Brackenridge v Police HC Rotorua CRI-2011-470-000017
[2011] NZHC 1320
•22 July 2011
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2011-470-000017
NATASHA PATRICE BRACKENRIDGE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 22 July 2011
Counsel: V T Winiata for the Appellant
J Rhodes for the Crown
Judgment: 22 July 2011
JUDGMENT OF WOOLFORD J
Counsel: Mr V T Winiata, Barrister, PO Box 13342, Tauranga for the Appellant
Solicitors: Crown Solicitor, PO Box 13063, Tauranga for the Crown
BRACKENRIDGE V NEW ZEALAND POLICE HC ROT CRI-2011-470-000017 22 July 2011
[1] On 27 October 2009 at Tauranga the appellant was stopped by the police and
forbidden to drive any motor vehicle until she had obtained a driver’s licence.
[2] At about 10:10 pm on Saturday, 1 January 2011 the appellant drove a motor vehicle on James Cook Drive in Tauranga. At that time she was stopped by the police and her vehicle was impounded.
[3] The appellant’s partner, who had been in the car with the appellant, was then arrested by police on another matter. A violent struggle began with three police officers struggling to restrain the appellant’s partner. The appellant stepped in and tried to stop police arresting her partner and was pushed away. The appellant grabbed her handbag, which was on her right shoulder, and struck a police officer to the right side of his head causing a small abrasion to his scalp. She was also arrested and began to struggle. She was very abusive to police and continued struggling while two police officers handcuffed her.
[4] She was then taken to the rear of a patrol car and while the seat belt was being placed around her she spat at another police officer from close range into his face. While being transported to Tauranga Police Station she continued to be uncooperative and abusive.
[5] At Tauranga Police Station and while being processed she had to be physically restrained while being searched. She remained completely uncooperative.
[6] As a result of these events the appellant was charged with a number of offences. In the end, she pleaded guilty to one charge of driving a motor vehicle whilst forbidden, a fineable only offence, two charges of assaulting police under the Summary Offences Act 1981 which carries a maximum penalty of six months imprisonment and one charge of resisting police also under the Summary Offences Act 1981 which carries a maximum penalty of three months imprisonment.
[7] The experienced District Court Judge sentenced the appellant to three months imprisonment on the two assault charges, and one month’s imprisonment on the charge of resisting police. She was convicted and discharged on the charge of
driving whilst forbidden. The appellant now appeals the sentences of imprisonment imposed upon her. The appeal is on the grounds that the sentences of imprisonment are manifestly excessive and/or wrong in principle.
[8] The appellant had originally been charged with assault with a weapon under the Crimes Act 1961, which carries a maximum penalty of five years imprisonment and also assaulting police under the Crimes Act 1961, which carries a maximum penalty of three years imprisonment. The appellant pleaded guilty after the charge of assault with a weapon was withdrawn and the charges of assaulting police reduced from Crimes Act offences to Summary Offences Act offences.
[9] In sentencing the appellant, the District Court Judge was of the opinion that a community-based sentence must be out of the question because the appellant had breached community work on at least four occasions from 2007 through to 2010. He was of the view that the appellant was not able to comply with keeping appointments and matters of that kind and therefore that it would be inappropriate to consider any type of community-based sentence for her.
[10] The District Court Judge drew the inference from the summary of facts that the appellant “was under the influence of something or other” to behave in that fashion. In his view, the type of conduct displayed by the appellant was not a single incident of someone losing control of herself temporarily for a short period of time. He stated this was an incident of the most disgraceful kind, which was deserving of the utmost denunciation and deterrence. He stated
The police are not punch bags to be kicked, punched and spat on by the lower types in our society that they have to deal with. The sooner that people realise that, the better. In fact, Parliament is looking at increasing the penalties for such behaviour because it is so common now that it has got out of hand.
