Johnston v Police [2014] NZHC 1835 (6 August 2014)

Last Updated: 20 August 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-60 [2014] NZHC 1835

NOAH JOHNSTON Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	5 August 2014
Counsel:	C J Tennet for Appellant E M Light for Respondent
Judgment:	6 August 2014

_{JUDGMENT OF RONALD YOUNG J}

Introduction

[1] Mr Johnston is 18 years of age. He is charged with aggravated robbery alleged to have occurred on 25 November 2013. Since his appearance on that date there had been substantial difficulties about his bail. He was initially granted bail but breached it and was remanded in custody. He appealed to this Court. The appeal was allowed and bail granted. But again he breached bail and allegedly committed a robbery and assault with intent to injure.

[2] Attempts were then made to have him remanded on electronic bail but addresses in Whitianga and Lower Hutt proved inappropriate. Eventually he proposed a third address in Kaitaia. That was suitable for EM bail. The District Court Judge refused EM bail on the basis that he did not consider that Mr Johnston

_{would turn up for his trial and/or not commit further offences.}

JOHNSTON v NZ POLICE [2014] NZHC 1835 [6 August 2014]

[3] Mr Johnston appeals against the refusal to grant him EM bail. There are three grounds. First, the Judge was wrong when he concluded that electronically monitored bail would not eliminate the risk that Mr Johnston would commit further offences. Secondly, the Judge gave insufficient weight to the package of support behind the electronically monitored bail that had been arranged for Mr Johnston. And thirdly, the Judge failed to properly consider the statutory requirements relating to a young person’s bail before a remand in custody was appropriate.

The alleged offending and the appellant’s past

[4] The aggravated robbery charge involves an allegation of a street robbery by Mr Johnston and others of a visitor to New Zealand who was knocked to the ground. A passport, credit cards and $30 was taken on 25 November 2013.

[5] As to the other charges, robbery and assault with intent to injure, they involve serious allegations of violence against another young man. The violence included allegations of kicking and punching. These events are alleged to have occurred on

6 January 2014 when Mr Johnston was on bail for the original offending. The offending is alleged to have involved Mr Johnston and two other young men.

[6] Mr Johnston has a number of previous convictions including ten convictions for property offending (burglary, receiving and taking motor vehicles) as well as a conviction for possession of an offensive weapon and most recently a breach of conditions of intensive supervision.

The District Court decision

[7] In the District Court the Judge considering bail detailed Mr Johnston’s conduct from the date of his first appearance on the aggravated robbery charge to the further alleged offending and the bail breaches. The Judge acknowledged the considerable lengths and efforts that Mr Johnston’s mother had gone to attempt to support him on electronically monitored bail. The Judge also acknowledged a report from a neuropsychologist. He concluded that Mr Johnston was either unwilling or unable to comply with bail conditions. He had allegedly offended while on bail in a serious way. He constantly breached bail. The Judge said he was not prepared to

run the risk of electronically monitored bail. He remanded Mr Johnston in custody for trial due in late 2014.

Bail problems

[8] Before I deal with the specific grounds of appeal, I detail what has happened to Mr Johnston as far as bail is concerned since his initial appearance on the aggravated robbery charge.

[9] Mr Johnston was granted bail when he first appeared on 25 November and remanded to appear on 3 December. The Judge noted that the bail conditions involved residence, curfew, a non association clause and geographical limits.

[10] On 28 November Mr Johnston was discovered in the central business district at 12.30 a.m. in breach of both the geographical restriction and the curfew. The following day the police checked his address but he was not home. On 2 December he was arrested in Taranaki Street at 2.50 a.m. both in breach of his curfew and the geographical limitation. When Mr Johnston appeared in the District Court on

3 December he was remanded in custody. Mr Johnston had been sentenced to intensive supervision in July but by December had only reported twice to his probation officer. Breach action was under way.

