DEAN V DEPT OF CORRECTIONS HC AK CIV-2009-404-000057 [2009] NZHC 245 (4 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                            CIV-2009-404-000057



                             VINCENT RICARDO DEAN
                                    Applicant



                          
                       v



                       DEPARTMENT OF CORRECTIONS
                               Respondent



Hearing:
      3 March 2009

Appearances: H Kim for Appellant
             R S Reed for Respondent

Judgment:      4 March 2009 at 10:00 am


                      JUDGMENT OF COURTNEY J
              ON APPEAL AGAINST REFUSAL TO GRANT BAIL




                       
  This judgment was delivered by Justice Courtney
                                   on 4 March 2009 at 10:00 am
               
             pursuant to R 11.5 of the High Court Rules

                                   Registrar / Deputy Registrar
       
                           Date.............................




Solicitors:    Meredith Connell, P O Box 2213, Auckland
       
       Fax: [phone] ­ R Reed

Counsel:       H Kim, P O Box 76-538, Manukau City
               Fax: [phone]



DEAN
V DEPT OF CORRECTIONS HC AK CIV-2009-404-000057 4 March 2009

[1]    Mr Dean currently faces one charge of breach of intensive supervision,
an
offence that carries a maximum penalty of six months imprisonment or a $1,500
fine. He was declined bail in the District Court
on 25 February 2009 and now
appeals that decision.


[2]    The background to the offence requires a little detail.      In October
2008
Mr Dean was sentenced to the term of 12 months intensive supervision on a charge
of assault with intent to injure. Following
that sentence:


       ·       Mr Dean failed to report to the community Probation Centre as
               required on 28 November
2008.          A warrant was issued and he
               subsequently appeared on 13 December 2008 on the charge of
           
   breaching intensive supervision. He was remanded on bail to 17
               December 2008. His bail conditions included residing
at a particular
               address and reporting to the Probation Officer as directed.


       ·       Mr Dean appeared on 17
December 2008 as required. His bail was
               varied by consent and he was remanded to 14 January 2009.


       ·     
 Mr Dean appeared on 14 January 2009 and, considering it desirable to
               monitor his progress, he was remanded to 18
February 2009.


       ·       Mr Dean failed to appear on 18 February 2009. The Probation Officer
               indicated that
the Probation Service had intended to seek a conviction
               and discharge by way of penalty in the event that Mr Dean
had
               appeared and pleaded guilty that day. However, since he had not
               appeared a warrant was issued.


       ·       Mr Dean was brought before Judge Andree-Wiltens on 25 February
               2009. The Probation Officer at court
on that day sought a conviction
               and discharge together with a warning on the basis that Mr Dean had
             
 attended the MIRP (Medium Intensive Rehabilitation Programme)
               which began 23 February 2009.          As a result
of that indication
               Mr Dean pleaded guilty to the charge.           However, despite the

               Probation
Service's request for a conviction and discharge the Judge
               refused bail and remanded Mr Dean in custody for sentence
on the
               charge of breaching the intensive supervision order on 24 March
               2009.


[3]    Mr Dean appeals
the refusal to grant bail on the basis that the Judge erred in
failing to take account of:


       ·       Mr Dean's age (19);


       ·       Change in his circumstances;


       ·       The low likelihood of a custodial sentence being imposed; and


  
    ·       The effects on Mr Dean if he were to be remanded in custody.


[4]    Having pleaded guilty, Mr Dean's bail application fell to be considered under
s 13 Bail Act 2000 which precludes
the granting of bail unless the Court is satisfied
on the balance of probabilities that it would be in the interests of justice to
do so.
The Judge did not refer to any of the factors identified in s 13(3) that the Court may
take into account in considering the
interests of justice criteria under s 13(1). These
include whether the defendant is likely to receive a sentence of imprisonment,
the
personal circumstances of the defendant and any other consideration the Court
considers relevant.


[5]    In this case, there
were two relevant pieces of information avl available to the
Judge which should have been taken into account. Frst, the Probation
Service's
position was that a conviction and discharge would be appropriate so as to enable the
sentence of intensive supervision
to be continued. Second, Mr Dean had been
accepted into and had commenced the MIRP programme. A condition of that
programme is that
if a participant fails to attend five or more sessions he or she is
exited from the programme and regarded as having been in breach
of an order of the
Court. If Mr Dean is in custody until 25 March 2009 then he will be in breach of the
MIRP programme.

[6]   
Ms Reed, for the Crown, confirmed that the Probation Service was not
intending to cancel the intensive supervision sentence though
she could not confirm
whether it would still be supporting a discharge without conviction, the Probation
Officer concerned having
changed. On the likelihood of a custodial sentence, Ms
Reed also acknowledged the possibility that no term of imprisonment would
be
imposed.


[7]    Mr Dean's participation in the MIRP programme is clearly an important
aspect of his rehabilitation and rehabilitation
was, clearly, at the forefront of Judge
Johns' mind when she imposed the sentence of intensive supervision.                  It is
important, where possible, that the Court supports efforts towards rehabilitation.


[8]    As against the efforts Mr Dean is making
towards rehabilitation is his
abysmal history of offending and breaching court orders. At age 19 he has some 15
previous convictions.
Included in these is his failure to complete community work;
of 350 hours of community work required to be undertaken he has completed
only
33 hours. He has a history of failing to answer bail, failing to appear and offending
while on bail. His history gives me very
little confidence that he will improve his
behaviour. On the other hand, I suspect that in getting Mr Dean to change his
behaviour,
completing the MIRP programme is likely to be more effective than
another month in custody.


[9]    By the narrowest of margins
I allow the appeal. However, this is a last chance
for Mr Dean. In the event of any further breach of court orders he cannot expect
further indulgence from the Court.




                                                             ____________________


     
                                                       P Courtney J