GOODALL v NZ POLICE [2017] NZHC 92

GOODALL v NZ POLICE [2017] NZHC 92 [8 February 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-007[2017] NZHC 92IN THE MATTER of an appeal against refusal to grant bailpending sentenceBETWEEN PHILLIP MARK GOODALLAppellantAND NEW ZEALAND POLICERespondentHearing: 3 February 2017Appearances: K J Gray for AppellantC J Bernhardt and B Hawes for the RespondentJudgment: 8 February 2017JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST REFUSAL OF BAIL PENDING SENTENCE)This appeal[1] The appellant has pleaded guilty to three charges, one of assault under the Summary Offences Act 1981,1 one of male assaults female under the Crimes Act 1961,2 and one of breaching a protection order.3 The charges resulted from an incident on Christmas Eve last year, when the appellant assaulted a former partner, in whose favour there is a protection order, and a male.[2] On 4 January 2017, His Honour Judge Walsh remanded the appellant on bail without plea, after his application had initially been refused. Following the guilty plea, His Honour Judge O'Driscoll refused the appellant's application for bailpending sentence. The Judge's main reason for refusing the application was that this1 Summary Offences Act 1981, s 9; maximum penalty 6 months' imprisonment or $4000 fine.2 Crimes Act 1961, s 194(b); maximum penalty two years' imprisonment.3 Domestic Violence Act 1995, s 49(3): maximum penalty 3 years' imprisonment.is the appellant's twelfth breach of a protection order and a sentence of imprisonment was highly likely.[3] The appellant appeals against the refusal to grant bail pending sentence. For the reasons below, the appeal is dismissed.Jurisdiction and principles on appeal[4] The appellant has a right of appeal against the Judge's refusal to grant bail,4which proceeds by way of re-hearing.5 Where there has been no significant change in circumstances, the appeal is conducted on the basis of the record of the District Court.6The approach on appeal is that articulated in B v Police (No 2),7 where the Court identified what is involved as essentially a challenge to the exercise of judicial discretion:8Someone 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.)[5] This approach has been affirmed by the Supreme Court in Wong v R.9Law[6] Where 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.10 The onus is on the defendant to show cause why bail4 Bail Act 2000, s 44(1).5 Bail Act, s 44(6).6 Grey v Police [2014] NZHC 3169 at [4].7 B v Police (No 2) [2000] 1 NZLR 31 (CA).8 At [6].9 Wong v R [2009] NZSC 64.10 Bail Act, s 13(1).should be granted.11 When considering the interests of justice the Court may take into account the following factors instead of those in section 8:12(a) Whether the defendant is likely to receive a sentence of imprisonment;(b) The likely length of the time that will pass before the defendant is sentenced;(c) The personal circumstances of the defendant and the defendant'simmediate family;(d) Any other considerations that the court considerers relevant.Analysis[7] The appellant, through counsel Ms Gray, submits that bail should have been granted in the interests of justice, and another view should have been taken in the District Court.Likelihood of a sentence of imprisonment[8] Judge O'Driscoll was of the opinion that a sentence of imprisonment washighly likely. While each of the three charges, to which pleas have been entered may result in sentences of imprisonment, the Judge focused on the breach of protection order. The appellant has been convicted of breaching a protection order on eleven occasions, all in relation to his former partner. He was last sentenced for breach on 29 May 2015, for five breaches which occurred in February of that year. The sentence imposed was six months home detention and 120 hours of community work. Judge O'Driscoll suggested that, given this sentence, "the Court is unlikely toimpose a further electronically monitored sentence"13 and that "it will be necessary to hold the defendant accountable".14[9] In Crean v Police, Brewer J noted that breach of a protection order is "one ofthe types of offending where prior convictions are integral to the assessment of the11 Bail Act, s 13(2).12 Bail Act, s 13(3).13 New Zealand Police v Goodall [2017] NZDC 1190 [notes on bail application] at [4].14 At [4].gravity of the index offending".15 In that case the fact that the defendant had breached the order on two previous occasions was a major factor in the Judge upholding a sentence of 12 months imprisonment. The breach in that case involved the defendant following and arguing with the protected person over some distance, causing the protected person to seek refuge by locking herself in a public lavatory. There was no physical altercation.[10] In Mitchell v R, the starting point for the breach of a protection order was 8 months imprisonment.16 The offending behaviour was leaving threatening text andvoice messages on the protected person's telephone. Again, the record of previous breaches was a significant factor in the sentence.