HAYDEN ROBERT POOLE V NEW ZEALAND POLICE HC WN CRI 2009-435-05 [2009] NZHC 1167 (3 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                  CRI 2009-435-05



                           HAYDEN ROBERT POOLE



                                           v



                           
NEW ZEALAND POLICE



Hearing:       3 September 2009

Counsel:       K Daniels for the Accused
               J M Webber for Crown

Judgment:      3 September 2009


                       JUDGMENT OF SIMON FRANCE J
                              (Bail appeal)



[1]    On 25 February 2009 Mr Poole was sentenced to community work and
community detention in relation to charges of unlawfully
taking a motor vehicle,
theft from a car, and a boy racer type offence.


[2]    The community detention was for a period of three
months. Mr Poole on
three occasions breached the terms of his community detention: 13 March, 2 May
and 7 May. On 7 August he pleaded
guilty to these breaches.


[3]    In the interim, on 27 and 28 July, accompanied by two others, Mr Poole
embarked upon an offending
spree. Arising out of that offending, he has pleaded
guilty to a number of driving offences, namely:


HAYDEN ROBERT POOLE V NEW
ZEALAND POLICE HC WN CRI 2009-435-05 3 September 2009

       a)     careless driving;


       b)     dangerous driving;


   
   c)     failing to stop;


       d)     driving whilst disqualified;


       e)     driving with excess breath alcohol; and


       f)     failing to stop and ascertain injury (x 2).


[4]    In addition, there are further charges to which he has pleaded
not guilty,
namely:


       a)     theft from a vehicle;


       b)     unlawfully taking a motor vehicle; and


       c)    
three charges of burglary.


[5]    As noted all this offending and alleged offending occurred on 27 and 28 July.
On 28 July in relation
to these charges Mr Poole was granted bail subject to a
number of conditions which included residing at his parents address, a 7.00
p.m. to
7.00 a.m. curfew, a non-association condition, and a condition that he not consume
alcohol or drugs.


[6]    The next day
Mr Poole was found out at 8.26 p.m. so therefore in breach of
his curfew.   He was arrested but bailed again the following day on
the same
conditions.


[7]    Then on 7 August 2009 he was found in Pahiatua. He had been a passenger
in a vehicle that was stopped.
When the police approached the vehicle he got out
and started to walk away and when challenged he ran. The police apprehended him
and found him to be intoxicated. This was at 12.30 a.m. Accordingly, he was in

breach of both curfew and alcohol conditions.  
        He was again arrested and on
12 August sought to be omitted again to bail. The District Court declined. One
week later he
reapplied before a different District Court Judge who properly declined
to review the decision of the earlier Judge, there being
no change in circumstances.


[8]    Mr Poole now appeals against the refusal to grant him bail.


Decision


[9]    What would appear
on its face to be a hopeless application is given some
teeth by the fact that Mr Poole is two weeks short of his nineteenth birthday.
That
accordingly means that s 15 of the Bail Act 2000 applies, and Mr Poole is entitled to
a grant of bail unless the Court is:

       of the opinion no other course [other than imprisonment] is desirable, having
       regard to all the circumstances.

[10]
  In support of today's application an affidavit is filed by Mr Poole's mother.
She says that Mr Poole can be bailed to her address,
which is rural and 20 kilometres
from Pahiatua. Mrs Poole says that she will endeavour to ensure he keeps to a
curfew, and will undertake
to phone the police if she is aware at any time that
Hayden has breached his curfew. She is understandably concerned that Mr Poole
is
in prison.


[11]   It is to be noted that Mr Poole was bailed originally to his parents' address,
but this is a different address,
his mother having moved from town to the rural
property.    Mr Webber rightly observes that aspects of Mrs Poole's affidavit are
troubling in that she speaks in terms of there "apparently
having been breaches"
when in fact Mr Poole was bailed to live with her.


