Brechelt v Police
[2017] NZHC 2955
•30 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-192 [2017] NZHC 2955
BETWEEN JESSICA BRECHELT
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 August 2017 Appearances:
J C Harder for Appellant
M L Clarke-Parker for RespondentJudgment:
30 November 2017
JUDGMENT OF PALMER J
This judgment is delivered by me on 30 November 2017 at 3.00 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Counsel/Solicitors:
Justin Harder, Barrister, Auckland
BRECHELT v NEW ZEALAND POLICE [2017] NZHC 2955 [30 November 2017]
Meredith Connell, Auckland
Summary
[1] Ms Jessica Brechelt was told by the Police she would be arrested for obstruction if she left her car where it was. Her response was “fuck that”. Her car obstructed a patrol car from moving for 10 to 20 minutes. The Police may have needed to move it. But, as it turned out, they did not. Ms Brechelt was convicted of intentionally obstructing a constable acting in the execution of his duty. I agree with the District Court Ms Brechelt was guilty of obstructing the Police in acting in the execution of their duty to put themselves in the position of being available to respond to other situations. But as to her sentencing, given the lack of any consequential effect of her obstruction, compared with the consequential effect on her of a criminal conviction, I discharge Ms Brechelt without conviction but maintain the order she pay court costs.
Facts
[1] On 20 September 2016, the Police were at Ms Brechelt’s partner’s business address for the purpose of impounding his ute. While the Police were waiting for a tow-truck to turn up, Ms Brechelt arrived and parked her car three to four metres away from the patrol car. After learning the Police intended to impound her partner’s car, Ms Brechelt entered the office at the address. She returned moments later, got into her car, and positioned it at a 45-degree angle across the left rear quarter of the patrol car. As a result, the Police could not move the patrol car and a tow truck would be unable to gain access to her partner’s ute.
[2] Constable Adam Osman told Ms Brechelt if she left her car there she would be arrested for obstruction. Ms Brechelt’s response was “fuck that”. Ms Brechelt did leave her car there and went back inside to collect her son. Between 10 and 20 minutes later, Ms Brechelt returned to her car and drove off. During the period the Police say their movement was restricted they, accept there was no need for them to be anywhere else and the tow truck did not arrive. So, as it turned out, Ms Brechelt’s refusal to move her car had no direct adverse consequence for the Police. Ms Brechelt pleaded
not guilty to a charge of intentionally obstructing a constable acting in the execution of his duty under s 23(a) of the Summary Offences Act 1981.
District Court Decision
[3] On 10 May 2017, Judge E M Thomas found:1
(a) the Police were obstructed because their patrol car was prevented from leaving had the Police wished to do so;2
(b)there was no other conclusion but that Ms Brechelt intended to leave it there to prevent the Police from moving their patrol car;3
(c) the Police were acting in the execution of their duty, and Ms Brechelt knew they were, because:4
[12] However, it is part of a police officer’s duty to make themselves available for any police matter that might arise during the course of their business. Had anything arisen that required the police to attend elsewhere to a matter of greater priority than what they were attending to on that particular day, the police would have had to have responded to it. The duty requires them to be, at all times, in a position to be able to respond if they are required to do so at a moment’s notice. It is no answer to say, “They could have come and knocked on the door and got me to move my vehicle.” They did ask you to move your vehicle and you refused to move it.
[13] Had there been any requirement for the police to go anywhere they would not have been able to do so. They were unable to put themselves in a position to be able to respond because of your deliberate act to block them in with your vehicle.
[4] On the same day, and apparently the same hearing, Ms Brechelt was convicted, fined $200 and ordered to pay court costs of $130. Ms Brechelt appeals against her
conviction and sentence.
1 New Zealand Police v Brechelt [2017] NZDC 13113 [Oral judgment]; and Brechelt v New Zealand
Police [2017] NZDC 12320 [Sentencing Notes].
2 Oral judgment at [5].
3 At [9].
4 At [12] and [13].
Law
Law of appeal against conviction
[5] Under s 232 of the Criminal Procedure Act 2011, I must allow Ms Brechelt’s appeal against conviction if I am satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or there has been a miscarriage of justice for any reason.
