Hrabchak v Police - [2017] NZHC 2229

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-28 [2017] NZHC 2229

BETWEEN
SHARON HRABCHAK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 September 2017

Appearances:

Appellant in person
K J MacNeil for the Respondent

Judgment:

14 September 2017

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:
K J MacNeil, Crown Solicitors, Whangarei

Copy to: Appellant

HRABCHAK v NEW ZEALAND POLICE [2017] NZHC 2229 [14 September 2017]

Introduction

[1] The appellant, Sharon Hrabchak, was convicted of one charge of wilful damage1 and one charge of trespass2 following a Judge-alone trial. The charges related to a single incident of entering her neighbour’s property, in respect of which she had previously been issued with a trespass notice, and damaging her neighbour’s air conditioning unit.

[2] On the wilful damage charge she was ordered to pay reparation of $250 to her neighbour and $2,350 to her neighbour’s insurer. In respect of the trespass charge, she was convicted and discharged.

[3] Ms Hrabchak now appeals against the convictions and sentence. She was self- represented at trial and remains self-represented on the appeal.

Background

The offending

[4] Ms Hrabchak resides at 37A Montgomery Avenue in Onerahi, Whangarei. The complainant, Penelope Paru, is her neighbour, residing at 37 Montgomery Avenue.
37A Montgomery Avenue is Ms Hrabchak’s own home, having formerly sold her property in Auckland and moved to the Whangarei District.

[5] The Crown case was that there had been ongoing difficulties between

Ms Hrabchak and her neighbour, Ms Paru, which culminated in Senior Constable Penney serving Ms Hrabchak with a trespass notice on 29 November 2016. That notice required Ms Hrabchak to stay off the property at 37 Montgomery Avenue. Senior Constable Penney says the consequences of breaching the trespass notice were
explained to Ms Hrabchak and that she understood them.

1 Summary Offences Act 1981, s 11(1)(a). This offence carries a maximum sentence of three months’ imprisonment or a fine not exceeding $2,000.
2 Trespass Act 1980, s 4(4). This offence carries a maximum sentence of three months’
imprisonment or a fine not exceeding $1,000; see Trespass Act, s 11(2)(a).

[6] The Police say that on or about 12 December 2016, at 10.00am, Ms Hrabchak proceeded from her address to the rear of Ms Paru’s property at 37 Montgomery Avenue where she approached the air conditioning unit next to the rear stairs of the address. The Police allege that, using a screwdriver or other similar item, she stabbed the air conditioning unit, intentionally damaging it.

[7] A technician subsequently checked the air conditioning unit and found it to be irreparable. Fins inside the unit had been damaged by a sharp instrument and were unable to be fixed.

Judge-alone trial

[8] Ms Hrabchak’s Judge-alone trial took place before experienced District Court Judge de Ridder in the Whangarei Court on 7 July 2017. Judge de Ridder delivered an oral judgment in which he found Ms Hrabchack guilty on both charges.3

[9] The prosecution called four witnesses: Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 2229
Decision Date: 14 September 2017

CaseChat Overview and Summary

The appeal was brought by Sharon Hrabchak against her convictions for wilful damage and trespass, as well as the sentence imposed. The appellant was convicted of wilfully damaging her neighbour's property and trespassing on her property despite being served with a trespass notice. She was ordered to pay reparation to her neighbour and her neighbour's insurer. The appellant contended that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice had occurred. She sought to introduce new evidence on appeal, challenging the reliability of the eyewitness evidence and her ability to commit the damage due to arthritis. The court found that the new evidence was not fresh, credible, and cogent enough to warrant admission on appeal. The court concluded that the Judge had properly directed himself as to the law and the evidence, and dismissed the appeal against conviction. The appeal against sentence was also dismissed, as the court found that the Judge was entitled to impose a reparation order under the Sentencing Act. The court directed the Crown Solicitor to explain the procedures available to the appellant to address her financial difficulties in relation to the reparation order.

Orders