Kumar v Police
[2014] NZHC 1659
•15 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-111 [2014] NZHC 1659
BETWEEN RANISH KUMAR
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 July 2014 Counsel:
M P Hislop for the Appellant
R K Thomson for the RespondentJudgment:
15 July 2014
JUDGMENT OF BROWN J
This judgment was delivered by me on 15 July 2014 at 5.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, Auckland
Counsel: M P Hislop, Auckland
KUMAR v POLICE [2014] NZHC 1659 [15 July 2014]
Introduction
[1] On 19 March 2014 the appellant was convicted by Judge B A Gibson in the
District Court at Auckland of four offences:
(a) On 1 September 2012 resisting a constable acting in the execution of his duty in contravention of s 23(a) of the Summary Offences Act
1981;
(b) Having been sentenced to home detention on 14 May 2012, on
1 September 2012 breaching, without reasonable excuse, a special condition, namely not to consume alcohol in contravention of s 80S of the Sentencing Act 2002;
(c) On 1 September 2012 assaulting Constable Pearce with intent to obstruct him in the execution of his duty in contravention of s 192(2) of the Crimes Act 1961; and
(d)On 1 September 2012 assaulting Sergeant Lindner with intent to obstruct him in the execution of his duty in contravention of s 192(2) of the Crimes Act 1961.
[2] On 7 May 2014 the appellant was sentenced by Judge Gibson to 12 months imprisonment on the two charges of assault on police and three months imprisonment on the other two charges, all sentences to be served concurrently.
[3] The appellant appeals against his convictions and sentence.
Background facts
[4] The facts are recorded in detail in the oral judgment of Judge Gibson dated
19 March 2014.
[5] In brief, on the evening of 1 September 2012 the Police received a number of calls from the appellant’s sister who claimed that the appellant was acting aggressively towards other persons at the appellant’s family home where he was
serving a sentence of home detention and that she believed he had been consuming alcohol.
[6] Sergeant Lindner and Constable Pearce, together with a female constable, went to the appellant’s home, observed that the appellant smelled of alcohol and requested him to accompany them outside to speak with them privately rather than in front of his family. At that point the appellant stood up and began shouting. He was asked several times to step outside which he refused to do. The events which followed are recorded in the following passages from the judgment of 19 March
2014:
[12] At that point, on the constable’s evidence, Constable Pearce stepped forward in an attempt to lead Mr Kumar from the house but the evidence of both constables was that the defendant lunged towards Constable Pearce and attempted to strike him in the head. Constable Pearce said he was able to parry that and push Mr Kumar back.
[13] Once that happened, Mr Kumar then, on Constable Pearce and Constable Lindner’s evidence, charged at the constables by lowering his head. Constable Pearce was able to hold him and Constable Lindner was pushed on to a sofa, one of three that were present in the sitting room at the defendant’s home.
[14] There was a struggle. Constable Pearce was able to get the defendant into a head lock. The defendant was struggling while he did that and was hitting him and the defendant managed to get a hold of a taser holster on the constable’s belt. Constable Pearce said he nearly broke his way out of the headlock.
[15] When Constable Lindner was able to right himself, he grabbed the defendant’s right arm. The defendant kept struggling and tried to grab a set of handcuffs that Constable Pearce had in his hand as he intended to try and cuff the defendant and, on the constable’s evidence, there was a melee during which he struck the defendant as he was trying to grab a holster and use it as a weapon. The struggle continued even when the constable got the defendant outside.
…
[17] The defendant continued to be aggressive and started to say that he wanted to speak to a lawyer, swore at the constables using various profanities and started to spit at them, insulting them with racial insults and it took some time before he could be calmed down.
[18] In fact, Constable Pearce said that he had to place, at one point, his boot on the defendant’s head because the defendant was insistent on spitting at the constables and he was spitting blood, having been injured in the fracas that had taken place in the house and he managed to spit blood and spittle onto the constable’s trousers.
District Court decision
[7] The decision recites the police evidence quoted above and then addresses the evidence for the appellant:
(a) His father’s evidence denying that the appellant had consumed any alcohol that evening, asserting that the police had assaulted the appellant and that the witness had objected saying it was “not on”;
(b)The appellant’s mother whose evidence was consistent with that of her husband and who said that she could not understand why her daughter had telephoned the police three times; and
(c) The appellant’s aunt whose evidence was similar to that of the appellant’s parents to the effect that the two constables had handcuffed the appellant and, as she said, “started smashing him”.
[8] The Judge’s findings on the evidence are captured in the following
paragraphs:
[41] There was no reason for the police to be there other than attending a scene as a result of an emergency call, and that call was made on three occasions by the defendant’s sister. Yet the defendant’s parents would have the Court believe that nothing at all out of the ordinary was happening in the home when the police arrived. It is apparent that the parents did not want the police to intervene, were well aware of the condition that the defendant ought not to be consuming alcohol, and that they attempted to minimise the need for the police to be present. Because of that matters escalated as a result of the defendant’s lack of co-operation.