[6] The issue here requires me to analyse the scope of the offence of obstructing a constable. Section 23(a) of the Summary Offences Act 1981 provides (with the terms relevant here in bold):
23 Resisting Police, prison, or traffic officer
Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who resists or intentionally obstructs, or incites or encourages any other person to resist or obstruct, -
(a) any constable or any authorised officer, or any prison officer, or any traffic officer, acting in the execution of his duty; or
(b) any other person acting in aid of any such constable, authorised officer, prison officer, or traffic officer; or
(c) any Police dog working under the control of a Police dog handler.
[7] In 1994 in Mackley v Police Tipping J set out the elements of the offence which included that the constable was in fact obstructed in the execution of his or her duty and observed:5
For a police officer to be acting in the execution of his duty it is not necessary that he be doing something which he has a strictly legal duty to do. It is sufficient if he is doing something which he has the legal power to do, provided he is doing so in a reasonable manner and provided also that the exercise of the power is reasonable in the circumstances.
[8] In 2006 in Smith v New Zealand Police, in relation to obstruction under s 16 of the Misuse of Drugs Act 1975, Gendall J stated:6
As counsel agreed, it will always be a matter of degree whether there was hindering or obstructing. The refusal to comply with reasonable requests made in the course of
5 Mackley v Police (1994) 11 CRNZ 497 (HC) at 499.
6 Smith v Police HC Wellington CRI-2006-485-23, 23 June 2006, at [14].
the lawful exercise of powers may amount to obstruction or hindering. I do not accept the submission of counsel that some action rather than refusal or inaction was required. Words may in certain circumstances amount to obstruction or hindering. Likewise, standing mute or refusing to comply with reasonable directions, which are necessary in order that the lawful power of search be exercised, may suffice.
Law of appeal against sentence
[9] Under s 250 of the Criminal Procedure Act 2011 I am required to allow the sentence appeal if I am satisfied, for any reason, there is an error in the sentence imposed and a different sentence should be imposed. Otherwise, I must dismiss the appeal. The High Court does not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
[10] The relevant alternative possible sentence here is a discharge without conviction under s 11 of the Sentencing Act 2002 (the Act). If a person is found guilty, before entry of a conviction and imposition of a sentence, the court “must consider whether the offender would be more appropriately dealt with by”, among other options, discharging the offender without conviction. Under s 107 the court must not discharge an offender without conviction “unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.
Submissions
[11] Mr Harder, for Ms Brechelt, submits it is not an offence to obstruct an officer in respect of a contingent, speculative or hypothetical duty that he is not acting in the execution of. Her actions did not in fact obstruct the officer at the time, so her conduct is not caught by the charge. He cites Adams on Criminal Law which states:7
In Hinchliffe v Sheldon Lord Goddard CJ declared that “obstructing” means “making more difficult for the police to carry out their duties”, a generalisation that has been adopted in a number of New Zealand cases: see for example Steele v Kingsbeer; Ulrich v Police; and Goldsmith v Police. This does not require that an officer be actually prevented, or even materially delayed in discharging his or her duty, it being enough if its performance is made more difficult. It will not, however, suffice if conduct intended to obstruct had no effect on the police: Bennett v Bale.
7 Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [SO23.02] (citations omitted).
[12] Mr Harder submits Ms Brechelt’s actions did not make it more difficult for the Police to carry out their duties and, even if intended to obstruct, they had no effect on the Police whatsoever. Mr Harder also submits the Judge erred in failing to consider or grant a discharge without conviction.
[13] Mr Clarke-Parker, for the Crown, submits the Police do not have to be actually prevented or materially delayed from carrying out their duties for them to be obstructed. He submits Ms Brechelt’s failure to move her vehicle on request made it more difficult for them to execute their duties of being ready to respond to more serious situations if and when they arose. He also submits there was no realistic prospect of Ms Brechelt being granted a discharge without conviction so Judge Thomas did not err in failing to consider it.
