C v Police HC Christchurch CRI 2005-409-143

[2005] NZHC 42

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2005-409-000143

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 September 2050

Appearances: M J Callaghan and M R Smyth for Appellant

T J Gilbert for Respondent

Judgment:      15 September 2005

ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN

[1]          C     appeals  against  a  sentence  of  80  hours  community  work imposed upon him for possession of an offensive weapon and disorderly behaviour. It is said that such a sentence was manifestly excessive

[2]      On 14 November last year the Appellant was with a group of other young male Asians in the Belfast area.   They hopped out of a vehicle, holding various weapons and wearing masks.   It appears their intention was to confront another group of persons and the Judge was clearly entitled to infer that.  The other group of persons did not appear, but the actions of the group aroused the suspicions and

concerns of onlookers and the police were called.  The group departed in a hurry.

C  V POLICE HC CHCH CRI 2005-409-000143 15 September 2005

The registration number of the vehicle in which the Appellant was travelling was noted and relayed to the police via telephone.  An approaching police officer, who was expecting to attend an armed fight or something of that sort, saw the vehicle travelling south.  It was stopped and the Appellant apprehended.  He was found in possession of a mask and various items were located in the vehicle, including a crow bar, Samurai sword and two hockey sticks.

[3]      At the fixture the District Court Judge amended the information for reasons that he set out there to the effect that the weapon the Appellant was in possession of amounted only to the hockey sticks, not the Samurai sword or the crow bar.

[4]      The Judge, in his sentencing notes, noted the potential for violence and the “gangland” element to this matter.   He considered the Appellant’s role was more serious than that of another person who was sentenced at the same time, although he had suspicions in relation to that.  He accepted the Appellant was a first offender but considered it deserved something more than a fine.  He considered there need to be a deterrent aspect to those who think they can take actions in relation to this sort of thing.

[5]      On  a  number  of  grounds  Mr  Callaghan  has  argued  that  the  sentence  is manifestly excessive, particularly for a first offender.  He has stressed that there was no other group present and, in fact, accordingly there was no possibility for violence occurring.

[6]      Mr Callaghan relies heavily on the authority of a decision of my brother Justice Rodney Hansen in R v Sararutn (HC Auckland, CRI 2004-092-137, 19/4/05). With respect, that case is entirely different.  The purpose for which it is cited is to say that in that case the maximum sentence available was five years and a similar sentence was imposed on a first offender.   Mr Callaghan then points out that the maximum  sentence  available  for  these  two  offences  was  considerably  less  and argues that an 80 hour sentence of community work is manifestly excessive.

[7]      With respect, that is to ignore the real question the Court must consider which is the question of culpability.  The case relied on was a Thai woman who was

discovered by security at Auckland International Airport to have a folding penknife in her hand luggage and also a scalpel in a tin of cards.   It seemed to have been accepted by the Judge that the knife had been placed in her bag by her boyfriend so that she was an innocent agent.  There was extreme remorse.   She pleaded guilty. There was no sinister overtones whatsoever in that particular case.  None of those matters are present here.

[8]      These people were clearly up to no good on this particular night.  The fact that something more serious did not occur is probably good luck rather than good management.    While  this  man  may  be  a  first  offender,  the  Judge  noted  that deterrence was important given the problems of violence in this community, and indeed violence between competing Asian groups within the Christchurch community.  The Judge was entitled to take that into account.

[9]      I agree with Mr Gilbert that the case of R v Loh (CA 188/97, 28/5/97) is more relevant for present purposes, which endorses a penalty of the sort imposed here. Indeed, I agree with Mr Gilbert if anything 80 hours community work could be considered lenient in the sinister circumstances of this case.

[10]     The appeal against sentence is dismissed.

Solicitors:

Cavell Leitch Pringle & Boyle, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent

CC:

Judge Doherty