K v Police HC Palmerston North CRI-2009-454-46

[2010] NZHC 223

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2009-454-46

AND BETWEEN            K

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 March 2010

Appearances: Appellant in person

E C Killeen for Respondent

Judgment:      9 March 2010 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      Mr K   appeals against a sentence of 40 hours community work which was imposed in the District Court on 2 November 2009 on a charge of assaulting a constable in the execution of his duty and a further count of possession of cannabis. Concurrent sentences of 40 hours community work were imposed on each of those charges.

[2]      When the appeal was first called before me on 15 December 2009, Mr K   did not appear.  There was no explanation then of why there was not an appearance and I dismissed the appeal for want of prosecution.   Mr K   has subsequently explained that tragically he was attending his son’s funeral on that day.   That is clearly good reason for his non attendance and in the circumstances I consider that a rehearing should be granted.  I accordingly recall the judgment that was delivered on

15 December and I have now considered the matter anew.

K V NEW ZEALAND POLICE HC PMN CRI-2009-454-46  9 March 2010

[3]      The circumstances were that Mr K   was self represented in the District Court when he appeared on the two charges on which he was sentenced and also a charge of breach of bail.   The judge convicted him on the count of assaulting a constable acting in the execution of his duty.  He noted that Mr K   was not in a position to pay a fine because he was already $2,000 in arrears in terms of fines.  He decided that the only other option put forward by Mr K  , seven days jail, was not warranted.   Accordingly he was sentenced to 40 hours community work on that charge.

[4]      There was also a charge of possession of cannabis and on that count too, 40 hours community work was imposed to be served concurrently.   The judge then turned to the breach of bail charge.  Mr K   was charged that he had failed to attend Court when bailed to appear on 16 September.  Mr K   explained that in the advice that had been given to him he had been advised that the date was 11 September and he had appeared on that day.  The judge accepted that Mr K   was correct on that and accordingly he gave leave to the prosecution to withdraw the charge of failing to answer bail.

[5]      Mr K   then raised with him the suggestion that he take ten hours off his community work for the time spent in jail after arrest on the breach of bail charge. Mr K   said that he had had served about one full day and a half to three quarters of a day.  The judge said however that he could not give any less than the community work that he had already given.

[6]      This morning Mr K   again renews the request that he be given something less than the 40 hours community work to recognise that fact that he was under arrest on a charge which was later withdrawn.  He also says in support of that that some money  was  taken  from  him  by  police  and  was  subsequently  handed  to  Inland Revenue which Mr K   said was necessary to get a certificate of fitness for his vehicle which he needed for work.  He also says that he had a child born while he was in jail on the breach of bail charge.

[7]      As I have explained to Mr K  , those matters are not ones that I can address directly.   Mr K   accepts that but asks that they be taken into account in dealing with this appeal.

[8]      As counsel for the Crown submits in her written submissions the question before the Court must be whether the sentence is manifestly excessive in all of the circumstances.    Having  regard  to  the  hierarchy  of  sentences  in  s 10A  of  the Sentencing Act 2002 a sentence of discharge or order to come up for sentence if called upon would not have been appropriate to the charges.  A sentence of fine or reparation was not available for the reasons which the judge gave and he clearly considered that option.   So the next and only sentence available was one of community work.  The minimum sentence that could be imposed was 40 hours under s 55 of the Sentencing Act.   That was imposed on two counts and was imposed concurrently.  I consider that the sentence was a modest one and could by no means be described as manifestly excessive.

[9]      Mr K   is correct that the judge had imposed that sentence before taking into account the breach of bail matter and the withdrawal of that charge.  But in the circumstances, given that the sentence which he had imposed was a modest one, I do not consider that he should have taken the further step which Mr K   now says is appropriate of convicting and discharging, or perhaps a short period in jail, on those counts.

[10]     I consider that the sentence was an appropriate one.  It has not been shown to be manifestly excessive.   Mr K  ’s arrest on breach of bail, when he had in fact appeared on the date he understood he had been bailed to, was unfortunate but it is not a matter that I can properly address by reducing a sentence which was, on its terms, properly imposed and not manifestly excessive.

[11]     The appeal is accordingly dismissed.

“A D MacKenzie J”

Solicitors:            Appellant in person, Matthew Simon K  , 46 Kelvin Grove Road, Palmerston

North
Crown Solicitor, Palmerston North for Respondent