Decision
The charge
[14] It will be no comfort to the parties, but this is the sort of fact situation about which law students can argue for days. I start with the point that the constables here had two duties: to impound Ms Brechelt’s partner’s ute; and to be available to respond to other situations if they arose. In that case they may need to move their patrol car in order to act in the further execution of their duties. So, Constable Osman was acting in the execution of his duty when he asked Ms Brechelt to move her car in case the need arose.
[15] Does it make a difference that the need did not arise? The constables were not obstructed in the further execution of their duties of responding to another situation because they did not need to do so. But they were obstructed from putting themselves in the position of being available to do so. That was part of their duty, as Judge Thomas noted.8 Constable Osman’s request to Ms Brechelt to move her car was reasonable in the circumstances, in terms of Mackley, and made in the lawful exercise of his powers, in terms of Smith. Given the request was made, the refusal to comply constituted obstruction for the purposes of the offence.
[16] Ms Brechelt did not obstruct the constable only by failing to remove the car. If she had not been asked to move it, she would similarly have prevented him from responding to another situation. But s 23(a) does not require the constable’s execution of his duties be obstructed. It requires the constable, who is in the execution of his duties, be resisted or intentionally obstructed. This may be a nuanced development of Tipping J’s analysis of this element of the offence. Ms Brechelt did resist and intentionally obstruct the Police officer, by refusing to remove the car.
[17] The passage from Adams on Criminal Law, relied upon by Mr Harder, cites Bennett v Police.9 The person charged with obstruction there had advised a plain- clothed constable to tell the police she hadn’t bought a drink at the pub after the time its licence expired that evening. But she had not, anyway, so the advice had no effect. Nolan J held “intention by itself to make the task of the police more difficult cannot amount to obstruction” and “[t]here must also be an act which makes that task more difficult”. But there, there was no such act. Here there was. Ms Brechelt refused to move her car which meant the Police could not respond to other situations.
[18] Accepting Mr Harder’s argument would have the unattractive consequence that whether those who intended to obstruct the police in such a way are guilty of obstructing the Police depends on the accident of whether their duties suddenly required their presence elsewhere. It follows that I do not overturn Ms Brechelt being found guilty of the charge.
The sentence
[19] Ms Brechelt is a 29-year-old single parent with a 15-month-old child, no qualifications and no previous convictions. She has been doing unpaid administration work for her former partner’s business. She was not legally represented when she first appeared at her trial and had never been to court before. Mr Harder advises she declined diversion because she did not consider she was guilty. In an affirmation, which I admitted under s 335 of the Criminal Procedure Act 2011 in the interests of justice, Ms Brechelt expressed concern and anxiety that having a conviction would
impede her from obtaining employment in the future. Such consequences are indirect effects of a conviction that I take into account.10
[20] There is no indication Judge Thomas considered whether to apply s 11 of the Act, as the Act required, when he sentenced her on the same day, and apparently the same hearing, as finding her guilty and convicting her. Not considering whether to discharge her without conviction was an error.
[21] I am satisfied the direct and indirect consequences of Ms Brechelt’s conviction would be out of all proportion to the gravity of her offending. There was no practical consequence for the Police of Ms Brechelt’s obstruction. There could be a significant consequence for Ms Brechelt of a criminal conviction for obstruction. She should not have obstructed the police. Doing so means she was guilty of the offence as charged. But she has learnt that lesson. I grant the appeal against sentence and discharge Ms Brechelt without conviction under s 106(1) of the Act. That entails quashing her conviction and fine. But, under s 106(3)(a), I effectively maintain the order she pay
$130 court costs.
Result
[22] I make the following orders:
(a) Under s 106(1) of the Act I discharge Ms Brechelt without conviction.
(b) Accordingly, I quash Ms Brechelt’s conviction and fine.
(c) I maintain the order Ms Brechelt pay $130 court costs, under s 106(3)(a).
..................................................................
Palmer J
10 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19]; Police v SR [2013] NZHC
980 at [11].