TE MANGU TUPOU V NEW ZEALAND POLICE HC AK CRI 2009-404-230 [2009] NZHC 1218 (9 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                  CRI 2009-404-230



                               TE MANGU TUPOU



                                          v



                            NEW
ZEALAND POLICE



Hearing:       8 September 2009

Counsel:      K Jones for Appellant
              R Reed for Respondent

Judgment:
     9 September 2009


                        JUDGMENT OF SIMON FRANCE J
                              (Bail application)



[1]
   Mr Tupou appeals the refusal to grant him bail with an electronic monitoring
condition. Mr Tupou faces charges of aggravated burglary
and unlawfully getting
into a motor vehicle.


[2]    Mr Tupou is said to be a patched member of a local gang. He and some
associates
took someone's vehicle for the purposes of using it for later offending.
They then drove to the residence of a person who was specifically
targeted. They
broke into that person's shed and stole property from it. The police arrived on the
scene while this was happening.
Mr Tupou and his offenders got back into the
stolen vehicle. Mr Tupou was not the driver.        The vehicle reversed down the
driveway
at speed causing a police officer to have to take evasive action to avoid


TE MANGU TUPOU V NEW ZEALAND POLICE HC AK CRI 2009-404-230
9 September 2009

being hit.   The vehicle then sped off chased by the police.         It was through a
residential suburb and went
past a school where school children were playing at the
front gate. Eventually the car went over road spikes. The defendants tried
to carry
on, causing the car to veer into the path of oncoming traffic but fortunately no
accident occurred. Eventually the car stopped
and the offenders were arrested.


[3]    Mr Tupou has an extensive history of offending. However the seriousness of
the offending
has diminished in recent years. Mr Tupou's last term of imprisonment
was in 1994 for aggravated robbery. Since 2002 he has accumulated
twenty-one
convictions, all of which have been met with community based sanctions. There are
a number of offences of contravening
protection orders, breach of conditions of
supervision, and breach of community work. The bulk of the substantive offending
is assault
and possession of weapons.


[4]    When Mr Tupou first applied for bail it was declined. The Judge noted the
number of previous
breaches of Court's orders and considered there was a risk of
offending whilst on bail, even though there was no history of that.
The Judge noted
the number of convictions generally, the fact that the victim's were specifically
targeted, and that they continued
to hold fears for being targeted. Weighing these
factors bail was declined.     The matter came again before the Court this time
accompanied by approval for an electronic monitoring condition.           The relevant
address is that where Mr Tupou has been residing
with his partner of two years. It
was again declined.


[5]    In support of the application, Mr Jones submits that on the second
occasion
when bail was declined the Court erred in thinking that Mr Tupou had convictions
for breach of bail. However, although the
Court does use that expression in its
ruling, the Judge was clearly referring to the breaches of conditions of supervision,
of community
work, and of protection orders.


[6]    It is next submitted that undue weight was placed on the appellant's criminal
history, which
of itself is not said to be relevant to the bail decision. Standing alone
I agree that would be correct. However, as an indicia of
likelihood of re-offending

and seriousness of the risk it is always of assistance and can rightly be taken into
account.


[7]
   Finally it is submitted that there was insufficient material for the Court to
doubt the effectiveness of an electronic monitoring
condition. There was no history
of offending on bail and no realistic risk of Mr Tupou absconding. Likewise, the
risk of interference
with witnesses was reduced by the fact that Mr Tupou's
whereabouts would be monitored. It is noted that the breach of protection order, and
the male assaults female, previous convictions relate to a former partner who is now
living in Australia. The current partner is
aware of those charges and indeed is a
friend of the former partner. There has been no history of offending within the
current relationship.


[8]    The Court questioned Mr Jones concerning his present instructions over the
offending, given that objectively it seemed that
Mr Tupou had been caught red
handed. Strength of evidence is of course relevant to the perceived jeopardy, and the
incentives that
might operate on someone. Mr Jones advised that the defence is that
Mr Tupou was not present when the car was taken but was collected
and did not
realise its stolen nature. Further, he believed that they were going to the address for
legitimate debt collection of
some goods, and joined in in that capacity. Concerning
the offending that occurred once the police arrived, he was not the driver
and could
not do anything about it. Inherent in these present instructions is a denial of present
active membership or status in
the gang.


[9]    At the appeal hearing the Crown raised two matters that had arisen
subsequent to the District Court bail decision.


[10]   One of the matters was that the police had been called to the proposed
electronic monitoring bail address. They had been
called by Mr Tupou's partner
because an incident was developing in relation to some people (allegedly gang
members) who were visiting
the house. The context was said to be debt collecting. I
understand why a link is being drawn given the gang and debt collecting
connections, but consider that a situation where Mr Tupou's partner is making the

complaint, and the persons offering the concern
are not Mr Tupou, is not a situation
that can properly count against his bail application.


[11]    The second matter is of much
greater concern. Yesterday Mr Tupou was
further charged with aggravated robbery. The details at this stage are scant but the
date
of the alleged offending was 24 February 2009.            It is alleged that the
circumstances are ones of standover debt collection,
which is alleged to also be the
context of the present offending.


Decision


[12]     I do not accept that either Judge erred in
how the matter was approached.
Further, I consider the decisions reached were open.              The matter is not
straight-forward
and while there are aspects to Mr Tupou's situation that support
bail, there are also matters of concern.


[13]    Generally it
is a case where the context of the offending is not obvious. That
always makes it more difficult to assess the nature of the risks
that need
consideration. The offending has a brazenness to it that is troubling. Someone's car
is stolen just so it can be used to
transport the alleged offenders to an address. Then,
in relatively plain view, a shed is broken into and goods taken. The offenders
are
still doing this when police turn up. The accused proffers an explanation, through
counsel only, that on its face is barely credible.


[14]    Some explanation of the nature of this activity does however emerge with the
Crown allegation of debt collection. That
dimension also raises intimidation of
witnesses as a concern, and explains why the victims have expressed concerns for
their safety.


[15]    On the other hand bail with monitoring should reduce these risks, although by
no means remove them. The reality is that
Mr Tupou is still more able to organise
matters and call on assistance when not incarcerated. Conversely, it is important to
remind
oneself that he has a presumption of bail in his favour and the issue is
whether the risks can be managed.

[16]    In my view the
matter before the District Court was evenly balanced, and I
would have been reluctant to differ from the District Court's exercise
of discretion.
However, the information that further charges have been laid is a significant matter
which in my view puts the matter beyond doubt. It is of course very early,
and as
always only an allegation, but the alleged context is further standover tactics. Unless
those charges prove to be speculative
in nature and without apparent merit, I
consider bail would not be feasible. A man with Mr Tupou's history, and alleged
connections,
who is now allegedly involved in such activity presents a significant
threat of interference with justice and with witnesses. A one
off incident expands
into a more serious concern, and Mr Tupou presents a real risk that electronic
monitoring will insufficiently
control and deter.


[17]    The appeal is declined.




                                                             ________________________
                                                                         Simon France J

Solicitors:
K Jones, Barrister, PO Box 72
1092, Papakura, email: [e-mail]
R Reed, Meredith Connell, PO Box 2213, Shortland Street, Auckland
email: [e-mail]