Boggs v Police
[2014] NZHC 123
•11 February 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2013-404-000329 [2014] NZHC 123
BETWEEN SHANE BOGGS Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 10 February 2014 Appearances:
V Feyen for the Appellant
R N Thompson for the RespondentJudgment:
11 February 2014
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 11 February 2014 at 4.30 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
BOGGS v POLICE [2014] NZHC 123 [11 February 2014]
Introduction
[1] Mr Boggs appeals a sentence of seven days’ imprisonment imposed by Judge G A Andrée Wiltens in the District Court at Manukau on 7 November 2013. The sentence was imposed in relation to two convictions for assaulting police constables, each acting in the execution of his duty, and one conviction for intentionally obstructing a police constable.
[2] The first two convictions were for offences pursuant to s 10 of the Summary Offences Act 1981. Each carries a maximum penalty of a term of imprisonment not exceeding six months or a fine not exceeding $4,000. The third conviction was for an offence pursuant to s 23(a) of the Summary Offences Act. It carries a maximum penalty of a term of imprisonment not exceeding three months or a fine not exceeding $2,000.
[3] The appeal was advanced on two principal grounds:
(a) first, that the Judge erred in sentencing Mr Boggs to a term of imprisonment, without first obtaining a pre-sentence report;
(b) secondly, the sentence of imprisonment was “inappropriate”, having
regard to the principles contained in ss 8 and 16 of the Sentencing Act
2000.
Factual Background
[4] Each of the charges related to offending which took place on 1 November
2013, in or in the vicinity of a mobile police breath test bus.
[5] Mr Boggs had attended a function and he had become intoxicated. He did not endeavour to drive home. Rather, he contacted his partner and asked her to come and collect him. She did so. On the drive home, their car was stopped at a police checkpoint. The partner failed an initial passive breath test. She was requested to accompany an officer to the breath test bus. Mr Boggs decided to accompany her. He walked into the bus and approached his partner, stating that he should be present
to witness the excess breath alcohol test to be conducted. The police warned Mr Boggs that he was not to obstruct officers in the procedures being followed by them, that he was not to interrupt and that he was not to use profanities in or near the bus. The consequences of failing to abide with these instructions were explained to Mr Boggs, and he accepts that he understood them.
[6] Notwithstanding this, Mr Boggs walked on and off the bus on a number of occasions, used profanities and actively obstructed several officers present.
[7] As a result, Mr Boggs was arrested, and he was taken to a nearby police vehicle so that he could be transported to the Manukau Police Station. Mr Boggs actively resisted police while they were in the process of placing him inside the police vehicle. While one officer, a Constable Morgan, was attaching a seatbelt restraint around Mr Boggs in the rear of the police vehicle, Mr Boggs leant on his back and attempted to kick Constable Morgan in the knee. The other constable, Constable Waugh, then proceeded to the other side of the patrol vehicle and attempted to sit Mr Boggs up. Mr Boggs raised his legs and kicked Constable Waugh in the forehead. Constable Waugh sustained slight bruising to his forehead, but he did not require medical treatment.
[8] While he was being driven back to the Manukau Police Station, Mr Boggs apologised to both officers for his behaviour. When he was spoken to by police, he stated that he was worried about his partner being processed for drink driving, and he apologised to the police for the assaults against the police officers involved.
[9] Mr Boggs appeared in court on 7 November 2013. He was represented by a duty solicitor, a Mr Clee. Mr Boggs entered a guilty plea to all three charges and accepted the summary of facts presented by the police. He also accepted the record of his criminal and traffic history. Convictions were entered. Mr Clee took brief instructions from Mr Boggs. Mr Clee was confident that the matter would be dealt with by way of a fine. He made brief submissions to Judge Andrée Wiltens to this end. In the event, a sentence of seven days’ imprisonment was imposed in relation to each offence, the sentences to be served concurrently.
[10] The Judge did not seek a pre-sentence report before imposing the sentence of imprisonment.
The Judge’s Sentencing Notes
[11] Judge Andrée Wiltens briefly set out the facts. He noted that Mr Boggs’ involvement in the situation had inflamed matters. The Judge observed that it is difficult for the police to do their job and that officers acting in the execution of their duty are entitled to the assistance of the public and not resistance. He emphasised that if Mr Boggs did not like what the police officers were doing, then legal redress was open to him and that Mr Boggs could not take the law into his own hands. The Judge expressed the view that the offending was blatant and completely unwarranted.
[12] Judge Andrée Wiltens then referred to Mr Boggs’ extensive criminal history. He noted that he has convictions for using insulting language, obstructing the police, disorderly behaviour and common assault, all in the 1980s. He also noted that in
1996, Mr Boggs was convicted of resisting and assaulting a police officer.
