M v Police HC Auckland CRI 2008-404-414

[2009] NZHC 528

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-414

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 May 2009

Appearances: D Hoskin for the Appellant

S Herdson for the Respondent

Judgment:      11 May 2009

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr D Hoskin, Barrister, North Shore City

Ms S Herdson, Meredith Connell, Office of the Crown Solicitor, Auckland

M V NEW ZEALAND POLICE HC AK CRI 2008-404-414  11 May 2009

[1]      Ms M   has appealed against her sentence on two charges to which she pleaded guilty.   One was assaulting a police constable with intent to obstruct him.  The other is intentional damage.

[2]      The sentence imposed was 12 months supervision with three conditions as follows:

a)        Attend an alcohol assessment and programme. b)       Attend a stopping violence programme.

c)        Counselling as may be directed by the probation officer.

[3]      On appeal it was accepted that a sentence containing some punitive element was  justified  having  regard  to  the  charges  and  to  the  appellant’s  previous convictions.  There are three previous convictions for assaulting the Police (two on one occasion), a conviction for resisting the Police and a conviction for resisting Police.   There are also two convictions in 2000 and 2004 for driving with excess blood or breath alcohol.   Alcohol played a part in these offences.   The appellant acknowledged that to be the case.

[4]      Central to the appeal was the submission that relevant information had not been put before the sentencing Judge.  This included the following: Ms M   had been assaulted by her partner during the incident which led to the intentional damage charge; the partner is himself facing an assault charge; Ms M   paid reparation for the damaged television; she clearly has a support network because her father and brother were at Court to support her.  There are other matters but I think that captures the essence of it.

[5]      There was no challenge for the Crown to the submissions from Mr Hoskin that this information was not before the Judge.   It seems clear that this occurred because the matter was handled by a duty solicitor who, no doubt, was dealing with a large number of matters and Ms M  ’s case was called again for plea and sentence later in the day.  It does appear that Ms M   did not even see the

summary of facts and may not have been fully aware of the full extent of the charges she was actually pleading guilty to (although that has not led to appeal against the conviction).

[6]      I therefore proceed to deal with the appeal against sentence on the basis that the sentence could not be held to be manifestly excessive based on the information that was in fact before the Judge.  But because the Judge was not fully informed, it is appropriate for me to consider sentence, in essence, de novo.  In other words, there was no error of principle by the sentencing Judge.

[7]      Reviewing this matter de novo I am of the view that a sentence involving an appropriate punitive element is necessary.  This is acknowledged for the appellant. And it flows from the nature of the offences, the facts surrounding them, and the fact that on previous convictions the sentence was that Ms M   come up for sentence  if  called  upon  –  being  previous  sentences  involving  assault  of  police officers or similar offences.

[8]      I also consider that the conditions imposed by the Judge are reasonable ones in the circumstances.   Amongst other things, Ms M   acknowledged that alcohol played a part in what occurred.  Ms M   in fact said in her affidavit that she accepted that she had an issue with alcohol in her relationship with her partner.  Although the point she then made was that the Judge had not been told by the duty solicitor that she had an alcohol problem.

[9]      I nevertheless consider that Ms M   is entitled to credit for the matters mentioned towards the beginning of this judgment.  This includes the fact that she had,  she  says,  been  assaulted  by her  partner,  the  fact  that  she  voluntarily paid reparation for what appears to be the most significant property damage (a television) and  there  does  appear  to  be  family  support,  which  is  important.    In  order  to encourage Ms M  , as far as I reasonably can, I consider that the appropriate sentence should be one of 6 months supervision together with the conditions that were imposed.

[10]     In  consequence,  the  appeal  is  allowed.     The  sentence  of  12  months supervision is quashed.  In its place there will be a sentence of 6 months supervision on the standard conditions, together with the following special conditions:

a)        Attend an alcohol assessment and programme. b)       Attend a stopping violence programme.

c)        Counselling as may be directed by the probation officer.

Peter Woodhouse J