B v Police HC Hamilton CRI 2007-419-137

[2008] NZHC 298

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-419-137

B

Appellant

v

N.Z. POLICE

Respondent

Hearing:         11 March 2008 (Heard at Hamilton)

Appearances: Appellant in person

C.D. Bean for Respondent

Judgment:      11 March 2008

ORAL JUDGMENT OF PRIESTLEY J

Background

[1]      The appellant is an elderly man, now aged 72. He came to New Zealand in the early 1950s, having been displaced at the end of the Second World War as a result of boundary adjustments in Istria between Yugoslavia and Italy. For most of

his life in New Zealand he seems to have worked as a tunneller and an engineer.

B V N.Z. POLICE HC HAM CRI 2007-419-137  11 March 2008

[2]      He  has  had  previous  criminal  convictions  between  1953  and  1963,  but essentially has been out of trouble for 45 years or thereabouts.

[3]      In April 2007, on two consecutive days, he cut down two fence posts which were being erected along the boundary of his home in Huntly. The owners of the adjoining property, the trustees of a family trust, were people of whom the appellant had a dim view.

Hearing and appeal

[4]      The appellant was charged, under s11(1)(a) of the Summary Offences Act

1981, with wilful damage. This offence carries a maximum penalty of three months imprisonment or a fine not exceeding $2,000.

[5]      There was a defended hearing before Judge Tompkins in the Huntly District Court on 23 October 2007. The appellant represented himself at that hearing. The prosecutor was a police sergeant.

[6]      At the end of the hearing the Judge gave a short oral decision. He was satisfied that the two charges against the appellant had been proved beyond reasonable doubt. On each of the two charges the appellant was convicted and fined a sum of $300 and ordered to pay a single reparation figure of $60. There was an order for the destruction of the handsaw which the appellant used to cut down the two fence posts in question.

[7]      The appellant challenges his convictions and the fines by this appeal.

Discussion

[8]      In his helpful written submissions to me today, which the appellant expanded on slightly in oral argument, the appellant claims that he had a claim of right. This claim brings into play s11(2). For a prosecution to succeed under s11, it must be proved beyond reasonable doubt that the destructive act was done without lawful justification or claim of right.

[9]      In this regard the appellant asserts that he was doing no more than defending his property. That is the central focus of his submissions to me. I note, too, that it was a preliminary comment which he made when giving evidence before the Judge (notes of evidence p.24).

[10]     Both  in  the  District  Court  and  before  me,  the  appellant  was  somewhat equivocal as to whether or not he was individually responsible for sawing through two fence posts. Having read the notes of evidence and being aware, too, of what various witnesses observed, including a police officer who subsequently investigated the matter, I do not think it can seriously be contended that it was anyone other than the appellant who was responsible for cutting through the two fence posts.

[11]     Nonetheless, there was a background to the matter. It is clear from the notes of evidence, and from the appellant’s submissions to me, that he has a dim view of the Donovans, who own the adjoining land. He believes that their request under the Fencing Act was exorbitant and that the contract price involved in the erection of the previous fence was not an arm’s length price, but was instead a figure negotiated with a fencer with whom the Donovans had some form of commercial interest. The positioning of the fence was also a matter of some concern to the appellant. It is also clear from his evidence in the District Court that he had ongoing problems with the fencing position. Over the years the old fence had become somewhat dilapidated and the adjoining owners, instead of attending to it, sold up and moved on.

[12]     I  accept  the  appellant’s  submission  that  it  was  not  his  intention  to  be malicious, dishonest or destructive. I am prepared, for the sake of argument, to accept he genuinely believed that the fence post was intruding on to his side of the land. However, although that may have been his subjective belief, there can be no doubt, as the Judge rightly pointed out, that the appellant intentionally cut down, not once but twice, freshly installed fence posts. Although at trial the appellant argued that he believed there had been an encroachment, there was evidence available to the Judge, despite the appellant’s professed belief, that the boundary had been properly surveyed, that the appellant was aware of this, and that the fence posts were approximately 100 millimetres on the other side of the boundary.

[13]     As I explained to the appellant, his actions went somewhat beyond what would be justified, even if he did have lawful justification or claim of right. Fencing disputes are essentially civil disputes. If a fence trespasses on to neighbouring property, or if it encroaches in some way, there are civil remedies available. What the appellant did here, even assuming for the sake of argument that he did have a belief in claim of right, was to destroy, and deliberately so, two fence posts which were not his property. By way of analogy, as I pointed out to the appellant, even if I were the nastiest person in the world, and deliberately and maliciously parked my motor vehicle on the appellant’s lawn, he would be entitled to remove it, but he would not be entitled to smash the windows or slash the tyres.

Result

[14]     I am satisfied that the Judge has not erred. The charges of wilful damage were proved to the required degree. The evidence before the Judge amply justifies the conclusion the Judge reached and the two convictions.

[15]     I now turn to the appeals against sentence. The appellant, by any stretch of the imagination, is an elderly man. For cultural temperament reasons, the entire dispute over the positioning of the boundary fence and the attitude taken by his neighbours appeared to have irritated him. I have already referred to his past record. He is, I am satisfied, a man of limited means. The Judge, in fixing the penalty, has clearly pitched it at the lower end of the scale available to him, and rightly so. As Mr Bean sensibly pointed out, there are advantages in trying to achieve finality today.

[16]     I see the two separate acts of wilful damage (one on 7 April 2007 and the second the next day) as essentially being part and parcel of the same dispute and the same offending. I believe that they are best dealt with by a global fine. The approach taken by the Judge, although available, has led to a monetary penalty which is slightly excessive in the circumstances. There are mitigating factors such as the appellant’s means and his age, to which I have already referred.

[17]     Although I dismiss the appeal against conviction, I allow the appeal against sentence. The two fines imposed of $300 each (being a total of $600) are quashed.

There is substituted one single fine of $300. The reparation order, the order to pay witness expenses, and the order for the destruction of the handsaw, all stand.

Priestley J

Solicitors: C. Bean, Hamilton