Boggs v Police - [2014] NZHC 123

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boggs v Police

Details

AGLC: Boggs v Police [2014] NZHC 123
Case: [2014] NZHC 123
Decision Date: 11 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Shane Boggs appealed against his seven-day imprisonment sentence imposed by Judge Andrée Wiltens in the District Court at Manukau, following his convictions for assaulting police officers and obstructing a police constable. The appeal grounds were that the sentence was imposed without a pre-sentence report and was inappropriate considering the principles of the Sentencing Act 2000. The appeal was heard on February 10, 2014, with Ms Feyen representing the appellant and Ms Thompson representing the respondent. Justice Wylie delivered the judgment on February 11, 2014, and allowed the appeal.

The court examined the legal issues of whether the Judge erred in sentencing without a pre-sentence report and whether the sentence was inappropriate. The court found that while it is desirable for Judges to obtain a pre-sentence report in most cases where a term of imprisonment is contemplated, it was not an error in this case as the sentence was short. However, the court found that the Judge erred in imposing a term of imprisonment without considering the hierarchy of sentences available and whether a community-based sentence would have achieved the purposes of denunciation and deterrence identified by the Judge. The court also found that the Judge did not sufficiently consider Mr Boggs' remorse, his efforts to turn his life around, and the severe consequences for him and his family if he lost his employment as a result of the sentence of imprisonment.

The court concluded that a sentence of supervision, together with a sentence of community work, would sufficiently denounce Mr Boggs' conduct and act as a deterrent to others. The appeal was allowed, and the sentence of imprisonment was quashed and substituted with a sentence of supervision for nine months and a term of community work for 300 hours.

Orders