[11] The District Court Judge concluded by saying he was going to sentence the appellant to a “purely deterrent sentence” although after sentencing the appellant to imprisonment he ordered that she be released on standard and special conditions to terminate in six months from the end of her sentence.
[12] After spending four days in prison and instructing new counsel, the appellant filed this appeal and was granted bail pending a decision from the High Court.
[13] In comprehensive submissions, counsel for the appellant, who did not appear for her at the sentencing, noted that supervision (with identified special conditions) and community detention were recommended in the pre-sentence report. At page 2 of Appendix 1 to the pre-sentence report reference was made to the appellant’s previous compliance with a sentence of home detention and concluded that, “She should have no difficulty in complying with the minimal requirements of community detention or another short sentence of home detention.”
[14] In an affidavit filed in support of her appeal, the appellant also points out that she completed her most recent sentence of community work without further breach action being taken on that sentence. She had also previously completed a sentence of home detention in early 2009 without breach action been taking on that sentence.
[15] Her counsel therefore submits that the District Court Judge was wrong to conclude that a community-based sentence must be out of the question given both the recommendation contained in the pre-sentence report and the opinion of the report writer that she should have no difficulty in complying with the minimal requirements of community detention or another short sentence of home detention.
[16] Counsel for the appellant further submits that the inference taken by the District Court Judge that the appellant was under the influence of something or other was unjustified. Again, the appellant in her affidavit states that she was not under the influence of drugs or drink that night and noted that the police had not charged her with driving under the influence of drugs or drink. She states that she behaved in the manner she did solely because she was extremely angry as a result of the police handling of both her partner and herself. She acknowledges she lost control and behaved badly towards the other police officers concerned. She states that she regrets her actions and is very remorseful. She also notes that she does not have any prior convictions for violence of any kind.
[17] Counsel for the appellant also refers to the comments made by the District Court Judge about the penalties for this type of offence to be increased. He submits that this must be a mistake on the part of the District Court Judge because there is, in fact, no proposal to increase penalties for this kind of offence. He notes, however, that there is a proposal contained in the Sentencing (Aggravating Factors) Amendment Bill that a specific aggravating feature be inserted in s 9(1) Sentencing Act 2002 that the victim was a constable or a prison officer acting in the course of his or her duty. Advice from the Crown Law Office states that this has always been seen as an aggravating feature and the Bill merely confirms the position as it has always been under the common law.
[18] Counsel for the Crown acknowledges that the approach of the learned District Court Judge to sentencing in this case is not particularly transparent. It is clear however, he submits, that the Judge regarded the appellant’s actions in a very poor light, which view was open to him on the basis of the facts.
[19] The Crown reminds me that unless it can be shown that the decision was wrong in legal principle or that the District Court Judge misdirected himself, or failed to take into account relevant considerations or took into account irrelevant considerations, or reached a decision which was unsupported by any evidence, then an appellate court should not substitute its decision for that of the District Court Judge merely because it may have exercised its discretion in a different way than the Judge sitting at first instance.
[20] Crown counsel accepts that there may be more serious cases of assault on police officers but states that these generally would be dealt with by way of more serious charges. The fact that this case kind of offending is not particularly serious when compared with other assaults is already reflected in the relatively low maximum penalty.
[21] The Crown also refers me to the aggravating features of this offending, including targeting and attacking the head and the effect on the victims. The wider circumstances of the assault itself, including the foul and offensive language used,
the spitting, and the resisting arrest, can be regarded as aggravating on a totality basis.
[22] Finally, counsel for the Crown submits that the sentence imposed was only half the maximum available to the District Court Judge and states that the sentence imposed was not manifestly excessive.
Discussion
[23] The Sentencing Act 2002 sets out the requirements for the imposition of a sentence of imprisonment. Section 16 provides:
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.
(3) This section is subject to any provision in this or any other enactment that—
(a) provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or
(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.
[24] Section 17 also provides:
17Imprisonment may be imposed if offender unlikely to comply with other sentences
Nothing in this Part limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on reasonable grounds
that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.
