BURCHELL V NEW ZEALAND POLICE HC AK CRI-2009-404-000030 [2009] NZHC 142 (17 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                              CRI-2009-404-000030



                       LLEWELLYN WILLIAM BURCHELL
                                 Appellant



                             
                 v



                               NEW ZEALAND POLICE
                                    Respondent



Hearing:
       17 February 2009

Appearances: L Burchell appearing in Person
             NF Flannigan for Respondent

Judgment:       17
February 2009


                               JUDGMENT OF ASHER J




Solicitors:
L Burchell, C/- Auckland Central Remand Prison,
Auckland.
Meredith Connell, PO Box 2213 Auckland



BURCHELL V NEW ZEALAND POLICE HC AK CRI-2009-404-000030 17 February 2009

Introduction


[1]    On 28 January 2009 Mr Burchell was found guilty after a trial before a Judge
alone, of one count of injuring Senior Constable
Penelope Rustbatch with intent to
injure her. At the conclusion of the hearing he applied for bail. The District Court
Judge who
had heard the trial declined that application. This is an appeal brought by
Mr Burchell against that decision to decline bail.


[2]    Mr Burchell appears for himself. Mr Weir previously represented him. At
the outset of the hearing Mr Weir through other counsel
sought leave to withdraw. I
inquired of Mr Burchell whether he wished to instruct other counsel and adjourn the
appeal or whether
he wished to proceed today. He strongly expressed the wish to
proceed today because his mother is only in New Zealand for a short
time and he
wants the maximum time with her possible before she leaves New Zealand. He has
therefore made submissions on his own
behalf.


Background


[3]    The summary of facts states that as a consequence of a dispute arising
between Mr Burchell and other
persons at his place of work, Senior Constable
Penelope Rustbatch, who was the Sunnynook Community Constable, approached
him. There
was an issue as to whether he was holding some documents which did
not belong to him.


[4]    At a certain point Mr Burchell was
sitting in his vehicle. The Constable
reached into the vehicle to take the keys from the ignition, which had been started by
Mr Burchell.
  Mr Burchell grabbed the Constable's hand and squeezed it.           He
refused to let it go. The Constable then placed a handcuff
upon him and stated that
he was under arrest for assault. He was allowed then to make a telephone call and
indicated he would co-operate
with the Constable. He got out of the vehicle. Once
out of the vehicle when the Constable went to handcuff him again, Mr Burchell
grabbed her by the throat. He marched her backwards about five meters while
holding her throat. She fell to the ground. He knelt
over her still holding on to her
throat, and then after a period released her. Mr Burchell was then sprayed by the

Constable, but
was approaching her again when another police officer who was in
the area came to the Constable's assistance and completed the arrest.
The Constable
suffered bruising to her neck, grazes to her elbow, back and left side of her chest,
and soreness. I set out the facts
in some detail because they are relevant to the issue
of the type and duration of any sentence.


[5]    In her decision on the bail
application the learned Judge observed that the
application was under s 13 of the Bail Act 2000, and that the onus was on
Mr Burchell
to satisfy the Court that on the balance of probabilities it would be in
the interests of justice that bail be granted. She stated
that in her view a term of
imprisonment was the only starting point she could adopt for the sentence. She
considered the length of
time that would pass before the sentence, which is set down
on 25 March 2009. She also considered the possibility of prejudice to
Mr Burchell
being able to prepare for sentence, although she referred to the fact that that was not
a relevant consideration.


[6]
   She ordered a pre-sentence report.       She also ordered a home detention
appendix, but stated that that was no indication of the sentence she might impose but
was
simply so that "all the information is before the Court". She also asked for a
victim impact statement.


[7]    She noted in her
judgment after she had declined bail that it had been brought
to her attention that Mr Burchell's elderly mother was in New Zealand
and would
like to see her son, and that that was a circumstance that should be taken into
account. She was not prepared to reconsider
her decision on that point given that a
verdict of guilty after the trial should have been known to Mr Burchell as a
possibility.
She also noted the possibility of affidavit evidence being put to the
Court from Mrs Burchell.


