James v Police

[2016] NZHC 1678

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000200 [2016] NZHC 1678

BETWEEN

SUSAN JAMES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 July 2016
Appearances:	Appellant in Person B Smith for Respondent
Judgment:	22 July 2016

JUDGMENT OF VENNING J

Solicitors:           Kayes Fletcher Walker, Manukau

Copy to:            Appellant

JAMES v NEW ZEALAND POLICE [2016] NZHC 1678 [22 July 2016]

[1]      Ms James was charged with common assault.   She pleaded guilty to that offence.  It is unnecessary to go into the details of the offending, save to record that it is apparent from the background that there is a degree of history between Ms James and the complainant.

[2]      Ms James has appealed against conviction and sentence.1     She represents herself.   After discussion with  Ms James it is quite apparent that her principal concern is the element of the sentence directing her to carry out alcohol and drug abuse counselling.  She is firm in her stance that at the time of this incident she had not been drinking. As I have pointed out to Ms James the summary of facts did record that she “appeared intoxicated”.   Notwithstanding that, as I say, Ms James remains firm that she was not influenced by alcohol and had not been drinking at the time of this offence.  Further, she has produced a reporting letter from her lawyer who represented her at the time, in which he recorded:

I have contacted community probation on your behalf confirming you were

not drinking at the time of the offending”.

To that extent Ms James’ instructions throughout have been clear.

[3]      Given the authority of the Court of Appeal in R v Kihi a guilty plea may only be set aside or an appeal against conviction allowed where a guilty plea has been entered in very limited circumstances.2     In a case such as this where Ms James admits the assault and only seeks to challenge one of the circumstances recorded leading  up  to  the  assault  there  is  no  basis  for  the  guilty  plea  and  subsequent conviction to be set aside.  I record that to be fair to Ms James she has acknowledged she does not seek that.  The appeal against conviction is formally dismissed.

[4]      That  leaves  the  issue  of  the  sentence  imposed.    Again  Ms  James  has reasonably acknowledged that she has no quibble with the community work or the issue of supervision in general terms but she does not want it recorded that she has been directed to attend alcohol and drug assessment because she remains firm in her

view that she had not been drinking on this evening.

1      NZ Police v James [2016] NZDC 13006.

2      R v Kihi CA395/03, 19 April 2004.

[5]      After further discussion with Ms James and Mr Smith I have reached the following position.

[6]      The sentence of community work and supervision should remain but rather than it being a firm direction from the Judge that alcohol and drug assessment counselling might be required, that is best left for the assessment of the probation officer in his or her further discussion with Ms James.   I have come to that view given the reporting letter from Mr Claasen and Ms James’ responsible approach to the matter in Court this morning.

[7]      For those reasons the appeal against sentence is allowed to the extent that the sentence imposed by the Judge is replaced with the following sentence.  Ms James is to carry out 60 hours community work.   She is also to undertake nine months supervision with standard conditions, together with any other special conditions that

the probation officer may direct.

Venning J