[42] I accept the evidence of the constables that they wanted the defendant to leave the sitting room. They would not have wanted to effect an arrest in the presence of three other persons in a confined space. They had had previous dealings with the defendant. He was drinking. His sister has given evidence that he becomes aggressive when he was drinking, and I am satisfied therefore that they did ask him to leave and that he would not do so.
[43] That then means that in effect I have accepted the evidence given by the police as to what occurred. There was no suggestion that the constables were not acting in the execution of their duty, they were attending a property as a result of an 111 emergency call. I am quite satisfied that the assaults on the police happened in the way they described. Regrettably the defendant
was injured, but he has only himself to blame because of the way in which he attempted to resist the constables performing the execution of their duty.
[44] I am satisfied that he did charge Constable Pearce when Constable Pearce was attempting to effect an arrest, and I am satisfied that as a result of that the constable had to try and restrain the defendant and a general melee erupted between the three of them. No doubt that would have been distressing for the defendant’s parents and to his aunt.
[9] Consequently the Judge concluded that the appellant was guilty of the charge of resisting Constable Pearce in the execution of his duty and that the appellant had assaulted Sergeant Lindner and Constable Pearce with the intention of obstructing them in the performance of their duty.
[10] In his notes on sentencing on 7 May 2014 the Judge noted the victim impact reports, the appellant’s history of offending running to five pages of previous convictions, the appellant’s insulting behaviour and the spitting of blood at the officers, which he regarded as an aggravating feature in the incident, and the fact that the Police had been called to the appellant’s home on at least 18 previous occasions.
[11] The pre-sentence report recommended community detention which was a sentence lower on the sentencing scale than that which the appellant was serving at the time of the incident. The Judge rejected that view as completely inappropriate and concluded that a sentence of imprisonment was necessary. He took a starting point of 10 months imprisonment, which took into account the aggravating features to which he had referred, and applied an uplift of two months to reflect the appellant’s previous convictions. Consequently he imposed an end sentence of
12 months imprisonment on the lead charges of the assault on police, with three months imprisonment on the remaining two charges, all to be served concurrently.
Grounds of appeal
[12] The grounds of appeal, which were filed pursuant to a direction of Woolford J
in a callover minute dated 13 June 2014, stated as follows:
(i) The Appellant appeals against his conviction on the basis that the District Court Judge did not put any weight on the witnesses for the defence and further that the Judge when considering the question whether in fact the Police used reasonable force when arresting the
Appellant, he did not take into consideration the injuries sustained by the Appellant at the time.
(ii) The Appellant appeals against the sentence in that it was manifestly excessive and that no consideration was given to a community based sentence, which under the circumstances would have been appropriate.
Approach to appeal
[13] As the proceedings were commenced before 1 July 2013 the Summary
Proceedings Act 1957 applies pursuant to s 397 of the Criminal Procedure Act 2011.
[14] The appeal against conviction is a general appeal under s 115 of the Summary Proceedings Act 1957 and the Court may take any of the courses provided for in s 121(2). The appeal is conducted as a “rehearing”. Accordingly I proceed on the basis explained by the Supreme Court in Austin, Nichols & Co Inc v Stichting
Lodestar1 which means that:
(a) Mr Kumar bears the onus of satisfying me that Judge Gibson’s
judgment was wrong;
(b) I am required to come to my own view on the merits of the appeal;
(c) If I disagree with the conclusion reached by Judge Gibson I should allow the appeal;
(d) I may not necessarily find Judge Gibson’s reasoning persuasive.
Nevertheless I may reach the same conclusion but for different reasons. It is the correctness of the decision reached by Judge Gibson rather than the reasoning he followed to reach the decision which is of paramount importance; and
(e) When questions of credibility arise Judge Gibson may have had an advantage when assessing witnesses.
1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[15] The appeal against sentence is also a general appeal. However s 121(3)
provides that the Court may:
(a) confirm the sentence; or
(b)if the sentence is one which is clearly excessive or inadequate or inappropriate, quash the sentence and pass such other sentence warranted in law (whether more or less severe) in substitution therefor.
Appeal against conviction: submissions
[16] For the appellant it was submitted that, as no evidentiary breath test was carried out to determine whether the appellant was under the influence of alcohol that, in light of the competing testimony, the Judge came to an erroneous conclusion in finding that the police had proved the appellant’s intoxication beyond reasonable doubt.
[17] It was further submitted that the basis of the appellant’s conviction for resisting arrest and assault on a police officer only arose due to unreasonable force used against the appellant in seeking to arrest him. While the appellant accepts that he used force in resisting arrest, the submission was made that this force was only used once the police officers had undertaken to arrest him by using excessive force.