Mr Burchell's submissions


[8]
   Mr Burchell in his submissions initially focused on the position of his
mother. His mother, Mrs Burchell, has now filed an affidavit.
She is a South
African citizen and is a visitor to New Zealand. She has been here since December

and her visitor's permit will
expire on 10 March 2009. She is not in good health and
she says that this will probably be her last visit to see her son as she is
73 years of
age, has had open heart surgery and still suffers from angina and high blood
pressure.


[9]    Mr Burchell's former
counsel, Mr Weir, had also filed a submission with the
Court in which he emphasised the fact that home detention was a possibility
for
Mr Burchell, and that the possibility of there not being an ultimate term of
imprisonment imposed was not properly taken into
account by the Judge.


[10]   In his submissions Mr Burchell also stated that he was innocent of the
charges of which he had been
convicted. He stated that he had been victimised by
the system and by the police. He spoke very strongly about what he said were
serious injustices perpetrated against him through 2007 and 2008.


Approach


[11]   As Judge Kiernan indicated, the test under
s 13(1) when a defendant has been
found guilty is that the Court will 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 is on the defendant to show cause why bail
should be granted.


[12]   In approaching this appeal I take into account the statement in B v Police
(No. 2)  [2000] 1 NZLR 31 (CA), that an appellant must establish that the refusal of
bail is contrary to principle or that the Judge failed to consider all
relevant matters or
took into account irrelevant matters or that the decision was plainly wrong. I also
take into account the statement
by the Court of Appeal in Austin Nichols & Co. Inc v
Stichting Lodestar [2008] 2 NZLR 141, that a Court must in the end apply its
own
judgment in relation to the exercise of a discretion of this type. It cannot abdicate
the responsibility of making its own assessment
of the merits of the application.

[13]   Section 13 states:

       13      Exercise of discretion when considering bail pending
sentencing

       (1)     If a defendant is found guilty or if a defendant pleads guilty, 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 defendant 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)    whether
the defendant is likely to receive a sentence of
                      imprisonment:

               (b)    the likely length of
time that will pass before the defendant
                      is sentenced:

               (c)    the personal circumstances of
the defendant and the
                      defendant's immediate family:

               (d)    any other consideration that the
court considers relevant.

While the section says that the Court "may" take into account the matters in
s13(3)(a)-(c) "instead of
the considerations" in s 8, there is no doubt that the
considerations in s 8 are not excluded and remain relevant. When they arise
they
should be considered. There is also an ability to consider any other relevant matter
under s 8(3)(d).


This appeal


[14] 
 The first matter to be considered is whether Mr Burchell is likely to receive a
sentence of imprisonment. The District Court Judge
stated that she thought this is
what he faced as a starting point.


[15]   The maximum sentence available is five years' imprisonment.
The offence
contained in s 189(2) of the Crimes Act 1961 is one of a series of offences of
graduating seriousness that relate to
assault. It can be said that within the context of
this particular charge, which does not involve allegations of intent to cause
grievous
bodily harm or any intent to wound involved in more serious Crimes Act offences,

that this is a moderately serious instance
of the offending encompassed by s 189(2).
What was involved was an assault to the throat and a person being pushed to the
ground
in circumstances where there were injuries.


[16]    I accept Mr Burchell's point that the Crown's oral submission that the
Constable
suffered broken ribs is not supported by the summary of facts.
Nevertheless, injuries of some moment were suffered by the police
officer. The fact
that it was a police officer that was assaulted will be an aggravating factor and will
add to the starting point.


[17]    It would be wrong in this bail appeal to try and second-guess in any way the
sort of sentence that might be appropriate.
It has to be said, however, that the
statement of Judge Kiernan that a term of imprisonment would be the starting point
on sentence
appears to be correct. That starting point might well exceed two years'
imprisonment, although that will be a matter for the sentencing
Judge.


