Hansch v Police [2014] NZHC 1944 (18 August 2014)

Last Updated: 17 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-257 [2014] NZHC 1944

BETWEEN	JASON HANSCH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	15 August 2014
Appearances:	S T Clark for Appellant M R Walker for Respondent
Judgment:	18 August 2014

_{JUDGMENT OF PETERS J}

This judgment was delivered by Justice Peters on 18 August 2014 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Meredith Connell, Auckland

_{Counsel: S T Clark, Auckland}

HANSCH v POLICE [2014] NZHC 1944 [18 August 2014]

[1] The Appellant appeals against a decision of Judge Glubb in the District Court at Waitakere on 6 August 2014.¹ The Judge declined the Appellant’s application for bail pending appeal against sentence.

[2] An appeal against a refusal to grant bail pending appeal is an appeal against the exercise of discretion. It is for the Appellant to satisfy me that the decision appealed from was contrary to principle, or that the Judge failed to take relevant matters into account, or that the Judge took into account irrelevant matters or was plainly wrong.

[3] Counsel for the Appellant submits that the Judge erred in failing to allow bail for the reasons set out below. The Crown opposes the appeal and submits that there is no discernible error in the manner in which the Judge assessed the issues before him.

Background

[4] On 23 July 2014 the Appellant pleaded guilty to driving with excess breath alcohol (“EBA”) and driving whilst disqualified. The offences were committed in February 2014. In each case it was a third or subsequent offence. The Appellant has EBA convictions arising from events in 2000 (when he was a young person), 2002,

2004, 2005 and 2012.

[5] The Judge sentenced the Appellant to nine months’ imprisonment on each charge (to be served concurrently) and disqualified him from holding or obtaining a driver’s licence for a period. The Judge also imposed a “zero alcohol” condition on the Appellant’s driver’s licence.

[6] The Appellant has appealed sentence and has a nominal date for hearing of

20 October 2014. I record in passing that the Court’s staff wish to fix a firm date for the appeal but advise me that neither Crown counsel nor counsel for the Appellant

_{has confirmed the date(s) proposed to them. It may be there is a misunderstanding}

¹ Police v Hansch DC Waitakere CRI-2014-404-241, 6 August 2014.

but in any event both counsel should communicate with the Court as soon as possible.

Section 14 Bail Act 2000

[7] By s 14 Bail Act 2000 (“Act”), a person appealing conviction or sentence may only be granted bail if they satisfy the Court on the balance of probabilities that it would be in the interest of justice to do so.

[8] Section 14(3) of the Act provides:

14 Exercise of discretion when considering bail pending appeal

...

(3) When considering the interests of justice under subsection (1) the court may, instead of the considerations in section 8, take into account the following considerations:

(a) the apparent strength of the grounds of appeal:

(b) the length of the sentence that has been imposed on the appellant:

(c) the likely length of time that will pass before the appeal is heard:

(d) the personal circumstances of the appellant and the

appellant’s immediate family:

(e) any other consideration that the court considers relevant.

[9] Counsel for the Appellant submits that the Judge erred in his consideration of the various matters to be considered.

[10] As to the first two matters, counsel for the Appellant states that the main issue on the appeal will be whether the Judge erred in imposing a term of imprisonment rather than home detention or some other less restrictive form of sentence. The Appellant does not take any real issue with the length of sentence that the Judge imposed. On the face of it an end sentence of nine months’ imprisonment on a sixth EBA offence is not outside the acceptable range.

[11] On the form of sentence, the Judge did not consider the appeal stood good prospects of success. The Judge considered it apparent from his sentencing notes that he had decided that a less restrictive sentence than imprisonment was not appropriate, given the circumstances of the offending.

[12] It will, of course, be for the Judge on appeal to determine this issue. For myself, however, I consider it was open to the Judge to take that view of the Appellant’s prospects.

[13] The third factor in s 14(3) of the Act concerns the length of time that will pass before the appeal is heard. Unless bail is granted, the Appellant will have been in custody for some three months at the date his appeal is heard and that is a substantial part of the sentence. There is some force in the Appellant’s submission that the appeal may be rendered nugatory by delay but it is not so great as to persuade me the Judge erred in his overall assessment of the case for granting bail. I shall request that this appeal be listed as a “back up” in the event that another should be abandoned.

[14] Counsel made very strong submissions concerning the fourth and fifth factors. The Appellant has three young children, was employed at the time of sentencing, the same employment remains open to him and his income was and is required for the household. The Appellant was also able to assist with looking after the children and household tasks. As the Judge noted, however, these are consequences that go with a term of imprisonment. They are unfortunate but not out of the ordinary.

[15] Counsel also refers to evidence that, before sentence, the Appellant had taken steps to address what is undoubtedly a drinking problem and that he had commenced attending Alcoholics Anonymous and other courses. The Appellant cannot pursue these matters whilst in custody, much as he would like to do so.

[16] These efforts are commendable but it is open to the Appellant to resume his efforts if his appeal against sentence succeeds. There is no particular urgency in his resuming them now.

[17] To conclude, I accept the Crown’s submission that there is no demonstrable

error in the Judge’s decision. I dismiss this appeal accordingly.

..................................................................

M Peters J