F v Police HC Whangarei CRI 2006-488-44

[2006] NZHC 1137

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-488-000044

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 September 2006 (Heard at Whangarei)

Appearances: M F   appearing in Person

AL Patterson for Respondent

Judgment:      28 September 2006

(ORAL) JUDGMENT OF ASHER J

Solicitors:

M F  , 249 Paranui Road, Mangonui Rural, Far North District 557

PJ Smith, Crown Solicitor, PO Box 146 Whangarei

F V NEW ZEALAND POLICE HC WHA CRI 2006-488-000044 28 September 2006

Introduction

[1]      F   appeals his conviction and sentence on a charge of disorderly behaviour.

[2]      Mr F   pleaded guilty to a charge of disorderly behaviour by a letter dated

29 May 2006.   His conviction followed on 21 June 2006.   He was fined $350.00, together with $130.00 Court costs, by Justices of the Peace.

[3]      Mr F   says that he was unfairly arrested.  He had been out drinking with a friend, and he had given a finger sign to that friend who was across the road.  He did not realise there were Police between him and his friend.  The Police interpreted that sign as being directed towards them and arrested him.  He says that he should not be punished for such a minor transgression.   He strongly objects to the fine and the costs that were imposed, and says they are both an excessive response.

[4]      The Police summary sets out a more serious sequence of events.  There were a large number of intoxicated people in Vine Street, Whangarei, at 3:30 am in the morning.  There were outbreaks of disorder, and a number of arrests were made by the Police.  The Police say that Mr F   was in the crowd.  He was intoxicated and obstructed the Police as they made arrests.  The summary says that his actions were inciting the crowd, and he was warned about his behaviour.  It states:

Shortly after the defendant made a condescending gesture with his finger towards a passing Police patrol.  He was spoken to by the Police again, but was argumentative and ignor[ed] any warnings.   He was subsequently arrested.

The summary records:

The defendant later admitted the facts as outlined and explained that he was in a bad mood.

Change of plea

[5]      It can be first observed that Mr F  ’s statement to this Court as to what happened is rather different from the summary of facts.  The time for contesting the facts was at a defended hearing at which he denied the charge.   Alternatively, he could have contested the facts at the hearing as to sentence.  This Court is faced with a record of the conviction and a summary of facts on the file.  It cannot, in an appeal, go behind that summary of facts.

[6]      I have asked Mr F   whether he wishes to obtain legal advice.  It may be that he should consider applying to change his plea (although for reasons that I will refer to shortly, there will be difficulties in this).  He advises that he has already taken the day off work to attend Court today, and does not wish to spend more time on the matter.  He wishes the matter to be concluded today.  I should note that Mr F   has been careful and courteous throughout this hearing.

[7]      It must be said that there would be difficulties in Mr F  ’s way should he have sought to change his plea.  Section  42 of the Summary Proceedings Act 1957 states:

42    Plea of guilty may be withdrawn by leave of Court

A plea of guilty may, by leave of the Court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.

[emphasis added]

It seems that this Court’s inherent jurisdiction in indictable matters to accept changes of plea is also limited to applications made prior to sentencing: R v Kihi (CA 395/03,

19 April 2004), R v Le Page [2005] 2 NZLR 845 (CA).

Discussion

[8]      Mr F   entered a guilty plea to the charge.  He does not contest this.  In such a situation he cannot dispute the conviction.   The Justices of the Peace naturally proceeded on the basis of that guilty plea.

[9]      As I have stated, there would be difficulties in Mr F  ’s way should he seek to change his plea.   I have given him the opportunity to seek an adjournment and seek advice on the point, but he has declined to do so.

[10]     It should also be noted that in the standard form letter that Mr F   signed advising the District Court of his guilty plea, it was noted that he had been fully informed of the facts relating to the offence.  It was also noted that he understood that he could change his mind and appear at the District Court at Whangarei on

29 May 2006 should he wish to do so.

[11]     The Court is bound by the summary of facts presented to the Justices of the Peace.  They were not disputed.  I have already noted that the letter advising of the guilty plea stated that Mr F   had been fully informed of the facts.  The summary of facts indeed records that he admitted the facts as outlined.

[12]     It must also be said that Mr F  ’s explanation before me as to what happened is inconsistent, not only with the summary of facts, but also with what he stated in his letter advising of the guilty plea.   In that letter the standard form says “My explanation is as follows”.   There then follows four blank lines, which are to be filled in by the person signing the letter.  Mr F   has filled those lines in.  An earlier statement has been crossed out with many lines, and in it, it is stated “I was in a bad mood”.

[13]     This statement, on its face, shows an acceptance of the fact of disorderly behaviour and an explanation that he was in a bad mood.  It is not consistent with his explanation presented before me that he was making a harmless gesture to a friend across the road.  It is more consistent with him joining in some anti-social behaviour at the time.

[14]     The maximum fine available was $1,000.00.   The fine of $350.00 in the circumstances, is not manifestly unreasonable.   The misconduct set out in the summary of facts goes beyond Mr F   making a finger gesture.   It incorporates behaviour that could well have warranted a charge of obstructing the Police.  There is, therefore, no basis for interfering with the sentence that was imposed.   It was

entirely within the range available to the Justices of the Peace.  For these reasons the appeal is dismissed.

…………………………….

Asher J