[25] Section 16 obliges a sentencing Court to 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. It is significant in my view that the appellant does not have any convictions for violence and there is no evidence before the Court to suggest that she presents an appreciable risk to the safety of the community through the commission of any violent offences. Despite the District Court Judge’s comments about kicking and punching police, the summary of facts does not disclose that she kicked or punched either of the police officers. She did, however, use her handbag to assault one of them.
[26] As to the risk to the safety of the community through the commission of other non-violent offences, the appellant is now aged 33. She has five convictions for receiving stolen property committed over six years ago for which she received community work, one conviction for obtaining a sum of money less than $500 also committed over six years ago, and one conviction for shoplifting committed 18 months ago. Her only other convictions are for breaches of the community work sentences she received, for which she received a sentence of 28 days home detention. Because of her age and her relatively modest list of convictions I am of the view that the risk of her committing further non-violent offences and thereby imperilling the safety of the community is not so great as to require imprisonment for these offences.
[27] I am also of the view that there is no reason why the purposes of denunciation and deterrence, which were the primary purpose of the sentencing appropriate for the actual level of the appellant’s conduct towards the police here, could not have been met by a sentence other than imprisonment, such as community detention or home detention.
[28] I agree with the appellant’s counsel that any of the punitive sentences of community work, community detention, or home detention would have been more consistent with an application of the principles in s 8 to this particular case in that any of those alternatives could properly be considered the least restrictive outcomes
available and appropriate in this case, which would also address the principles of denunciation and deterrence identified.
[29] The District Court Judge was of the view that the appellant would be unlikely to comply with any sentence other than imprisonment. In doing so he focused on the fact that the appellant had four prior convictions for breaching community work. With respect he does not appear to have given enough weight to the fact that she had received and completed a sentence of 80 hours community work for her last breach of community work in 2010, that she had also previously completed a sentence of home detention and that she was assessed as suitable for an electronically monitored sentence in Appendix 1 to the pre-sentence report.
[30] The District Court Judge inferred that the appellant’s behaviour was drug induced and although the appellant acknowledges being a recovering drug addict on the methadone programme, the special conditions for supervision recommended in the pre-sentence report were, no doubt, intended to assist her continuing rehabilitation in that regard. The District Court Judge acknowledged the need for such measures in ordering that she be released from her prison sentence on the recommended conditions.
[31] The appellant has never previously been imprisoned. The sentence of three months imprisonment for the assaults as described in the summary of facts was undoubtedly a stern one. With respect to the experienced District Court Judge I do consider, however, that the sentence was manifestly excessive and/or wrong in principle. The District Court Judge did not give adequate weight to the appellant’s more recent history of compliance with community-based sentences. The sentence of three months imprisonment was not the least restrictive outcome in the circumstances and other options short of imprisonment ought to have been considered more seriously. While I agree wholeheartedly with the District Court Judge’s comments about the disgraceful nature of assaults on the police, he did not focus sufficiently on the circumstances of this particular appellant.
[32] The appeal is accordingly allowed and the sentences of imprisonment on the charges of assault on the police and resisting the police are quashed. In their place, I substitute the sentence recommended in the pre-sentence report.
[33] The appellant is accordingly sentenced to supervision for six months with the following special conditions:
(a) To attend and complete an appropriate drug and alcohol programme to the satisfaction of the probation officer and programme provider. Details of the appropriate programme to be determined by the probation officer.
(b)To attend and complete such counselling, programme, treatment to address/identify the offending behaviour as may be directed by the probation officer and to the satisfaction of the probation officer and programme provider.
[34] In addition, the appellant is sentenced to three months community detention with the following conditions:
(a) To reside at 22 Slade Street, Greerton, Tauranga for the duration of the sentence.
(b)The curfew hours are to be 7:00 pm until 7:00 am daily. Date of the first curfew is today, Friday, 22 July 2011.
Woolford J
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