[13] The Judge did not think that a fine was appropriate. He observed that, in his view, such a sentence would not meet the requirements of the Sentencing Act in terms of holding Mr Boggs to account for what he had done or deterring him and others from behaving in a similar fashion again. He also considered that community work was not an appropriate sentence, and further, that community detention would not achieve anything. The Judge expressed the view that the best sentence for Mr Boggs was seven days’ imprisonment. He stated that this was the least restrictive outcome available to the court, and this sentence was imposed.
The Appeal
[14] The offending was committed on 1 November 2013. Accordingly, the
Criminal Procedure Act 2011 is the governing legislation.1
1 Criminal Procedure Act 2011, s 2(1); Criminal Procedure Act Commencement Order 2013, cl 2.
[15] The appeal has been brought pursuant to s 244(1) of the Act. The offences in respect of which the convictions were entered are category 2 offences, and pursuant to s 247(b)(i), the first appeal court is this Court.
[16] The Court’s powers are set out in s 250. It provides as follows:
250 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
(3) The first appeal court must dismiss the appeal in any other case.
[17] As is noted in Adams on Criminal Law, subs (2) replaces the grounds for appellate intervention previously contained in s 121(3)(b) of the Summary Proceedings Act for appeals against sentence in the summary jurisdiction.2 Under that provision, an appeal court was not entitled to reconsider the matter afresh or to substitute its own view for that of the sentencing Judge. It could not interfere with a sentence that was lawfully and factually based, and that properly applied relevant
legal principles. It could only intervene if the sentencing court had fallen into error. There were, however, a wide range of errors that could justify intervention by an appellate court, for example, that the sentence was manifestly excessive or lenient or that the sentence was inappropriate in a particular case.
[18] This Court has held that s 250 codifies the “error principle” that evolved
under s 121 of the Summary Proceedings Act, and that the court should only intervene if the sentencing court erred.3 I agree with that view.
2 Bruce Robertson (ed) Adams on Criminal Law – Procedure (online looseleaf ed, Brookers) at
[CPA250.01]
3 Vae v Police [2013] NZHC 2664 at [27–28].
Submissions
[19] Ms Feyen acknowledged that the sentence imposed was a short-term sentence but nevertheless submitted that Judge Andrée Wiltens should have sought a pre- sentence report. She submitted that any report obtained would have disclosed the following:
(a) Mr Boggs was genuinely remorseful;
(b)Much of Mr Boggs’ earlier offending occurred when he was a member of a motorcycle club. In 1990, he severed his association with that club;
(c) Over the intervening period, Mr Boggs has turned his life around. He is now in a stable relationship, has family commitments and has built up a responsible career;
(d) Mr Boggs makes a significant contribution to the community;
(e) Mr Boggs is motivated and willing to participate in alcohol and anger management programmes.
[20] Ms Feyen submitted that, had the Judge had this material before him, he would have appreciated that the primary purposes of sentencing identified by him, namely denunciation and deterrence, could have been better achieved in this case by a community-based sentence. She argued that the least restrictive outcome in the circumstances, given the facts of this case, was a sentence falling short of imprisonment. She particularly relied on statements in an affidavit filed by Mr Boggs recording that there is a very real risk that he will lose his job if he is sentenced to a term of imprisonment.
[21] Ms Thompson, for the Crown, acknowledged that it is highly desirable for Judges to have the benefit of a pre-sentence report in the vast majority of cases where a term of imprisonment is in contemplation. However, she argued that the sentence in contemplation in the present case was short, and that the Judge did not,
in the circumstances of this particular case, err in sentencing Mr Boggs to a term of imprisonment without the benefit of a pre-sentence report.
[22] In her written submissions, Ms Thompson argued that the sentence of seven days’ imprisonment imposed was appropriate in the circumstances and that the Judge had regard to the sentencing purposes of accountability and deterrence. However, in oral argument before me, Ms Thompson accepted that if Mr Boggs is to lose his job as a result of the sentence of imprisonment, the sentence would be disproportionately severe. She acknowledged that Judge Andrée Wiltens did not have all appropriate information before him in this regard. While supporting the sentence under appeal, she accepted that the Crown could not take issue with a sentence of community work coupled with a sentence of supervision designed to ensure that Mr Boggs completes the alcohol and anger management courses that he has already started.
Analysis
[23] I deal first with the argument that a pre-sentence report should have been obtained.
[24] The Judge did not request a pre-sentence report prior to sentencing. Nor did Mr Clee as acting duty solicitor suggest that such a report should be obtained. He simply did not think that a sentence of imprisonment might be imposed.
