M v Police HC Dunedin CRI-2009-412-2 [2009] NZHC 306 (12 March 2009)

Last Updated: 30 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

_{CRI-2009-412-000002}

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 12 March 2009

Counsel: Q Stratford for appellant

L Denton for respondent

Judgment: 12 March 2009

_{RESERVED JUDGMENT OF DOBSON J}

[1] This appeal was brought on behalf of an 18 year old man from a decision refusing him bail when he was remanded subsequent to the entry of convictions for theft, wilful damage and two breaches of conditions of community detention. The sentencing on those convictions is to occur in the Oamaru District Court on

25 March 2009, 13 days away. At the same time, Mr M is to be re- sentenced, on the application of the Department of Corrections, on four earlier convictions for which he was sentenced on 10 December 2008 to community detention. That application has been made because of his continual breaches of

_{community detention.}

M V NEW ZEALAND POLICE HC DUN CRI-2009-412-000002 12 March 2009

[2] The record of exchanges between District Court Judge O’Driscoll and counsel on the application for bail heard in the Dunedin District Court on

12 February 2009 suggests a focus by the Judge on the need for the appellant to pay reparation for the ankle bracelet that had been used to monitor the appellant, and which he had destroyed. The Judge indicated he would not consider bail until reparation of some $2,100 had been made, but that he would reconsider bail if and when such reparation was made.

[3] The notes of how the matter was dealt with make no reference to s 15 of the Bail Act 2000 (the Act). The terms of s 15(1) direct that where the Court is remanding a defendant over the age of 17 years but under the age of 20 years, it must release the defendant on bail or otherwise subject to such conditions as it thinks fit. It might be implied that the Judge’s approach to bail once convictions had been entered reflected the presumption against bail in s 13 of the Act. Because of the prospect that the decision against bail was influenced by the concern over reparation (which I accept would be an irrelevant consideration on a bail application), and also because of the absence of any acknowledgement of the influence of s 15 of the Act, the Police agreed with Mr Stratford’s submission that the appropriate course was to consider the case for bail de novo. I concur that that is the prudent means of dealing with the appeal.

[4] Notwithstanding the apparently mandatory terms of s 15(1) of the Act, it has to be applied having regard to s 142(4A) of the Criminal Justice Act 1985 which provides:

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] Counsel were agreed that the approach to be adopted to s 15 in light of this separate provision is accurately summarised in the decision in R v K HC AK CRI-

2006-404-140 16 May 2006 Baragwanath J. There the Judge reviewed the approach adopted in earlier bail appeals, concurring with the view that remand in custody in cases to which s 15 of the Act applies should occur where there is no “realistic practical alternative”. The judgment also endorsed an observation from an earlier High Court consideration of s 15 reflecting that the principal policy behind the

section meant that bail will be granted to youthful offenders in circumstances where the risk of re-offending might be the deciding factor against bail in the case of an adult.

[6] Mr M ’s criminal history and the circumstances of the most recent offending suggest very clearly that this is a young man out of control. He appears to have amassed some 15 convictions in about 10 months. On 10 December 2008 he was sentenced to three months’ community detention (together with one year’s supervision and 200 hours community work). On 26 December 2008, Mr M irreparably damaged the community detention-monitoring unit used to monitor his sentence, and subsequently removed the bracelet attached to his ankle. He was then located on 1 January 2009 after the Timaru Police reported to the Oamaru Police that he had been detained in the cells for detoxification. On

14 January 2009 he was granted bail, having entered guilty pleas to charges of breaching community work, theft and wilful damage. However, he breached the residential condition of his bail on 6 February 2009 when he was not located at his mother’s address to which he had been bailed. He was remanded in custody by Justices of the Peace on 9 February 2009 and that led to the application for bail determined by Judge O’Driscoll on 12 February 2009.

[7] Relying heavily on s 15, Mr Stratford submitted that his age entitled him to a further, and undoubtedly final, chance on bail. He submitted that there was still the prospect of work at the freezing works close to his mother’s address, and that if he could earn some money towards the reparation which was of such obvious concern to the Judge at the bail hearing, that might well amount to a substantial factor in his favour at sentencing. Mr Stratford had no instructions on the current availability of work at the freezing works, but it is to be treated at least as a realistic prospect.

