G v Police HC Wellington CRI 2006-485-141

[2007] NZHC 1695

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2006-485-141

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 March 2007

Appearances: T D Lancaster for Appellant

C Boshier for Respondent

Judgment:      27 March 2007 at 2 pm

JUDGMENT OF MILLER J

[1]      On 11 October 2006 Mr G   was in a moderately intoxicated condition outside Parliament on Lambton Quay.   As the victim walked along the Quay, he stood before her, blocking her way.   As she tried to step around him, he moved, repeatedly stopping her from walking.   She asked him to let her pass and he responded by grabbing her jacket collar with his left hand, scratching her chest slightly as he did so.  He released her when a member of the public approached him. The victim was not known to him.

[2]      Although he says he does not remember the incident, Mr G   accepted responsibility and pleaded guilty.  When he appeared before Judge Clapham, counsel

GURNEY V NEW ZEALAND POLICE HC WN CRI 2006-485-141 27 March 2007

explained to the Judge that he had previously been discharged without conviction, on a charge of assault.  However, he has no previous convictions.

[3]      A victim impact statement recorded that the incident left the victim in a state of shock.  A letter from a drug and alcohol counsellor explained that Mr G   has a very “conflicted” relationship with his father and experienced bullying at school; this remains a source of distress.   He suffers social phobia, anxiety disorder and panic attacks.   He has used alcohol to deal with his anxiety.   He is said to be progressing, while at an early stage of his treatment.

[4]      Judge Clapham held that it is clearly unacceptable that a member of the public can be approached in this way.   Referring to the counsellor’s report, he convicted Mr G   and sentenced him to nine months supervision with a condition that he abstain from alcohol and unauthorised drugs and a further condition that he attend counselling and assessments as directed by the probation officer.  He was to pay reparation of $300, and it appears that this has been paid.

[5]      On appeal, Mr Lancaster accepts that the conviction and reparation order are appropriate, but takes issue with the sentence of supervision.  He contends that the sentence failed to give proper consideration to the mitigating factors; the assault was at the lower end of the scale and spontaneous, the guilty plea was entered early, there are no previous convictions, the appellant is 38 years old with a good education but suffers from anxiety, depression, alcohol and substance abuse, and the appellant is motivated  to  address  his  illness  and  enjoys  strong  family  support.     Counsel contended that supervision is unnecessary and may not be the best way to achieve rehabilitation.  He noted that the Judge elected to sentence without benefit of a pre- sentence report and contended that contrary to s.46 of the Sentencing Act, the Court could not be satisfied that the sentence of supervision would reduce the likelihood of further offending.  Further, the fact that he had previously been discharged without conviction ought to have had no bearing on the sentence.  Counsel advised that Mr G   has continued with voluntary counselling pending this appeal for which he is to be commended.

[6]      On an appeal against sentence, the question is whether the sentence imposed was clearly excessive.  I accept that the offence was not a serious one.  But even if the previous discharge is ignored entirely, I am unable to accept that a sentence of nine months supervision was excessive.  On the contrary, the Judge clearly had it in mind that the sentence would assist rehabilitation by ensuring that Mr G   refrained from alcohol and drugs and undertook counselling.   There was evidence that he is undergoing counselling but has a significant amount of work to do.  The Judge did not require a pre-sentence report to conclude that supervision was appropriate in the circumstances.  Thus the sentence was both consistent with s.46 and entirely appropriate in circumstances where Mr G   is in need of rehabilitation.

[7]      The appeal is dismissed.

Solicitors:

T D Lancaster, Ngaio for Appellant

Crown Solicitors Office, Wellington for Respondent

F Miller J