[25] While this Court has to be careful not to impose unduly onerous requirements on busy District Court Judges dealing with crowded lists, it was common ground between counsel that a report could readily have been obtained from a probation officer; probably on the same day. Probation officers are present in the District Court, and oral reports can be prepared and presented to Judges quickly and without undue formality.
[26] Relevantly, s 26 of the Sentencing Act provides as follows:
26 Pre-sentence reports
(1) Except as provided in section 26A, if an offender who is charged with an offence punishable by imprisonment is found guilty or
pleads guilty, the court may direct a probation officer to prepare a report for the court in accordance with subsection (2).
…
[27] In its terms, whether or not a pre-sentence report is obtained is in the discretion of the sentencing Judge. This notwithstanding, it is clearly desirable that in the vast majority of cases sentencing Judges should obtain a pre-sentence report, particularly where a term of imprisonment is in contemplation.4
[28] Here, it is not clear whether Judge Andrée Wiltens expressly turned his mind to the desirability of obtaining a pre-sentence report. There is no reference to the possibility of obtaining a pre-sentence report in his sentencing notes. Normally, one would expect a Judge who is contemplating not obtaining a pre-sentence report to first seek the views of counsel and to then articulate his or her decision and briefly set out the reasons for it. While that did not occur in the present case, presumably the Judge was contemplating a short-term period of imprisonment, and he did not consider that a report was necessary. It is clear from Mr Boggs’ affidavit that he wanted the matter over and done with quickly. Ms Feyen properly accepted that a report is not necessarily required when only a very short term of imprisonment is in prospect.
[29] In the circumstances, I am not persuaded that Judge Andrée Wiltens erred by not obtaining a pre-sentence report.
[30] I now turn to consider whether or not the Judge erred in principle in imposing a term of imprisonment of seven days.
[31] As I have noted in another decision, there is no tariff case for offending such as that in issue on this appeal.5 Imprisonment for terms ranging from one to three months has been imposed for medium gravity assaults such as kicking and head butting, but more minor assaults such as spitting or pushing which are one-off, or
which occur in the context of other serious offending, are more likely to receive a
4 R v Toki CA 448/06, 7 August 2007 at [5] (CA); R v Taurere HC Whangarei CRI 2011-488-30,
7 July 2011 at [20] (HC).
5 See R v Taurere at [25] and cases noted in n 4.
sentence of periodic detention, supervision, community work, a fine or a minimal period of imprisonment. As I there observed, the various sentences are undoubtedly
explained by the circumstances and the context in which the offending took place.
[32]
sente
Her cing
(a)
e, it seems to me that the following circumstances were relevant to the exercise:
Mr Boggs responsibly decided not to drive, and instead requested his
partner to come and pick him up; (b)
The offending, while unfortunate and foolhardy, was at the lower end
of the scale. Mr Boggs attempted to kick Constable Morgan, but he
was unsuccessful. He did kick Constable Waugh in the forehead. I
glean the impression that Mr Boggs was simply lashing out indiscriminately. Nevertheless, the fact that the kick was to the
constable’s head is an aggravating feature;
(c)
Mr Boggs promptly apologised to the officers. He repeated that
apology a short time later when he was interviewed at the police station. I have no doubt that he is genuinely remorseful; (d)
While Mr Boggs has been in trouble in the past, most of his offending is of historical interest only. He has not been guilty of any similar
offending since 1996; (e)
Since the early 1990s, Mr Boggs has made considerable efforts to turn
his life around. He was involved with a gang in the 1980s and most
of his offending occurred in that environment. In 1990, he ceased his
gang association; (f)
Since leaving the gang, Mr Boggs has dedicated much of his time and
efforts to volunteer work at the Otahuhu Rovers Rugby League
Football Club. He has endeavoured to persuade young men to avoid
the bad choices he made when he was younger. He produced a letter
n
of support from the secretary of that club. She advised that Mr Boggs has been awarded a life membership of the club for his services and commitment to the club and that he is always the first to put his hand up to do “running around” on behalf of the club. She noted that he has never been called before the club’s judicial committee;
(g)Mr Boggs has built a responsible career for himself. Again, he produced a letter from his employer. It is to his credit that Mr Boggs has made his employer aware of the present offending. He has been employed as a health and safety/procurement officer with his present employer since June 2007. The employer recorded that Mr Boggs has always maintained a high standard of work, that he is willing to take on extra duties or difficult tasks and that he is often required to work off-site, unsupervised. He was described as a well-liked member of the team and as being reliable, hard-working and loyal. Significantly, his employer also stated that he performs an integral role in the firm’s management team and that he is required to be on-call seven days a week due to his health and safety knowledge and experience. The employer stated that it would put pressure on the firm were Mr Boggs to be unavailable and that it would not function effectively without his participation;
(h)It is clear that Mr Boggs was affected by alcohol at the time of the offending. He frankly acknowledges that he and alcohol do not mix well. He has taken positive steps to address this problem. He has obtained professional help from an organisation known as “Connect” and, together with a counsellor, has devised a plan to achieve a no alcohol lifestyle. He has joined a programme known as the “Men 4
Men” programme, which offers counselling to men with alcohol and anger issues. He has been attending programme sessions every Wednesday night since 20 November 2013. Letters have been produced in support of Mr Boggs confirming his progress in the programme. The counsellor was present in court when the appeal was heard;
(i)Mr Boggs is in a stable family relationship. He has been in that relationship for the last 17 or so years. He has been supportive in bringing up his partner’s child from an earlier relationship. Mr Boggs produced a letter from his partner, confirming that he is the major wage earner in the family and that he supports not only her but also her retired mother who lives with them. She stated that any term of imprisonment would put a severe financial strain on the household, particularly if Mr Boggs were to lose his job. Mr Boggs’ partner was also present in court when the appeal was heard.
