Hooper v Police

[2012] NZHC 3125

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-31 [2012] NZHC 3125

PETER NORMAN PAUL HOOPER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 November 2012

Counsel:         Appellant in Person

N M Graham for Respondent

Judgment:      22 November 2012

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1]      Peter Norman Hooper was convicted of an offence contrary to s 112 of the Telecommunications Act 2001 in that in using a telephone he used obscene language. Mr Hooper  rang  the  Police  at  Napier  on  31 March 2012  protesting  about  the circumstances under which a young man had been shot by the Police in an incident at Fernhill.

[2]      The Judge found at the defended hearing that Mr Hooper had said to a Police civilian employee (when he rang the Police) that the officer involved in the shooting was “a fucking murdering bastard who had to take responsibility for his actions”. Further,  he  said  when  invited  to  speak  to  the  senior  Police  officer  to  make  a

complaint that he “wanted to speak to the fucking cunt who had killed the deceased”.

PETER NORMAN PAUL HOOPER V NEW ZEALAND POLICE HC NAP CRI 2012-441-31 [22 November

2012]

[3]      The Judge was satisfied in the circumstances that Mr Hooper had committed an offence under the Telecommunications Act 2001 that when he used a telephone, he used obscene language.   Subsequently Mr Hooper was sentenced to 150 hours community work.  He submits that sentence is manifestly excessive.

[4]      No copy of the sentencing notes of the Judge is available.  The Judge did, however, subsequent to the appeal being filed, provide a brief notice to what he believed were the relevant factors he took into account.  The appropriate course is for me to consider the matter afresh but give acknowledgement for the District Court Judge’s sentence.   Ultimately, however, given there are no sentencing notes, the proper course is for me to assess what I consider is a proper sentence.

[5]      Section 112 of the Telecommunications Act 2001 is not designed to censor unwanted or unwelcome comments.  Mr Hooper was not charged with expressing his view about the constable’s actions, he was charged with using obscene language when he did so.  It is important to keep that idea in mind when imposing a penalty here.

[6]      The obscene language made by Mr Hooper, while not excusable, came as a result of him being upset with the death of a young man.  And so there was a context for the remark.  The remarks were not made directly at the constable who had shot the young man and so in that sense were not aggravating.

[7]      At the hearing of the case, Mr Hooper told me, and the Crown accepted, that he had apologised to the female receptionist that he had sworn at.   He again apologised today before this Court saying he had not intended to upset her but had wished to communicate his upset and anger about the shooting.

[8]      Mr Hooper does  have something of a past record  of offending.    He has offended for almost 30 years.  But it is proper to acknowledge that his last offending was in 2007 and his only sentence of imprisonment was in 1992.  I do not think a sentence of 40 per cent of the maximum of community work was at all justified here. I had intended to impose a modest sentence of community work of 20 hours but that is below the minimum statutory threshold.

[9]      In  the  circumstances  I  think  a  modest  fine  is  appropriate.    I  quash  the sentence of 150 hours community work and impose instead a fine of $200.  The fine is modest because of Mr Hooper’s modest financial circumstances which must be

reflected in the amount of the fine.  He will also pay Court costs of $132.89.

Ronald Young J

Solicitors:

P N P Hooper, 1222 Aropaoanui Road, Tongoio 4181, Hawkes Bay

N M Graham, Elvidge & Partners, Napier, email:  [email protected]