[18] On the issue of breach of the non-alcohol condition, the police submitted that proof of breach does not require any particular formal procedure to be taken. In this case there was an abundance of evidence that the appellant had been consuming alcohol, having regard to his apparent state of intoxication namely:
(a) The appellant’s sister gave evidence about his unusual behaviour
when drunk;
(b) The evidence of the police officers who attended the scene;
(c) The contemporaneous statement of the appellant’s father, recorded in Sergeant Lindner’s notebook, that the appellant had acted the way he did because he was intoxicated;
(d)Watch house officer Waqasokolala who noted that the appellant was intoxicated and smelled of alcohol on the custody/charge sheet; and
(e) Doctor Wiles who examined the appellant at 11 pm that evening and recorded that he smelled strongly of alcohol and was only partially coherent.
[19] On the charges of assaulting and resisting police Ms Thomson pointed out that there was a direct contradiction in the evidence of the police officers on the one hand and the appellant’s parents and aunt on the other. Having observed all the witnesses giving evidence over two days of hearing the Judge concluded that:
(a) the reliability of the evidence of the appellant’s parents had to be considered in light of their denial that the appellant had consumed alcohol (a denial the Judge rejected);
(b)the appellant’s sister had called the police three times that evening whereas the appellant’s parents had continued to deny that there was any disturbance at the address. The Judge concluded that the appellant’s parents were attempting to minimise the need for the police to be present;
(c) the attending officers’ evidence that the appellant became aggressive when they asked him to leave the living room was consistent with his sister’s evidence that he would become aggressive when drinking; and
(d)the Judge accepted the attending officers’ evidence of events that evening, in particular that the appellant had assaulted them while resisting his arrest.
[20] The police submission was that the ground of appeal was an attack on the Judge’s finding that the police witnesses were more credible than the appellant’s parents and aunt and submitted that an appellate court should be cautious when revisiting credibility findings made by a first instance fact-finder.
Decision
[21] While the ground of appeal is framed in terms of the Judge failing to put any weight on the evidence of the witnesses for the defence, the reality is that, given the plainly contradictory evidence, the issue for the Judge was a matter of credibility.
[22] The Judge had the advantage of hearing and observing the witnesses. He came to a clear conclusion that the evidence of the police officers was to be preferred.2
[23] I can find no error in the Judge’s approach to the evidence before him. Indeed, I note that he expressly rejected the evidence that the appellant had not been consuming alcohol and noted that that finding called into question the reliability of the account presented by the appellant’s witnesses of what happened on that evening.3 He noted that the appellant’s parents would have had the Court believe that nothing at all out of the ordinary was happening at the home when the police arrived. It was apparent to him that the parents did not want the police to intervene, being well aware of the condition that the appellant ought not to be consuming
alcohol.
[24] Nor is there anything in the submission that the Judge did not take into consideration the injuries sustained by the appellant in the course of the incident. The Judge noted that, in the course of the melee, the appellant was struck (at [15]) and that at one point it had been necessary for Constable Pearce to place his boot on the appellant’s head for the reason that the appellant was spitting blood at the constables, the appellant having been injured in the fracas ([18]). The Judge also referred to the evidence of the police doctor and the nature of the injury suffered to
the appellant’s eye: [21]-[22].
2 See [42]-[45] at [8] above.
3 At [40], see [8] above.
[25] In my view no error has been demonstrated in the Judge’s decision. On the basis of my own consideration of the matter the Judge’s conclusion was the correct one.
Appeal against sentence: submissions
[26] Mr Hislop submitted that the sentence of 12 months imprisonment was manifestly excessive when considering the circumstances of the offending, the circumstances of the appellant and sentences imposed for instances of similar offending. He argued that the Judge failed to fully consider the applicability of a community-based sentence and that the Judge took into account an irrelevant matter when he stated that it was time that the family and the police were given a rest from the appellant.
[27] The appellant accepted that a starting point of imprisonment was in alignment with cases of similar offending but contended that, in line with the case of Brackenridge v Police,4 the appropriate starting point should have been a short term of imprisonment rather than the 10 months which the Judge selected.
[28] Mr Hislop also submitted that the Judge failed to give adequate consideration to the mitigating factors in the form of the appellant’s involvement in educational studies and his familial circumstances whereby he is the sole guardian of a young son. He argued that a community-based sentence was more in line with the culpability of the appellant and would allow him to continue his studies and care for his son on a day to day basis.
[29] The police supported the 10 month starting point emphasising the aggravating feature of the offending being the attack on the constables in the course of their duty and noting that the relevant charges were under the Crimes Act 1961 rather than under the Summary Offences Act as in the cases of Brackenridge and Mehana v Police.5 The police further submitted that an uplift of 25 per cent6 for the
appellant’s previous convictions for violence was also clearly justified, drawing
4 Brackenridge v Police HC Rotorua CRI-2011-470-017, 22 July 2011.
5 Mehana v Police HC Auckland AP 65/96, 10 June 1996.
6 In fact it was 20 per cent.
attention to the appellant’s history of breaching orders and his history of actual or
threatened violence.
