R v Leigh [2014] NZHC 2375 (29 September 2014)

Last Updated: 18 November 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-40 [2014] NZHC 2375

THE QUEEN

v

_{TRIXIE ROSINA LEIGH}

Hearing:	29 September 2014
Counsel:	J E Tarrant for the Crown S Nepe for the Defendant
Judgment:	29 September 2014

_{JUDGMENT OF BROWN J}

Solicitors: Crown Solicitor, Hamilton

Counsel: S Nepe, Hamilton

R v LEIGH [2014] NZHC 2375 [29 September 2014]

[1] The appellant was convicted by a jury on four charges of dishonestly using a document to obtain a pecuniary advantage. Her offending related to dishonestly obtaining funding from the Ministry of Education for her early childhood centre.

[2] On her conviction her application for bail was declined by Judge E M Thomas in the District Court at Hamilton on 22 August 2014 and she was remanded in custody until sentencing on 28 October 2014. She now appeals from the decision declining to grant her bail pending sentencing.

Bail pending sentence

[3] Section 13 of the Bail Act 2000 relevantly provides:

13 Exercise of discretion when considering bail pending sentencing

(1) If a defendant is found guilty or if a defendant pleads guilty, the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

(2) The onus is on the defendant to show cause why bail should be granted.

(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) whether the defendant is likely to receive a sentence of imprisonment:

(b) the likely length of time that will pass before the defendant is sentenced:

(c) the personal circumstances of the defendant and the defendant's immediate family:

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

(4) If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.

Grounds of appeal

[4] The notice of appeal dated 30 August 2014 states the following grounds: (a) Wrong in fact and law.

(b) Particularly having regard to the fact appellant over 70 with no history and significant health problems which require attendance at specialist appointments. Also main support for family caring for grandchildren and assisting family who are due to travel overseas.

Approach to appeal

[5] Section 44 of the Bail Act 2000 governs the right to appeal to the High Court against a bail decision of the District Court. Section 44(6) states that such an appeal is by way of rehearing.

[6] In Dodd v R¹ the Court of Appeal affirmed the applicable principles as stated in B v Police (No 2):²

[26] Prior to the enactment of the Bail Act, this Court described the principles to be applied when considering an appeal against the grant of bail in B v Police (No 2) in these terms:

[6] ...Someone who appeals a refusal of bail and is unable to point to a material change in the circumstances since the lower Court’s decision faces the difficulty that it is a challenge to the exercise by a Judge of a discretion. The appellant must therefore establish that the refusal of bail was contrary to principle, or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong. (Where there has been such a change in circumstances the better course is for a further application to be made to the lower court, rather than the pursuit of an appeal).

[27] Counsel accepted that these principles continue to apply under the Bail Act. We agree and note that the Supreme Court has accepted that decisions under the Bail Act involve the exercise of discretion.³

Submissions of counsel

[7] For the appellant Ms Nepe emphasised the consideration in s 13(3)(c), namely the personal circumstances of the appellant and her immediate family. She first noted that the appellant has been the sole caregiver for her two year old granddaughter, cares for her grandson before and after school and is responsible for

_{housework and the care of animals at her daughter’s property. Since the appellant’s}

¹ _{Dodd v R [2011] NZCA 490.}

² _{B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31 (CA).}

³ Wong v R [2009] NZSC 64.

incarceration significant costs have been incurred both in terms of full-time care and loss of income in addressing these responsibilities.

[8] Secondly, attention was drawn to the appellant’s health. She has significant hearing difficulties and there are concerns about several aspects of her physical health which Ms Nepe emphasises has deteriorated since her trial. Indeed she tells me that the appellant cannot be handcuffed because of her progressive arthritis. The appellant is 72 years old, has no criminal history, is not a violent offender and is said not to be a threat to society.

[9] In essence, Ms Nepe really seeks bail for a brief window until sentencing so that in the intervening period the appellant can say her farewells to Auckland family and attend to various medical appointments.

[10] Noting that the presumption under s 13(1) is against the grant of bail, the Crown submits that the starting point is to examine the nature of the offending and whether it would warrant a term of imprisonment. The offending involved deliberate dishonesty which occurred on two discrete occasions and resulted in a substantial loss to the Ministry of Education.

[11] The Crown submits that, as Judge Thomas recognised, the only appropriate sentence is a term of imprisonment. The Crown notes that the Judge considered all relevant considerations including the appellant’s personal circumstances which are emphasised by the appellant on the appeal. However the decision to decline bail pending sentence was a discretionary decision and the Crown submits was appropriately determined by the Judge.

Decision

[12] With reference to the consideration in s 13(3)(a), Adams on Criminal Law notes⁴ that a Judge must not only address the possibility of imprisonment but also form a view as to how likely it is that such a sentence will be imposed. The more

_{probable a sentence of imprisonment, the more likely it is that bail will be refused.}

⁴ Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [Bl13.03].

[13] I agree with Judge Thomas that a sentence of imprisonment is very likely, indeed as Ms Nepe acknowledges today. I also agree that a probable starting point is a sentence of approximately four years. Because the appellant did not plead guilty but was convicted at trial, it is extremely unlikely that discounts from that starting point would be available so as to reduce the sentence to two years such that home or community detention would be a possibility. The likely term of imprisonment was a significant relevant factor which was properly taken into account by Judge Thomas.

[14] Judge Thomas also took into account the circumstances concerning the childcare arrangements for the appellant’s grandchildren but noted that alternative arrangements must have been made for the week of her trial.

[15] The Judge was also cognisant of the appellant’s medical concerns but recognised, as Ms Tarrant echoed today, that the prison service is well equipped to deal with any difficulty in obtaining necessary medication for the appellant.

[16] Although the Judge did not expressly refer to the s 13(3)(b) factor, he referred twice to the fact of the sentencing date of 28 October 2014 and so was plainly mindful of the short length of time which would pass before sentencing.

[17] In my view the Judge took into account the relevant matters and was not influenced by any irrelevant consideration. I can discern no error of principle, nor do I consider that the decision was plainly wrong. Indeed I would have come to the same conclusion that the appellant had failed to discharge the onus of showing cause why bail should be granted pending sentencing. Consequently the appeal against the

_{decision is dismissed.}

Brown J