RASTRICK V POLICE HC CHCH CRI 2009-409-000032 [2009] NZHC 269 (5 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                                CRI 2009-409-000032



                            DYLAN JAMIE RASTRICK
                                   Appellant



                            
              v



                                       POLICE
                                      Respondent



Hearing:   
    5 March 2009

Counsel:        R Peters for Appellant
                C J Boshier for Respondent

Judgment:       5 March 2009


                           JUDGMENT OF FOGARTY J



[1]      This is an appeal against two refusals of bail, one of Judge Farish
and then
subsequently by Judge Crosbie, both analyses proceed on the basis that s 13 of the
Bail Act 2000 applies as the appellant
has pleaded guilty to a charge of reckless
driving. However, the appellant is 19 years of age and therefore s 15 applies.


[2] 
    As this Court has had occasion to say on a number of times, where s 15
applies the analysis starts with s 15, it is not a clip
on, and accordingly it was an
error of law for the two District Court Judges not to start with s 15 let alone not refer
to it at
all.




RASTRICK V POLICE HC CHCH CRI 2009-409-000032 5 March 2009

[3]    In fairness to them, it would appear likely that counsel
for the defendant and
also the Police Sergeant for the informant did not draw to the Judges' attention the
application of s 15. That
leaves me free to consider the matter afresh and I do.


[4]    Section 15 is subject to s 142(4A) of the Criminal Justice Act:

       142      Special provisions as to young persons remanded or committed
       for trial or sentence

       ...

       (4A)
   Despite section 15 of the Bail Act 2000, the court may in any case
               direct that the person be detained in a prison
if in its opinion no other
               course is desirable, having regard to all the circumstances.

       ...

[5]    Focussing
on the criteria in that section the question I ask myself is: can I be
of the opinion that this young man should be detained ina
prison because no other
course is desirable having regard to all the circumstances?


[6]    He will be sentenced later this month,
on 23 March. That is approximately
three weeks time. He has been in prison since 8 February and the alternative course
is that he
be transported to Wanaka and granted bail to reside with his mother and
step-father there and then brought back to Christchurch for
sentencing.


[7]    The conduct which he has pleaded guilty to was described by Judge Farish in
the first paragraph as "absolutely
appalling". I set out her summary of it appear in
the second part of paragraph [2] of her notes:

       ... The driving on 8 January
was absolutely appalling and you are very, very
       fortunate indeed that you did not kill anyone, given that you were driving
       186 kilometres an hour in a 50k area in the evening and you turned your
       lights off trying to evade the Police.

[8]
   It is conduct like this which kills people. Reading both decisions I suspect
although neither Judge said so, that they were both
of the view that this young man
needed an immediate short sharp shock following his plea of guilty to bring home to
him the culpability
of his behaviour. They are in that sense anticipating some type
of full time custodial sentence. Indeed, that was averted to by Judge
Farish in the

balance of her decision though her decision was strictly based on the risk of
offending while on bail.


[9]    In
that regard the risk of offending while on bail does not demand that bail be
refused and as I have occasioned to repeat it cannot
be used where s 15 applies, to
divert the Court's mind away from the s 15 criteria. That was an aside.


[10]   Turning back to subsection
(4), having reviewed these facts, it is my opinion
that no other course than that this young man be detained in prison until 23 March
is
desirable having regard to the culpability of his conduct. It will, of course, be a very
relevant consideration when he comes up for sentence that he has been detained
in
prison from 8 February to 23 March and it might be the view of the sentencing Judge
from that point that there is a basis for
a lesser form of detention thereafter.


[11]   For these reasons, and applying s 142(4A) of the Criminal Justice Act, the
appeal
is dismissed.




Solicitors:
R Peters, Christchurch, for Appellant
Raymond Donnelly & Co, Christchurch, for Respondent