Decision
[30] The pre-sentence report had recommended a sentence of community detention. The Judge rejected that recommendation (which was lower on the sentencing scale than the sentence of home detention which the appellant was serving at the time of the incident) as completely inappropriate, noting the undesirability of community detention being served at the home where the incident took place and where the police had been called on a number of occasions. The Judge considered that a sentence of imprisonment was necessary bearing in mind the sentencing principles of deterrence, the need to instil responsibility and the need to denounce the appellant’s conduct.
[31] I consider that the Judge was correct in his conclusion that the appropriate response to the conduct, having regard to the appellant’s previous history, was a sentence of imprisonment.
[32] However I consider that the starting point chosen by the Judge of 10 months was substantially higher than was necessary or appropriate. In R v Taurere7 Wylie J noted that there is no tariff for offending against a police officer. He said:
There is no tariff case for such offending. It appears that imprisonment for terms ranging from one to three months has been imposed for medium gravity assaults such as kicking and head-butting, but that more minor assaults such as spitting or pushing which are one-off, or which occur in the context of other serious offending, are more likely to receive a sentence of periodic detention, supervision, community work, a fine, or a minimal period of imprisonment. The various sentences are undoubtedly coloured by the circumstances and the context in which the offending took place.
[33] In his footnote to that paragraph the Judge noted the variety of sentences that have been imposed reflecting the circumstances and the context of the offending:
Taiapa v R [2011] NZCA 48 ( three months for assaulting a Police Officer); R v Chiyabi [2008] NZCA 10 (three months for head butting a Police Officer); Cooper v Police HC Auckland CRI 2009-404-261, 9 November
2009 (one month imprisonment for kicking an officer in the chest and lower body); Einan v Police HC Hamilton CRI 2005-419-20, 23 February 2005 (seven days’ imprisonment for spitting at a Police Officer); Gurney v Police HC Auckland AP116/96, 26 November 1996 (three months’ periodic detention for kneeing a Police Officer in the groin and two months’ periodic detention for biting a Police Officer’s hand); Wall v R [2010] NZCA 494 (12 months’ intensive supervision for spitting at a Police Officer); Rameka v Police HC Whangarei CRI 2010-488-050, 3 December 2010 (150 hours’ community work for assault charge, no details given); Waata v Police HC Nelson AP10/02, 27 June 2002 ($400 fine for pushing a Police Officer).
[34] Wylie J noted as the most helpful authority that of Barnes v Police.8
Mr Barnes was sentenced to six months imprisonment after conviction on a charge of assaulting a police officer. He was intoxicated at the time of his arrest and he refused to walk to the patrol car whereupon he was carried to the car by a police officer and another person. He kicked out at the police officer hitting him several times. Ronald Young J concluded that the sentence of six months imprisonment was manifestly excessive. While acknowledging that what had happened should not be undervalued, he noted that there was no report of any injury to the police officer nor any victim impact report. He quashed the sentence of six months imprisonment and substituted a sentence of three months imprisonment cumulative on other sentences imposed on the offender.
[35] In the present case the offending is significantly more serious than in Tauere and somewhat more serious than in Barnes. The appellant attempted to head butt and punch the policemen and hit them several times as they attempted to restrain him. There were victim impact reports from both Sergeant Lindner and Constable Pearce. The former stated that it was not often in one’s career that one feels like one is fighting for one’s life.
[36] I consider that Mr Hislop’s acknowledgement that a short term of imprisonment was an appropriate starting point was appropriately made. I do not consider that anything less than imprisonment was appropriate having regard to the circumstances of the present case. However I consider that the starting point of 10 months was clearly excessive. In my view the appropriate starting point was a period of four months imprisonment with an uplift of one month to reflect the
appellant’s previous convictions for violence which would result in an end sentence
of five months imprisonment.
[37] I am mindful of Mr Hislop’s submissions about the implications of a term of imprisonment for the appellant’s studies and the day to day care of his child, the practical difficulties associated with which were explained in the affidavits of both the appellant’s mother and father. However, having regard to previous breaches of home detention and the appellant’s violent offending, I do not consider that it is appropriate to commute the sentence of imprisonment to one of home detention.
Disposition
[38] The appeal against conviction is dismissed.
[39] The appeal against sentence is allowed. The sentence of 12 months imprisonment is quashed and a sentence of five months imprisonment is substituted in respect of each of the two charges of assaulting a police officer. The sentences of three months imprisonment on the other two charges remain, with all sentences to be
served concurrently.
Brown J
7
4
0