[11] Mr Johnston appealed this refusal to renew bail. The Judge in the High Court considered that the District Court Judge had failed to take into account the length of time that Mr Johnston was likely to remain in custody (while awaiting trial) and the impact of a remand on Mr Johnston’s employment prospects. The Judge granted bail on the same terms but with reporting to the police station.

[12] The Judge in the High Court then said:

I want Mr Johnston to be left in no doubt that if he fails to comply with these terms then there is every prospect that he will have his bail revoked again.

[13] Regretfully Mr Johnston took no notice of what he had been told. On

14 January Mr Johnston appeared in the District Court in breach of the conditions of bail. He had again entered Wellington City during curfew hours. Bail was refused again although the Judge in the District Court was apparently not told Mr Johnston had in the meantime been charged with robbery and assault with intent to injure involving an incident in Lower Hutt a few days earlier.

[14] On 5 February 2014, Mr Johnston applied for EM bail and offered the

District Court an address in Lower Hutt but that was not seen as suitable. On

24 March 2014 he put forward a second address at Whitianga, the address of his mother. Again that address was not suitable. Finally, on 30 June a third address was proposed in Kaitaia. This was assessed as suitable by Corrections and so the question of electronic bail came back before the District Court.

[15] The Department of Corrections interviewed Ms Nova (Mr Johnston’s mother) for the EM bail application with respect to the Coromandel address. The report noted Ms Nova had:

... openly acknowledged that she was ill equipped to cope with her son’s complex needs particularly on the strict curfew conditions he would be under whilst on EM bail. While being accepting of this she wished to make it clear to her son that she was not abandoning her son. Rather she believed she has a far more suitable address for him to be on EM bail.

[16] In an attempt to obtain a suitable EM bail address, Ms Nova shifted to Kaitaia. The EM bail suitability report from Department of Corrections said the occupants (Ms Nova) and the address in Northland was suitable for EM Bail. The Department said that Mr Johnston would be away from the alleged co-offenders and victims in the Wellington region. Indeed Mr Johnston did not know anyone in the area. There was significant community support for Mr Johnston and Ms Nova and EM bail.

Appeal grounds discussion

[17] Dealing with the third ground of appeal first,¹ I am satisfied that the Judge properly considered the statutory requirement applicable to bail and a young person in s 175 of the Criminal Procedure Act.

[18] Mr Johnston is 18 years of age. Section 175 provides that when remanding a person of or over the age of 17 but under the age of 20 years, that person may be detained in custody if in the Court’s opinion no other course is desirable having regard to the circumstances. The Judge specifically mentioned Mr Johnston’s youth. He undertook a detailed analysis of the facts and reached the conclusion that no other course was desirable given what he saw as the likelihood of reoffending and the difficulties of ensuring Mr Johnston would turn up to his court appearances. While the Judge’s conclusion could be the subject of debate, he clearly applied the proper statutory test to Mr Johnston’s circumstances.

[19] The real issue on this appeal arises from the first two grounds of appeal; whether or not the particular electronically monitored bail set up for Mr Johnston in the North will probably substantially reduce the risk that he will offend while on bail and reliably turn up to his court attendances.

[20] First, I consider the report obtained by counsel from a clinical neuropsychologist. Dr McGinn concluded that Mr Johnston had a mental impairment, foetal alcohol syndrome and a mild intellectual disability. While she considered he would be fit to stand trial she considered there would be difficulties in any trial and a need to ensure Mr Johnston understood the procedure.

[21] In terms of any punishment if convicted, she noted that people with foetal alcohol syndrome often do well in structured residential settings but can reoffend quickly on release unless well monitored and supported. They are difficult to control. In the past Mr Johnston has successfully lived in such a structured

_{residence. Her analysis explains why bail without some form of compulsory}

¹ At [3].

structure may not restrict Mr Johnston’s conduct. The report also notes how easily

influenced Mr Johnston is likely to be.

