Police v Johnson HC AK CRI 2009-488-000050 [2009] NZHC 2079 (6 November 2009)

Last Updated: 1 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-488-000050}

NEW ZEALAND POLICE

v

J

Hearing: 6 November 2009

Appearances: S McColgan for Crown

C Wilkinson-Smith for Mr J

Judgment: 6 November 2009

Reasons: 10 November 2009

_{JUDGMENT OF WHITE J}

This judgment was delivered by me on 10 November 2009 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ......................

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Auckland 1140

C B Wilkinson-Smith, City Chambers, Level 1, General Building, 29 Shortland Street, Auckland 1010

NZ POLICE V J HC AK CRI-2009-488-000050 6 November 2009

[1] These are the reasons for the judgment given on Friday, 6 November 2009.

[2] Mr J was convicted and sentenced in the District Court at Whangarei on 5 October 2009 on the following charges:

• Driving while disqualified;

• Receiving property (over $1000);

• Procuring/possessing methamphetamine/amphetamine;

• Failing to answer District Court bail;

• Possessing equipment, material with intent;

• Possessing knife in public place (summary offence);

• Producing/manufacturing/distributing cannabis; and

• Breach of community work.

[3] He was sentenced to a period of six months’ home detention, i.e. until 5 April

2010. The sentence is subject to the standard conditions set out in s 80C of the Sentencing Act 2002. I was advised that in terms of s 80C(2)(d) he had been required to submit to electronic monitoring.

[4] On 15 October 2009 Mr J was arrested and remanded in custody in respect of three serious charges under the Misuse of Drugs Act 1975, namely:

• Offer to supply class A controlled drug (maximum penalty life imprisonment);

• Offer to sell a class C controlled drug (maximum penalty 8 years imprisonment); and
• Offer to sell a class B controlled drug (maximum penalty 14 years imprisonment)

[5] These three charges relate to alleged offending which occurred before Mr

J was sentenced to home detention in the District Court on 5 October 2009. [6] Mr J has a list of previous convictions for:

• Failure to answer District Court bail;

• Driving while licence suspended or revoked (2);

• Theft of property (under $500);

• Possessing needle/syringe, etc. for cannabis; and

• Common assault.

[7] Because of Mr J ’s previous conviction for manufacturing cannabis oil, his application for bail must now be considered by the High Court: Bail Act 2000, s 16.

[8] The grounds for Mr J ’s application for bail, supported by his affidavit of 5 November 2009 and submissions from his counsel, were:

a) He is 21 years old.

b) He wishes to continue serving his sentence of home detention and to undertake drug rehabilitation counselling through the Salvation Army Bridge Programme. He had his first appointment with the Northland Bridge Programme on 5 or 6 November 2009 as the first of three appointments to assess his suitability for the eight week intensive programme. He understands that the only way he can be assessed is if he is on bail as the Bridge Programme does not visit Ngawha Prison to conduct assessments.

c) The home detention conditions, especially the electronic monitoring requirement, mean that in terms of s 8(1)(a) of the Bail Act, there is little risk that he would fail to appear in Court on the date to which he has been remanded, that he would interfere with witnesses or evidence, or that he would offend while on bail.

d) While Mr J has been charged with serious offences, his current intention is to defend the charges.

e) If he is convicted on the charges, which relate to offending prior to his

5 October 2009 District Court conviction and home detention sentence, there is a possibility that his home detention sentence might be extended to 12 months bearing in mind the quantity of drugs involved and the decision of the Court of Appeal in R v Hill [2008] 23

CRNZ 744.

f) His previous convictions, including those for breaching Court orders and driving while suspended or disqualified, did not dissuade the District Court Judge from imposing a sentence of home detention.

[9] The Crown opposed bail on the grounds that:

a) Mr J ’s previous convictions for breach of Court bail meant that there were risks in terms of s 8(1)(a);

b) His offending was part of an ongoing course of conduct;

c) Serious offences were involved and the strength of the evidence indicated that he would probably be convicted;

d) His past record suggested bail should not be granted;

e) The decision in Hill should be distinguished.

[10] In reply, Mr J ’s counsel disputed that a course of conduct was involved and that the decision in Hill should be distinguished.

[11] In R v Hill the appellant had been convicted on one count of possession of methamphetamine for supply (6.3 grams with a street value of approximately $6300) and sentenced to a term of two years three months’ imprisonment. The Court of Appeal quashed the prison sentence and substituted a sentence of 12 months’ home detention and 200 hours’ community work. The Court indicated that Hill was the type of case where a sentence of home detention was appropriate to achieve the social and individual benefits that the sentence offered.

[12] As the restrictions under ss 10 and 12 of the Bail Act were inapplicable in Mr J ’s case, it was necessary to apply ss 7(5) and 8. Mr J should be released by the Court on reasonable terms and conditions unless the Court was satisfied that there was just cause for continued detention. In considering whether there was just cause for continued detention the Court was required to take into account the risks referred to in s 8(1) and the factors in s 8(2).

[13] Here, where no explanation was provided as to why Mr J was not charged in October 2009 with all the offences then known to the Police, I was not prepared to assume, in light of the quantity of drugs involved and the decision in Hill, that, if convicted, a longer period of home detention might not be imposed.

[14] I accepted that the standard conditions for Mr J ’s home detention sentence, especially with the electronic monitoring requirement, should provide sufficient protection to avoid the risks under s 8(1). While in terms of s 8(2) the further offences were serious and carried significant maximum penalties and while Mr J did have a list of previous convictions which give cause for concern, the further offences were known to the Police at the time of the District Court sentencing on 5 October 2009, and the District Court Judge was satisfied that, notwithstanding the previous convictions, home detention was the appropriate sentence then. The s 8(2) factors weighed against bail being granted, but in the circumstances of this case they should not, in my view, have deprived Mr J of the opportunity of completing his home detention sentence and being released on bail for that purpose.

Mr J would also have the chance of undertaking drug rehabilitation counselling while serving his home detention sentence.

[15] I therefore granted Mr J bail for the remaining period of his home detention sentence with its standard conditions, which include electronic monitoring. A date is to be allocated in the High Court at Whangarei prior to 5 April 2010, when the home detention sentence ends, for the questions of the grant and conditions of Mr

_{J ’s bail to be reviewed then.}

D J White J