The Queen v Vautier

[2009] NZCA 285

IN THE COURT OF APPEAL OF NEW ZEALAND

CA373/2009
[2009] NZCA 285

THE QUEEN

v

RONALD BRUCE VAUTIER

Counsel:P Winter for Applicant

S B Edwards for Crown

Judgment:6 July 2009 at 10.30 am 

JUDGMENT OF ELLEN FRANCE J

The application for bail is declined.

REASONS

[1]       The applicant pleaded guilty to three counts of indecent assault on a female under 12.  The offending involved three different girls and occurred between 1979 and 1988.  The applicant was sentenced by Potter J on 19 June 2009 to two years imprisonment.

[2]       The applicant has appealed to this Court against sentence.  No issue is taken with the length of the term.  The sole issue on appeal will be whether home detention should have been granted.

[3]       The applicant has applied for bail pending the determination of his appeal pursuant to s 70 of the Bail Act 2000.  I personally have considered the application under s 393(2)(d) of the Crimes Act 1961.

[4]       The test to be applied to the application is that set out in s 14 of the Bail Act.  Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in a particular case to do so.  Section 14(2) provides that the onus is on the applicant to show cause why bail should be granted.

[5]       The bail application is brought primarily on the grounds of the strength of the proposed appeal and the applicant’s personal circumstances.  In terms of the first ground, the applicant also says that the right of appeal is likely to be made nugatory in the absence of bail.

[6]       The Crown oppose the grant of bail.

[7]       I deal first with the strength of the appeal (s 14(3)(a)).  Two points are emphasised by the applicant in this respect.  First, the applicant will argue on appeal that Potter J erred in her assessment of the unsuitability of the proposed address at which a term of home detention would be served.  In addition, it is said that an alternative address is now available.

[8]       Secondly, the applicant will argue on appeal that Potter J erred in her assessment of the risk of reoffending.  Even if there was a risk, the applicant says that can be met by imposing special conditions of sentence under s 80D of the Sentencing Act 2002.

[9]       It is not appropriate or necessary at this point to engage in an extensive analysis of the merits of the proposed appeal: R v de Bruin [2007] NZCA 76 at [9] citing R v Ellis [1998] 3 NZLR 555 (CA).

[10]     However, for present purposes, I note that there is some force in the Crown’s submissions on these points.  As Ms Edwards observes, it appears from the sentencing remarks that one of the primary reasons for refusing home detention was Potter J’s concern that was inappropriate given the seriousness of the offending.

[11]     Secondly, it appears two pre-sentence reports concluded that the applicant posed at least a “low to moderate” risk.  On its face, such assessments are a matter which the Judge could take into account and weigh in the balance along with other matters.

[12]     I turn then to the applicant’s personal circumstances (s 14(3)(d)).  The material before me indicates that the transition to prison life is proving difficult for the applicant.  It appears that he has been in the Special Unit for at risk prisoners since shortly after his remand in custody.

[13]     These difficulties are, however, not such as in my view to mean a grant of bail is in the interests of justice.  Unfortunately, difficulties of this sort are not uncommon.  As this Court said in Ellis at 560, “[a]dmission to bail pending appeal is unusual and only to be granted in exceptional circumstances”.

[14]     I understand that if an urgent fixture is sought, the sentence appeal could be heard before the end of this month (on either 27 or 29 July).  In these circumstances, I am not satisfied the test for granting bail is met.

[15]     The application for bail is declined.

Solicitors:

Crown Law Office, Wellington