L v Police HC Christchurch CRI 2008 409 11

[2008] NZHC 177

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008 409 011

L

Appellant

v

POLICE

Respondent

Hearing:         21 February 2008

Appearances: E A Bulger for Appellant

K B Bell for Respondent

Judgment:      21 February 2008

ORAL JUDGMENT OF CHISHOLM J

[1]      Having pleaded guilty to obstructing a police constable in the execution of his duty, the appellant was convicted and ordered to pay a fine of $300 and Court costs of $130.  This is an appeal against conviction.  The thrust of the appeal is that the Judge erred when she declined to discharge the appellant without conviction pursuant to s106 of the Sentencing Act 2002.

[2]      The offending arose when the police were asked to assist Child Youth and Family Services to remove two children from the appellant’s address.  It seems that the appellant and his wife were providing foster care to those children with the approval of the children’s mother.  When the CYPS officers and police arrived the

appellant initially stated that the two children were not present.  However, both were

L V POLICE HC CHCH CRI 2008 409 011  21 February 2008

subsequently found sleeping in a rear bedroom, following which the appellant demanded that the children be left alone until his wife returned.  When the CYFS officers and the police attempted to enter the bedroom the appellant became agitated, punched the bedroom door and advanced towards the police.  He was then pepper sprayed and handcuffed.

[3]      The appellant is 49 years of age.  He holds a taxi licence.  Although he has a previous record there have been no convictions for the last 18 years.

[4]      When  imposing  sentence  the  Judge  referred  to  the  circumstances  and proceeded on the basis that whatever caused the police and Ministry to take action they “obviously had good reason to do so and you were not entitled to act in this way”.  She then went on to say that in her view a fine was appropriate and proceeded to impose the fine.

[5]      Although Ms Bulger advanced submissions in the District Court about the consequences of a conviction, she has advanced much more detailed submissions in this Court.  These arise from her inquiries of Land Transport New Zealand about the approach that is likely to be adopted when assessing whether a person’s criminal history is likely to affect whether the person satisfies the “fit and proper person” test.

[6]      Ms Bulger explained that while there can be no assurances either way, and while  there  is  no  suggestion  that  the  current  licence  would  be  revoked,  the appellant’s licence comes up for review in two years time.  She indicated that at that time this conviction is likely to be a highly relevant consideration and that the appellant is the principal breadwinner with the result that his loss of his livelihood (if it occurred) would be a very severe consequences.

[7]      Given that the information provided to me is obviously much more detailed than the information provided to the District Court Judge, it is appropriate for me to consider the matter afresh.  In other words, rather than approaching the matter on the basis that it is an appeal against the exercise of a discretion, I will adopt the four step

approach discussed by Priestley J in Vincent & Anor v Police (High Court, Timaru

Registry, CRI 2006 476 4,5,6, 31 August 2006):

(1)Identify the gravity of the offending by reference to the particular facts.

(2)       Identify the direct and indirect consequences of a conviction.

(3)Determine whether those consequences would be out of proportion to the gravity of the offending.

(4)Decide,   after   completing   the   balancing   exercise,   whether   the discretion conferred by s106 should be exercised.

[8]      In terms of the gravity of this offending it is important to assess the matter in context  and  keep  it  in  perspective.    Obviously this  became  an  extremely tense situation.   While the actions of the appellant should not be condoned in any way, they did not involve any physical obstruction in the sense of touching either CYPS officers or the police.  While the police believed that it was necessary for them to resort to pepper spray, they were anticipating rather than reacting to any physical violence.  In all the circumstances, particularly the obvious tension of the moment, I believe this offending was towards the bottom end of the scale of gravity.

[9]      Because there is no concrete information as to the decision that might be made when the appellant’s licence comes up for review in two years it is not easy to assess the direct or indirect consequences of the offending.   However, given the information provided by Ms Bulger, I am inclined to take a conservative approach in the sense that I cannot exclude the possibility that a conviction might result in the appellant’s licence not being renewed which would  give rise to the loss of the appellant’s livelihood.

[10]     This brings me to the third matter, namely, whether the consequences would be out of proportion to the gravity of the offending.  If the appellant was to lose his livelihood I have no doubt that this would be the case.

[11]     Given those conclusions I am prepared to allow the appeal and discharge the appellant under s 106 of the Sentencing Act.  However, it will be a condition of that discharge that he pay the Court costs of $130 and the sum of $300 to Otautahi Women’s Refuge (being a charity of his choice).

Solicitors:         E A Bulger, Christchurch

Crown Solicitor, Christchurch