[12]   Mr Daniels made several valid points in support.
First Mr Poole is young and
has had quite a wake-up call. It is not a good environment for a young man to be in.
Second, the maximum
penalty on any one of the offices arising from that night to
which he pleaded guilty is three months. That on the other charges will
not be
before February next year, so the pre-trial custody will be the equivalent of a twelve

to thirteen month sentence. The proposed
rural setting with a twenty-four hour
curfew is likely to be more effective and the current breaches are not serious in
themselves


[13]   In response Mr Webber observed that there can be little confidence that
Mr Poole will keep to a curfew. He plainly has friends
in the area, with cars, and his
latest breach occurred in that circumstance, and while bailed to his mother's address.
Other young
men, cars, and alcohol produced a very dangerous event and the risk of
a repeat is plain. Pahiatua does not have a police station
open at night so the
incentive to comply is reduced. Finally, Mr Webber noted the community detention
breaches each carry a maximum
penalty of a year and some custodial response is
very likely.


[14]   There is merit in both positions, but the circumstances have
left me of the
view that no other course than imprisonment is possible. This is an appeal from an
exercise of discretion, but I have
expressed it that way to indicate I am in agreement
with the District Court.


[15]   If there were just an isolated breach one would
readily accede to giving
Mr Poole another chance. However, there are two bail breaches in a short period.
The second involves exactly
the same context as led to the very dangerous offending
or the night of 27/28 July. Further, these events followed upon charges of
theft from
a car, boy racer type activity and unlawfully taking a car. Having been sentenced to
community detention on that, Mr Poole
again in a short time frame breached that
detention three times.


[16]   The rural situation does not give me confidence. Mr Poole
has been bailed
previously to his mother's care, and I cannot now see any basis to expect a greater
capacity to control.


[17] 
 In my view there needs to be some real evidence Mr Poole has changed his
approach, and has awareness of the dangers of alcohol and
cards, before one could
have any confidence he does not pose an unacceptable risk. To illustrate the nature
of that risk I provide
some detail of the offending of 28/29 July.

[18]      It is said that first Mr Poole and his co-offenders broke into the back of
a
dairy and stole items. They then went to a residential property acquired a garage
door opener from a vehicle, opened the garage
and went inside. They stole items
from the garage.


[19]      Next, they went on to another residential property and stole the car
from that
property. The offenders then moved from Masterton to the nearby township of
Carterton. Again they went on to a residential
address and entered an open garage
and stole items from the garage. Having consumed cannabis and drunk alcohol,
Mr Poole got back
into the stolen vehicle and drove it back to Masterton. He went to
a service station and stole $20 of petrol. Then he drove off.


[20]      The next phase is that he drove the stolen vehicle through a fence and carried
on. The police eventually found him and
activated their lights. Rather than stop he
drove off at speed. He was driving in excess of 100 kilometres per hour in a
50 kilometre
area. At one intersection he drove straight into the back of another car
that was stationary at the intersection waiting. Again Mr
Poole did not stop but
drove on towards Masterton on the open road. By this time the road was busy, it
being some time between 8.30
and 9.00 a.m. People were heading to work and
school children were around. The pursuit reached speeds of 120 kilometres per hour.
Eventually Mr Poole drove into
another vehicle that was waiting at an intersection.
Again he did not stop but drove on. He then stopped his vehicle and ran off
from it.
When eventually arrested he had a level of 581 micrograms of alcohol per litre of
breath.

[21]   The appeal is dismissed.
As discussed at the hearing, the case for deferring
sentencing on at least the community detention breaches, and probably the other
charges, is not in my view compelling. It would be better to get those on and have a
determination. Whatever occurs then may well
provide a change of circumstance
but that cannot be known until the process is undertaken. I make that point just to
highlight this
decision applies to the situation as it presently stands.




                                             __________________________________
                                                                           Simon France J


Solicitors:
K Daniels, Solicitor, PO
Box 364, Masterton, email: [e-mail]
J M Webber, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [e-mail]