[22] Ms Nova is of the Baha’i faith. She has made contact with other members of the Baha’i faith in Northland. They are prepared to help and support her and Mr Johnston if he is given EM bail. Ms Nova also has support from her family in the far North and the Te Whare Rongoā Trust. Together these organisations will offer counselling sessions relating to drugs and alcohol for Mr Johnston (the EM house will be drug and alcohol free Ms Nova says), a regular meal service is provided, one of the Bahai young persons will come to the house each week to help Mr Johnston with his music and other youth programmes will be offered to Mr Johnston.

[23] The Department of Corrections, who had rejected the other two proposed EM bail addresses believe the Kaitaia address could be positively considered. Apart from the benefits previously identified Mr Johnston will be away from all of the influences which played a part in his behaviour in Wellington and the Hutt Valley.

[24] Understandably the police submitted that the District Court Judge’s decision was correct and that Mr Johnston’s conduct was so out of control EM bail would not restrict him.

[25] I have decided by the finest margin to grant EM bail. I am influenced by these factors:

(a) the circumstances of the proposed EM bail address. The efforts proposed to support Mr Johnston and the fact the address is most of the length of the North Island away from those who will influence Mr Johnston to misbehave are important;

(b) Mr Johnston’s age at 18 years. Allied with this is Mr Johnston’s personal and intellectual limitations that I have identified. Through no fault of his own this young man has had a very bad start in life.

And so every effort must be made now to break his behavioural cycle. What is proposed for him in Kaitaia is his best chance;

(c) I know that the Trust, those Baha’i followers who are helping Mr Johnston and Ms Nova herself will understand that they will need to keep a very close eye on Mr Johnston;

(d) the first trial of the aggravated robbery charge is not likely to be until the end of 2014. Some four to five months away. Mr Johnston has already had a period in custody on remand. In prison his behaviour is likely to deteriorate given his vulnerability to influence. This may in turn shut the door to rehabilitative sentences if he is convicted. Given his age and mental fragility, it is in society’s interest that he be given every realistic chance now.

[26] If EM bail does not work and Mr Johnston commits further offences the position will be much worse for him. And so any breach of EM bail by Mr Johnston must be reported by Ms Nova and/or anyone else in the house to the police immediately. A failure to do so is likely to do Mr Johnston more harm than good.

[27] I am, therefore, satisfied the Judge in the District Court did not give adequate consideration to the support proposed for EM bail in Kaitaia and that the proposals give reasonable assurance Mr Johnston will not offend while subject to EM bail and he will attend court as required. The appeal is allowed.

[28] The order remanding Mr Johnston in custody is quashed. He is granted EM

bail on the following conditions:

(a) to remain at 22 Tasman Heights Road, Ahipara Kaitaia at all times Monday to Sunday inclusive unless otherwise directed by the EM bail team;

(b) you are not to have contact directly or indirectly with any person or persons who are co-accused, complainants and/or witnesses;

(c) you must not possess, consume or use alcohol or drugs (excluding medication prescribed to you);

(d) to attend all Government Agency and/or Departmental appointments as approved by the Department of Corrections EM bail team;

(e) to attend all scheduled appointments as specified and deemed appropriate by the Department of Corrections EM bail team leader;

(f) when leaving the EM bail address you are to remain in the company of Maia Nova or other such person specified and deemed appropriate by the Department of Corrections EM bail team leader;

(g) not to offer violence, physical or verbal;

(h) to submit to a passive breath test as requested by police.

[29] The EM bail will commence when Corrections deliver Mr Johnston to the Kaitaia police station. They should do so as soon as they are able. Mr Johnston is then to be held in the custody of the police at the Kaitaia police station until uplifted by Ms Nova. He is then to be taken directly to 22 Tasman Heights Road, Ahipara

_{when his EM bail will commence.}

_{Ronald Young J}

Solicitors:

Public Defence Service, Wellington

Luke Cunningham & Clere, Crown Solicitors, Wellington