M v Police HC Palmerston North CRI-2009-454-29 [2009] NZHC 839 (17 July 2009)

Last Updated: 21 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

_{CRI-2009-454-29}

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 17 July 2009

Counsel: P L Murray for Respondent

O S Winter for Appellant

Judgment: 17 July 2009 at Oral

_{ORAL JUDGMENT OF MACKENZIE J}

[1] This is an appeal against the refusal of bail. The appellant appeared in the District Court on 30 June. At that stage he was awaiting sentence on a burglary charge and he had been on bail in respect of that. While on bail a further charge of burglary had arisen. I am informed by Mr Winter that that further charge has now been reduced to one of attempted burglary. So his position needed to be reassessed as a result of that further charge which, at that stage, was one of burglary. Bail was refused by Judge Ross following careful consideration of the appellant’s position.

[2] The appellant is 17 years of age so the provisions of s 15 of the Bail Act 2000 apply to him and he must be released on bail unless, under s 142(4A) of the Criminal

M V POLICE HC PMN CRI-2009-454-29 17 July 2009

Justice Act 1985, the Court is of the opinion that no other course other than a remand in custody is desirable having regard to all the circumstances.

[3] In the District Court, and in this Court, bail was opposed. The circumstances of the offending were considered by the Judge. He noted the bail position to which I have referred and reached the conclusion that no other course other than a remand in custody was desirable.

[4] On this appeal it must be demonstrated either that the learned Judge has operated on a wrong principle of law or that the exercise of his discretion is of such a nature that it should be reviewed. It is clear that the learned Judge correctly applied the law. He had regard to both s 15 and to s 142 and clearly had those provisions at the forefront of his mind when he made his decision.

[5] The exercise of his discretion needs to be considered. At that stage Mr Winter, the appellant’s counsel today, was not available and the appellant was represented in the District Court by the duty solicitor. That means that I should take account of any circumstances which can be brought to my attention by counsel which were not able to be brought to the attention of the Judge.

[6] The appellant’s father had been in hospital but has now been released and has expressed a willingness to take some responsibility for the appellant and to accept a 24 hour curfew. I do not consider that the availability of that course is a matter which should cause me to intervene in the exercise of the Judge’s discretion. The fact that the appellant’s father was out of hospital and might be able to provide supervisory oversight of his son was expressly dealt with by the Judge. The appellant has a lengthy history of offending in the Youth Court, although, because of his age, the current charges are the first which he has faced in the District Court. He has offended on bail and indeed this offending was committed while on bail.

[7] I can have little confidence that if bail were granted the conditions of it would be observed and I do not consider that it is appropriate that a 24 hours curfew be imposed with all the consequences which that would have for both for the appellant’s family and for the police in supervising its enforcement.

[8] I consider that the Judge’s discretion was properly exercised, essentially for the reasons given by the Judge and I see no basis upon which I could intervene in the exercise of the discretion.

[9] The appeal will accordingly be dismissed.

“A D MacKenzie J”