[11] In Williams v Police, the defendant breached a protection order by punching the protected person in the mouth.17 On appeal, a starting point of 12 months imprisonment for the offending was found to be manifestly excessive. The judge on appeal preferred a seven month starting point. A three month uplift was given for previous convictions including four previous protection order breaches. After discount for guilty plea, the sentence imposed on appeal was 8 months imprisonment.[12] In light of these authorities, the Judge was justified in coming to the conclusion that a sentence of imprisonment was likely. The breach in this case involved physical abuse analogous to that in Williams. The previous protection order breaches substantially increase the seriousness of the offence. The appellant has a previous conviction for breaching home detention conditions. This, along with the persistence of the protection order breaches, shows a disregard for court orders and will be a factor that goes against a sentence of home detention, although that remains for fuller consideration.15 Crean v Police [2015] NZHC 3203 at [16].16 Mitchell v R [2015] NZCA 442; (2015) 30 FRNZ 534.17 Williams v Police [2014] NZHC 3255.The likely length of the time that will pass before the defendant is sentenced[13] The remand is until 28 February 2017. The appellant will have been in custody for a little over a month at that time. Given the above authorities, it is likely that any sentence of imprisonment will be longer than that, if it is imposed.Personal circumstances of the defendant and the defendant's immediate family[14] Counsel raised a number of points concerning the personal situation of the appellant. He has the shared custody of a son, and has started his own company as a gib-stopper, employing six people. These factors have relevance at sentencing.[15] The appellant has had problems with methamphetamine addiction. He successfully completed an addiction programme in mid-2015. He received support from another organisation for methamphetamine addiction at the end of last year. The appellant submits that his previous offending was connected to this addiction, but that he has been clean for approximately fourteen months. That, if substantiated at sentencing, is in the appellant's favour, together with his useful worklife, if substantiated. He appears to have turned a corner in his overcoming his methamphetamine use and gainful employment, but reverted to a previous path in this offending.[16] Judge O'Driscoll considered these factors, but thought that they were not sufficient to warrant bail being granted. Such a finding was open to the Judge. Theappellant's circumstances are not exceptional. Employment complications and the disruption of child care arrangements are ordinary consequences of offending,and come with the territory. The appellant's contention that his past drug addictionis connected with his offending is not supported by the fact that the present offending, which is of a similar nature, occurred while he was drug free.[17] In Preston v Police, Duffy J held that while the opportunity to attend a drug rehabilitation programme can be a factor in favour of bail, "the Court requires more than vague advice" that drug rehabilitation is to be explored.18 There needs to be evidence that something concrete has been organised. The appellant has not been in18 Preston v Police HC Hamilton CRI-2011-019-4158, 2 August 2011 at [9].a rehabilitation programme since early December, and there is no evidence that he is scheduled to attend another in the future. As such he is not missing out on support he would otherwise be getting by being remanded in custody.Any other considerations[18] In Tufele v Police, Gendall J noted that the use of "instead of" in s 13(3) ofthe Bail Act does not preclude the factors in s 8 from being taken into consideration.19[19] In this case, the views of the victim (s 8(4)) and the likelihood that the appellant will offend while on bail (s 8(1)(a)(i)) are relevant. In her victim impact statement, the victim stated that she is concerned about her safety and feels constantly at risk. Given the repeated nature of the protection order breaches, and that in this latest incident the abuse was physical, these fears are reasonable.[20] The Police report on grounds for opposing bail show that the appellant has committed 7 offences while on bail in the past, including breaches of the protection order. It seems likely that this could occur again.Conclusion[21] Ms Gray advanced responsible and cogent submissions which turned on the interests of justice. They fall for further consideration at sentencing. Mr Bernhardt supported the Judge's decision as according with principle and disclosing no error.[22] The Judge did not err in the exercise of his discretion in refusing to grant bail. The Judge considered all relevant factors and did not consider any irrelevant factors. The Judge was justified in coming to the conclusions that he did. The appeal is dismissed.19 Tufele v Police [2016] NZHC 879 a t [16].[23] I add that the District Court Judge will likely be interested for sentencing inwhether the appellant has remained "clean" of methamphetamine abuse, and if so why then he still offended in this repetitious and disturbing way..Nicholas Davidson JSolicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co, Christchurch