The Queen v Lima

[2008] NZCA 517

IN THE COURT OF APPEAL OF NEW ZEALAND

CA732/2008
[2008] NZCA 517

THE QUEEN

v

TOMAS LIMA

Counsel:J D Dallas for Applicant

K A L Bicknell for Crown

Judgment:1 December 2008 at 2.15 pm

(on the papers)

JUDGMENT OF ELLEN FRANCE J

The application for bail is granted on the following conditions:

1.        That the applicant resides at 51 Kings Drive, Levin; and

2.That the applicant reports to the Levin Police Station between the hours of 9 am and 5 pm, Mondays and Fridays.

[1]       The applicant pleaded guilty to three cannabis-related charges.  On 6 November 2008, he was sentenced to eight months home detention.  The applicant has now applied under s 70 of the Bail Act 2000 for bail pending the final disposition of his appeal on the grounds that it is in the interests of justice to grant bail pending the hearing of the appeal. 

[2]       As to whether a grant of bail is appropriate, I note that there is insufficient information on the file to reach any view about the merits of the substantive basis of the appeal.  No other matters in terms of s 14(3)(b) to (d) of the Bail Act are advanced to support the grant of bail.  However, in terms of other considerations which may warrant the grant of bail (s 14(3)(e)) the observations of Glazebrook J in R v Ward [2008] NZCA 328 at [3] are relevant.

[3]       Her Honour in Ward referred to the discussion in R v Edwards [2008] NZCA 109 at [3] – [4] and R v Bisschop [2008] NZA 229 at [11] of the “apparent inconsistency between s 399(3) of the Crimes Act and s 80ZB of the Sentencing Act 2002”: at [3]. Glazebrook J continued at [3]:

The latter provides that time ceases to run on a sentence of home detention only when the offender is released on bail pending the appeal.  This Court also expressed concern about offenders sentenced to home detention becoming free of any constraint simply on the filing of an appeal.  The Court stated that it is desirable and appropriate for those who seek suspension of home detention sentences pending appeal to seek bail.

[4]       Because of this issue, the Crown does not oppose the granting of bail pending determination of the sentence appeal and I am satisfied that course is appropriate given the circumstances. 

[5]       The Crown seek two conditions:

(a)That the applicant reside at 51 Kings Drive, Levin (the Crown says that the alternate address suggested by the applicant is the site of the cannabis cultivation offending and submits that bail to that address would be inappropriate).

(b)That the applicant report to the Levin Police Station on Mondays and Fridays between the hours of 9 am and 5 pm. 

[6]       Given the circumstances and the parties’ approach to the application, bail should be granted on the conditions set out above.  The applicant made no reference to a reporting requirement but in my view a reporting condition is necessary.

[7]       The appeal should be set down for hearing as soon as possible.

Solicitors:

Crown Law Office, Wellington