Rodrigo v Police

[2013] NZCA 683

IN THE COURT OF APPEAL OF NEW ZEALAND

CA838/2013
[2013] NZCA 683

BETWEEN	DRUVI PATRICK RODRIGO Applicant
AND	NEW ZEALAND POLICE Respondent

Counsel:	F E Guy Kidd for Applicant M D Downs for Respondent
Judgment:	24 December 2013 at 1.30 pm

(On the papers)

JUDGMENT O’REGAN P

The application for bail and suspension of the sentence of home detention pending appeal is allowed.  Bail is granted on the following conditions:

(i)The applicant is to reside at 60 Adamson crescent, Glengarry, Invercargill 9810 or such other address as may be approved in writing by Invercargill police;

(ii)The applicant is not to obtain or apply for a passport or seek the return of the passport held by the police.

____________________________________________________________________

REASONS

1. The applicant was convicted after pleading guilty to a charge of supplying a class B drug, Ritalin.  He was sentenced in the District Court in Dunedin to 10 months home detention and 200 hours community work.  The home detention sentence started on 29 April 2013, so he has served nearly eight months of it.  I am told he has also completed the community work.

2. On 14 November 2013, a like offender, whose offending was very similar in nature to that of the applicant and who had a similar record, was granted a discharge without conviction in the District Court in Auckland.  After hearing of this, the applicant consulted a lawyer and has now filed a notice of appeal against conviction and sentence and sought an extension of time to appeal.  The basis of the intended appeal is the disparity between the treatment of the applicant and the treatment of the like offender.  The applicant also applied for bail and suspension of sentence pending appeal.

3. Counsel have agreed that the transitional regime set out in s 403A of the Criminal Procedure Act 2011 applies in this case.  It seems there was some confusion about this and the probation service thought the sentence was automatically suspended on the appeal being filed.  That led to the applicant’s ankle bracelet being removed prematurely.

4. In order to succeed in his bail application, the applicant must discharge an onus under s 14(2) of the Bail Act 2000 of showing cause why bail should be granted.  The Court must be satisfied on the balance of probabilities that it would be in the interests of justice to grant bail.

5. Counsel for the respondent takes a neutral stance on the application.

6. I am satisfied on the balance of probabilities that it is in the interests of justice to grant bail (and to suspend the home detention sentence).  My reasons (by reference to criteria in s 14 (3) of the Bail Act) follow.

7. It is hard to gauge the strength of the appeal but I am satisfied that it cannot be described as without merit.

8. The sentence of 10 months home detention is substantially served and would be nearly completely served by the time the appeal can be heard.

9. I set the appeal down for hearing on 11 February 2014.  That is the first available date.  That is less than two months away, but as noted above, the sentence would be nearly completely served by then.

10. There are no compelling personal circumstances.

11. The other features to note are that there appears to be no basis for concern that the appellant will abscond and no public safety concerns.

12. In the circumstances I grant bail on the conditions noted above and suspend the sentence of home detention until the intended appeal has been resolved.  As the ankle bracelet has been removed already, the applicant may now travel to the bail address.

13. Counsel for the applicant should file her submissions on the substantive appeal by 28 January 2014 and counsel for the respondent should file his submissions by 4 February 2014.  I ask the case officer to provide copies of the sentencing notes for the applicant and for the like offender to counsel as soon as possible.  Counsel for the applicant should notify the fixtures officer if she wishes to appear at the substantive appeal hearing by videolink.

Solicitors:
AWS Legal, Invercargill for Applicant
Crown Law Office, Wellington for Respondent