[18]    If the sentence reached after adjustment for aggravating and mitigating
factors was two years' imprisonment or less
the option of a sentence of home
detention would be available to the Judge.        The Judge clearly recognised this
possibility
when she ordered a home detention appendix to the pre-sentence report.
However, it would not be correct to take too much from this. Where home detention
might be a possibility, even a faint
possibility, it is appropriate to order such an
appendix. A Judge in doing so is not in any way binding the Court to a particular
sentence. It is simply a precaution so that in the interests of justice all possible
submissions can be made and considered, and
the Court has a full range of options
available to it.


[19]    Undoubtedly the possibility of home detention is a relevant factor
in a Court
considering its discretion in the interests of justice under s 13. However, the degree
of likelihood of home detention
must be a factor that is taken into account. The fact
that home detention might be a possibility does not mean that the discretion
should
be exercised in a defendant's favour. It is just one of a number of relevant factors.

[20]   Here, it cannot be said that
home detention will be out of the question in the
sentencing process. That will be a matter for the sentencing Judge. It is the case,
however, that home detention may not be the ultimate sentence, as the sentence of
imprisonment that may be imposed may well be in
excess of two years'
imprisonment, and home detention will not therefore be an available sentence.
Further, there are a number of
features which indicate that Mr Burchell has difficulty
in observing Court directions.


[21]   First, he was denied bail during
the January trial on the basis of a number of
failures to appear in accordance with directions. An explanation that he gave for one
of his non-attendances was ultimately not accepted by the Judge after she had seen
video evidence of when he had come in and out
of Court.


[22]   Secondly, Mr Burchell does not accept in the slightest the convictions against
him on this occasion, or indeed
on earlier occasions, and has a very strong sense that
an injustice has been perpetrated against him.


[23]   Thirdly, he committed
the assault while on bail on charges of threatening to
kill, making a false statement, common assault and wilful damage.


[24] 
 These three matters might all be regarded as indicating that Mr Burchell is
not suited to home detention.


[25]   The pressing
matter that concerns Mr Burchell most is his ability to see his
mother. This is a relevant factor and personal circumstances are
specifically referred
to in s 13(3)(c). This Court has more information available to it than was before the
District Court. It now
has the affidavit that I have referred to from Mrs Burchell.
Nevertheless, the Judge did have the assertion of Mrs Burchell's presence
in New
Zealand put to her and it did not persuade her to reconsider her decision. I do not
consider Mrs Burchell's availability a
matter of great significance when bail is
considered in the overview. She has been in New Zealand since December and
Mr Burchell
presumably has seen her in the period up until the trial in late
January 2009. She may still see him in prison. In itself, it is
not a persuasive
circumstance.

[26]     In considering the District Court Judge's exercise of her discretion it is also
necessary
where appropriate to consider s 8 of the Bail Act 2000, and the three risk
factors in s 8(1).


[27]     In relation to the risk
of non-appearance. Mr Burchell does not have a history
of seriously absconding while on bail, but he does have a history of failures
to appear
on time and to observe the directions of the Court. I have already referred to
Judge Kiernan's decision to hold him in
custody for part of the trial, which was
triggered by various failures in this regard on his part. In relation to the risk of
Mr
Burchell offending while on bail, the offences in respect of which he has been
convicted and awaits sentence took place while Mr
Burchell was on bail in relation
to other charges, as noted at [21] above. Those factors, and Mr Burchell's strong
rejection of all
his convictions, and his belief that he has been seriously victimised
by New Zealand authorities, all mean that the volatile situation could give rise to
further offences if he is on bail.


Conclusion


[28]
    I do not consider that the District Court Judge made any error of principle or
reasoning in her decision. Indeed, for the reasons
that I have set out I consider that
her decision was correct. For the reasons given, Mr Burchell has not discharged the
onus on him
under s 13 to show on the balance of probabilities that it would be in the
interests of justice for him to have bail.


Result


[29]     The appeal is dismissed.




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