K v Police HC Blenheim CRI 2007 406 4

[2007] NZHC 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2007 406 04

BETWEEN  K

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         21 August 2007

Counsel:        Appellant in Person

C P Stevenson for Respondent

Judgment:      21 August 2007

ORAL JUDGMENT OF WILD J

[1]      On  5  June  Judge  Zohrab  fined  Mr  K    $1,000  for  using  offensive language.  That is the maximum penalty.  Mr K   appeals on the ground that that sentence was manifestly excessive.

[2]      Just before midnight on Saturday 2 June Mr K   gave the fingers and yelled out “fuck off” to a passing Police patrol car in Blenheim.  He was drunk.  The patrol car stopped.   A police constable warned Mr K   about his obscene language.  Mr K   then told the constable he was a “fucking wanker” and was duly arrested.   Having sobered up in the cells at the Police Station overnight, Mr K   pleaded guilty by letter on Sunday morning.  He was convicted and fined the following Tuesday, 5 June, by the Judge.

[3]      The  Judge  appears  to  have  imposed  the  maximum  fine  because  of  Mr

K  ’s  criminal  record.    The  Judge  commented  “he  has  a  large  number  of previous convictions for exactly the same thing”.

K V NEW ZEALAND POLICE HC BLE CRI 2007 406 04 21 August 2007

[4]      For  three  reasons  I  allow  this  appeal.    First,  in  my  view  the  maximum available fine was manifestly excessive for this offending.  This is not an instance of the worst offending of its type.  An offensive word was used twice to police officers. There is nothing to indicate that anyone else - any member of the public - was present at the time.  I contrast this to a situation where such language, or worse, is used in a public place where women and children are present.

[5]      Second, the Judge ought to have given Mr K   a discount to recognise his guilty plea entered at the first opportunity.  While such a discount is not inevitable, the Court of Appeal has repeatedly indicated that a discount should be given except in exceptional circumstances.  Examples of such exceptional circumstances include where the plea was entered at a late stage in the face of an overwhelming Crown case.  See for example R v Beri [1987] 1 NZLR 46 (CA) where a guilty plea was followed by an attempt to change the plea, which resulted in a hearing taking place. See, for an example of that, R v May CA350/91 2 March 1992.   None of those situations apply here.  While it may have been clear to Mr K   that he had no defence to the charge, that is often the case when a guilty plea is entered.

[6]      Third, the Judge’s comment that Mr K   had a large number of previous convictions for exactly the same thing is not accurate.   He had five previous convictions for obscene or offensive language, two back in 1986, the last three in

2001 or 2002.  Certainly Mr K   has an appalling criminal record, 93 recorded offences since he first appeared in the Youth Court in 1982.  I accept several of those are for broadly related offending, in particular four for offensive or disorderly behaviour, but the Judge’s comment is inaccurately harsh in respect of Mr K  ’s record for using foul language in public.

[7]      A recent indicator of the level of fine appropriate is provided by the case of Waaka v Police HC DUN CRI 2007 412 12 6 June 2007, dealt with by Panckhurst J in the High Court in Dunedin on 6 June this year.  Mr Waaka had stolen fruit and a newspaper from an Otago University residential hall.   Some weeks later he stole another newspaper, and when spoken to by the manager of the hall he used what the Judge described as grossly offensive language.  Unlike Mr K  , Mr Waaka did have a large number of previous convictions for offensive language, dating from the

1980s.  He was fined in the District Court $200 on each of two charges of theft, $500 for offensive language and ordered to pay Court costs of $130 on each charge.  That is a total fine of $900 and total costs of $90.  On appeal Panckhurst J discharged him on the theft charges and reduced the fine for offensive language to $300.  The Judge commented that the District Court was required to take into account Mr Waaka’s ability to pay a fine, and that given Mr Waaka’s limited income the amount of the fines imposed was out of all proportion to the seriousness of the offending.

[8]      I note that Mr K    has told  me this morning that  he is receiving an invalid’s benefit that leaves him with about $30 a week of discretionary cash.

[9]      As indicated, I allow this appeal and quash the fine imposed by the Judge.  I substitute a fine of $300.  The Judge’s order that Mr K   pay Court costs in the sum of $130 stands.

Solicitors:

Crown Solicitor, Blenheim for the Respondent