W v Police HC Hamilton CRI 2009-419-86 [2009] NZHC 2511 (15 December 2009)

Last Updated: 15 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI 2009-419-000086}

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 15 December 2009

Appearances: D Hall (on instructions from N Brodnax) for the Appellant

P V Cornege for the Respondent

Judgment: 15 December 2009

_{[ORAL] JUDGMENT OF WYLIE J}

Solicitors:

N Brodnax, P O Box 14 155, Hamilton

Crown Solicitor, P O Box 19 173, Hamilton

W V NEW ZEALAND POLICE HC HAM CRI 2009-419-000086 15 December 2009

[1] The appellant, Mr W , appeals against a refusal to grant bail by Judge

M L S F Burnett in the District Court at Hamilton on 25 November 2009.

Charges

[2] Mr W faced two charges – first, male assaults female pursuant to s 194(b) of the Crimes Act 1961 and secondly, wilful damage pursuant to s 11(1)(a) of the Summary Offences Act 1981. The maximum penalty in relation to the male assaults female charge is one of 2 years’ imprisonment. The maximum penalty in relation to the wilful damage charge is one of 3 months’ imprisonment and/or a

$2,000 fine. Mr W has pleaded guilty to both charges. He is due to be sentenced in the District Court on 18 January 2010.

Summary of facts

[3] The summary of facts to which Mr W has pleaded guilty records that he and the victim have three children together. The youngest child was born in June

2009. At approximately 8.00pm on Friday 10 July 2009, Mr W was at his home address. The family were in the lounge having dinner together. A verbal argument developed between Mr W and the victim and as a result, Mr W threatened to damage the victim’s stereo player. Mr W left the lounge area and went into the victim’s bedroom where he carried out his threat by smashing the victim’s stereo player. It was valued at $150. The victim picked up her youngest child – then a three week old baby – and held him in her arms while she went into the hallway to telephone the Police. Mr W became angry and began swinging wildly. He took the telephone from the victim who then sought refuge with other family members in the lounge. Mr W came into the lounge and without warning, struck the victim in the left eye with a closed fist. The force of the punch caused the victim to fall to the ground and drop the child who landed on the floor. As a result of the assault, the victim suffered bruising and blurred vision to her eye. The child was not injured. Mr W left the address prior to the arrival of the Police. When later located by the Police, he admitted the facts, and as I have noted, subsequently pleaded guilty.

District Court hearing

[4] At the hearing before Her Honour on 25 November 2009, Mr W sought bail.

[5] It was common ground that s 13 of the Bail Act 2000 applied and that the onus was on Mr W to show cause why bail should be granted. Judge Burnett recorded that she was required to take into account the provisions of s 8 of the Bail Act, and to consider whether or not Mr W was likely to receive a sentence of imprisonment.

[6] Her Honour then reviewed the circumstances and Mr W ’s criminal history. She noted that he had been sentenced for a short term of imprisonment in July 2009 for assaulting a Police officer and for obstructing the Police and that he had not been complying with his release conditions. She also noted that he breached his bail conditions in relation to the matter to which he has pleaded guilty. She considered that Mr W had demonstrated disregard for the Court orders and assessed him as being a flight risk. Her Honour noted that Mr W has a number of convictions for wilful damage and also a conviction for male assaults female. She considered that if he were to be granted bail, Mr W would not comply with his bail conditions and that there was a risk that he would fail to attend Court. Further, she considered that it is likely that a sentence of imprisonment will be imposed.

The appeal

[7] Mr Hall appears today as agent for Ms Brodnax who was unavailable. I am grateful to him for appearing at short notice. Further, he had prepared helpful submissions summarising the grounds of appeal.

[8] In essence, Mr Hall submitted that Judge Burnett thought that a prison sentence was practically inevitable and that she saw this as justification for the remand in custody prior to sentencing. Mr Hall also submitted that the Probation Services opposed bail and advised Her Honour that the papers in relation to another breach were at the time being prepared. He submitted that that allegation had not

been the subject of a formulated charge and that Mr W had been deprived of the opportunity to respond.

[9] Mr Cornege appearing for the Crown noted s 13(2) of the Act. He submitted that Her Honour was required to assess whether or not a sentence of imprisonment was likely and that her assessment was beyond reproach. He noted Mr W ’s criminal record and in particular observed the number of convictions and the convictions for male assaults female. He also noted that the sentencing is to take place relatively quickly on 18 January 2010. He submitted that a short remand in custody is not inappropriate.

Analysis

[10] The starting point in this case is s 13. Mr W has pleaded guilty to the two charges and it follows that the Court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interest of justice in the particular case to do so. The onus is on Mr W to show cause why bail should be granted. When considering the interest of justice, the Court may, instead of the considerations in s 8, take into account the following considerations:

a) whether Mr W is likely to receive a sentence of imprisonment;

b) the likely time that will pass before Mr W is sentenced;

c) the personal circumstances of Mr W and his immediate family;

and

d) any other consideration the Court considers relevant.

[11] I accept that if Mr W is unlikely to receive a sentence of imprisonment, that must count against him being remanded in custody prior to the sentencing.

[12] I have considered the Judge’s decision and Mr W ’s criminal record. I

also have the advantage of having seen a report prepared under s 38(2)(b) of the

Criminal Procedure (Mentally Impaired Persons) Act which has become available since Judge Burnett heard the matter. That report expresses the opinion that Mr W does not suffer from any major psychiatric disorder, and that he does not suffer from a mental order as outlined in s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. There is no recommendation for any medical disposal when the matter comes before the District Court for sentence.

[13] In the circumstances, I agree with Judge Burnett’s assessment that it is likely that Mr W will receive a sentence of imprisonment. That is only a preliminary assessment. I have not seen a pre-sentence report; nor do I know what else may be advanced at the sentence hearing. Nevertheless, given Mr W ’s criminal history, and given that his history includes various convictions for assault including male assaults female, in my judgment, a sentence of imprisonment must be likely.

[14] I do not know whether or not the alleged breach of bail has been taken further. I do not pay any attention to that matter and I have not taken it into account.

[15] The sentence date is not far away. It is unfortunate that Mr W will be remanded in custody over the Christmas period, but considering the various matters under ss 7, 8 and 13 of the Act, I consider that Mr W should not be granted bail. Amongst other things, I take into account the fact that Mr W has been convicted of 13 offences while on remand on bail. He also has three convictions for failing to answer District Court bail, and he has breached the conditions of his bail on a number of occasions. Clearly Court orders count for little with Mr W . There must be a risk that he will fail to appear in Court on the date to which he has been remanded were he to be granted bail. There is also a risk that he may further offend were he to be granted bail. I am also mindful of the victim’s position. She has apparently reconciled with Mr W , but she is not opposed to bail being granted. That is not uncommon with victims of domestic violence. Nevertheless, given her position, and the position of the young children in the household, in my view it is appropriate that Mr W should remand in custody until he is sentenced. That view is reinforced by reference to his criminal background, and in particular to his history of convictions involving assault.

[16] The appeal is dismissed and Mr W is remanded in custody until

18 January 2010.

Wylie J