[8] Understandably, Mr M ’s mother has apparently had reservations about having him reside with her on bail, but Mr Stratford advised that she is prepared to have him, and that she would do so on terms that she would promptly report to the Police the prospect or occurrence of any breach of whatever conditions are imposed on him.

[9] There is some suggestion from the notes of exchanges at the 12 February

2009 bail hearing that the Police were not adamantly opposed to bail, but would want certification of non-performance of a condition of the bail under s 38 of the Act, and for a “final warning” to be issued to the defendant about the consequences of any subsequent breach.

[10] In submissions for the Police on the appeal, Ms Denton submitted that the appellant had already been given “a last chance”, that his history justified serious concerns both that he would not appear for sentence, and that he would re-offend whilst on bail. In essence, her submission was that there was no realistic practical alternative to continuing his remand in custody. She pointed out that:

• the breach of bail on the last occasion occurred when he was bailed to his mother’s home;

• he had had three weeks to gain employment at that time and had not done anything to earn any money; and

• (without knowing the content of the pre-sentence report being prepared on Mr M ) an awareness of the likelihood of imprisonment when he is sentenced adds further to the pressure on him which has recently no doubt contributed to his offending and his breach of bail.

[11] On the last point, I note that the affidavit sworn by a Probation Officer on

7 January 2009 in support of the application that the appellant be re-sentenced concluded with the following:

That the said Regan James M is no longer assessed suitable for community detention given his continual breaches of leaving his approved curfew address during his curfew hours, his intentional damage to the electronic equipment, overall failure to comply with community detention conditions and his transient nature of failing to remain at a specific address to ensure his is electronically monitored sufficiently. Recommend the sentence of community detention is cancelled and an alternative sentence such as imprisonment is imposed. There is little confidence that Regan James M can comply with any electronic monitored sentence given his overall non-compliance with community detention sentence.

[12] I accept that there is a very real risk that this young man will offend again, if given bail. Of course it is to be hoped that he would appreciate how serious an aggravating factor that would be if indeed there is any prospect of his avoiding a sentence of imprisonment. Were it not for the application of s 15, then these risks and the usual presumption under s 13 would undoubtedly see him remaining in custody.

[13] However, the weight of the presumption in s 15 leads me by a slender margin to the view that there is indeed a realistic, practical, alternative, namely that Mr M be given one final chance to comply with strict bail terms. That chance is given because of his age. Mr M has not previously been in prison. Mr Stratford expressed the hope that the month or so he has now spent there has provided a “reality check” giving him the incentive not to offend further, and to demonstrate that he is worthy of a less restrictive sentence than imprisonment.

[14] My reservations in allowing the appeal are heightened by the relatively short period until his sentencing. It may be that it would actually be in his own best interests that he remain in custody, rather than be subjected to the risk of any further offending, including breach of bail conditions, which would inevitably seriously aggravate the sentencing proposition he presents in 13 days’ time. However, that is a paternalistic concern that cannot carry much weight in light of the settled approach to s 15.

[15] Mr Stratford has urged that the appellant be given a last chance that is very important to demonstrate that he can comply with bail conditions, and to afford an opportunity to get work that would be relevant in a number of ways to his sentencing. It is consistent with s 15 that he be given that chance. Hopefully he will not blow it, and will appreciate that his future will be much bleaker if he does, than if he had stayed in custody.

[16] I accordingly allow the appeal and grant the appellant bail. To allow for arrangements to be made, this decision is to take effect from 9.00am tomorrow,

13 March 2009, and as soon thereafter as arrangements can be made, bail is to be on the following terms:

a) He is to reside at 257 Pukeuri-Oamaru Road and is not to leave that address between the hours of 7pm and 6am.

b) He is not to consume alcohol or any drugs not prescribed for him by a medical practitioner.

c) He is not to drive a motor vehicle.

d) Prior to his release on bail, he is to be provided with a copy of this decision and, after reading it, or having it read to him, he is to provide a written acknowledgement that he has read it (or had it read to him) and understood it.

e) Any concerns conveyed by his mother to the Police about his compliance with any of the terms of his bail will constitute a ground for application to the District Court to revoke his bail.

f) He is remanded on bail to appear for sentence in the Oamaru District

Court at 10am on 25 March 2009.

Dobson J

Solicitors:

Aspinall Joel, Dunedin for appellant

Wilkinson Adams, Dunedin for respondent