[33] While it is not altogether clear from the materials before me, I accept from the affidavit that has been filed that there is a risk that Mr Boggs may lose his employment in the event that a sentence of imprisonment is upheld. This was not disputed by the Crown.
[34] Regrettably, not all of this information was before Judge Andrée Wiltens. I have received from counsel a transcript of the discussion which preceded the sentencing. The duty solicitor did put some limited information before the Judge. Clearly, more detailed information was available and the relevant information has been expanded upon for the purposes of this appeal.
[35] Judge Andrée Wiltens quite properly focussed on deterrence and denunciation. However, he did not go on to refer to the ascending scale of sentences set out in s 10A of the Sentencing Act. Given that the duty solicitor was suggesting that a fine was appropriate, in my view, the Judge should have considered the hierarchy of sentences available once he decided that a fine was inappropriate. While the Judge did say that a community-based sentence was not appropriate, he did not explain why he took that view. In my view, he should have done so and he should have considered whether a community-based sentence would have achieved the purposes of sentencing he identified – namely deterrence and denunciation.
[36] Relevantly, s 16 of the Act provides as follows:
16 Sentence of imprisonment
(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b) those purposes cannot be achieved by a sentence other than imprisonment; and
(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.
…
[37] The Judge did specify the purposes of the sentence he was imposing – namely to deter and denounce. Ms Feyen accepted that the requirements of s 16(2)(a) were satisfied. However, she argued that s 16(2)(b) and (c) were not satisfied. These matters were not discussed by the Judge. They should have been.
[38] In my judgment, a community-based sentence would have achieved the purposes of denunciation and deterrence identified by the Judge. In the particular circumstances of this case, a community-based sentence should have been preferred because of the way s 16(2)(b) is framed and the necessity for picking the least restrictive sentence detailed in s 9(g).
[39] Further, in my view, Judge Andrée Wiltens placed rather too much emphasis on Mr Boggs’ criminal history, much of which was largely if not completely irrelevant, and all of which was of historical interest only. He did not expressly take into account the extent of Mr Boggs’ remorse, the very real attempts he has made to turn his life around, the considerable success he has achieved in that regard and the disproportionately severe consequences for Mr Boggs and his family were Mr Boggs to lose his employment as a consequence of a sentence of imprisonment.
[40] In my view a sentence of supervision, together with a sentence of community work, will sufficiently denounce Mr Boggs’ conduct and will also act as a sufficient
deterrent to other persons minded to assault police officers. Such a sentence will allow Mr Boggs to remain in his current employment and to complete the alcohol and anger management course he has already started.
[41] I emphasise that nothing in this judgment should be taken as an indication that this court does not view the assault of police officers seriously. Assaulting police officers is always a serious matter. The police are entitled to expect that such conduct will be dealt with appropriately, and if necessary, strongly.
[42] In the particular circumstances of this case, I allow the appeal, quash the sentence of imprisonment of seven days, and substitute the following:
(a) Mr Boggs is sentenced to a sentence of supervision for a period of nine months. The standard conditions set out in s 49 of the Act are to apply. In particular, Mr Boggs is to complete the alcohol and anger management course already started by him to the satisfaction of the probation officer and course provider. He is also to complete any other counselling or programme as directed and to the satisfaction of the probation officer and provider;
(b) Mr Boggs is sentenced to a term of community work, for a period of
300 hours.
Wylie J