side.
To take an extreme example, if an offender were facing a likely
sentence of home detention and there were no s 8(1) risks, it would
clearly be unjust
for bail to be denied. Here there is obviously a risk that even if Mr Faataape is
convicted, if he is not given
bail he will end up serving a term of imprisonment
considerably in excess of that which he might serve should he be convicted and
sentenced, but granted parole at an early date following the completion of one-third
of his sentence.


[11]   However, while s 8
factors are not to be ignored, the Court must carry out the
exercise required under s 12(5). Has the defendant satisfied the Court
that he will
not commit an offence involving violence for the duration of his bail period?


[12]   It is necessary to look at the
facts objectively. Mr Faataape's past record
shows that his last conviction in relation to violence (grievous bodily harm) was in
January 2004, when he was sentenced to nine months' imprisonment. The next most
recent conviction was the matter already referred
to in January 2000 involving
assault on a child, where he was sentenced to three months' imprisonment. Given
his poor past record
and the short sentence imposed, this does not appear to have
been a particularly serious assault. The next assault prior to that
was in 1994.

[13]      His record, while poor, is not nearly as bad as some that can be seen which
do show a real propensity towards
violence and a chronic inability to control such
tendencies. I would not put Mr Faataape in that category. Moreover, I note that
he
is getting older (he is now over 40), and that his former wife now supports him. It
has been the protection order that she has had which has led to some of his prior
convictions.
The fact that he has sorted out this aspect of his life is some indication
that the assertion that he has put his problems behind
him may be true. She has
obviously in the past not hesitated to take him to Court, so her assertion that he has,
on the whole, behaved
himself well for quite some time, and that she does not
foresee any difficulties, is influential.


[14]      I have to be cautious
about Mr Faataape's own assertions that he will abide
by the conditions of bail and stay out of trouble. But nevertheless I do not
ignore
them entirely.


[15]      The proposed bail address is a rural address in Whakatane occupied by a
friend.    It is relevant
that it is over an hour's drive away from Murapara.         If
Mr Faataape does have a strong gang association, it is less likely
that he will get into
trouble given the distance. The Crown is not happy with the bail address because of
the past record of the
person with whom he will reside, Ms PMR.             She has a
relatively benign record save for a 1990 conviction of attempted murder.
There are
no details given about this conviction, but I note she was sentenced to two years and
ten months' imprisonment, which is
a light sentence for offending of this type. She
appears to have largely had a trouble-free life apart from some minor convictions
and she is now 52 years old. She has a regular job as a budget adviser, and a
12 year-old son.


[16]      Given the fact that Ms
PMR's previous conviction is one-off and almost
20 years old, and that she otherwise appears to be of good character, I accept that
the
address proposed is a suitable bail address.


[17]      Mr Faataape has not been involved in violence for over five years. The
qualifying offending under s 12(1)(b)(ii) was of a relatively minor character. His
offending while on bail in 2000, relevant to s
12(1)(b)(iii), appeared to have a

domestic flavour, and the sentence imposed was relatively light. The violence that
he has been
convicted of on other occasions in the past does not appear to have been
serious violence. When I look at this record and consider
the assurances given, and
in particular the statement of his former wife, I am satisfied to the necessary degree
that he will not
commit an offence involving violence during the next ten months
should bail be granted. The ability to impose meaningful strict conditions
that will
reduce risk assists in this conclusion.


[18]   Bail is therefore granted on the following conditions. The offender is:


       a)      to reside at 101 Foster Road, RD 1, Whakatane;


       b)      not to associate with any members of the Mongrel
Mob. For the
               avoidance of doubt, he is not to associate with any of the co-accused
               or Crown witnesses.
       I do emphasise the prohibition on him
               associating with any Mongrel Mob members;


       c)      to report
three times a week to the Whakatane Police Station,
               Monday, Wednesday and Friday, between the hours of 9:00 am and
               5:00 pm;


       d)      to observe a curfew that will apply between the hours of 7:30 pm and
               7:00
am. Mr Faataape should be aware that there will be spot-checks,
               and he must abide by this term;


       e)      not
to go within 30 kilometres of the Central Post Office of Murapara
               or 10 kilometres of the Central Post Office of Kawerau;
and


       f)      not to consume alcohol or illicit drugs.




                                                              ............................
                                                                                Asher J