M v Police HC Dunedin CRI 2006 412 42

[2006] NZHC 1380

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2006 412 42

M

Appellant

v

POLICE

Respondent

Hearing:         8 November 2006

Appearances: C D Savage for Appellant

R P Bates for Respondent

Judgment:      8 November 2006

ORAL JUDGMENT OF CHISHOLM J

[1]      On 22 September 2005 the appellant was convicted and fined $150 for using offensive language at the Central Police Station.  He is an 18 year old student and has not previously appeared.  This is an appeal against conviction in the sense that Mr Savage is seeking a discharge without conviction pursuant to s106 of the Sentencing Act 2002.

[2]      The  circumstances  giving  rise  to  the  charge  were  these.    At  5.10pm  on

Saturday, 9 September the appellant directed offensive and confrontational words towards the police at the Central Police Station, Dunedin.   At the time he was

M V POLICE HC DUN CRI 2006 412 42  8 November 2006

affected by alcohol.  Members of the public were present and could have heard what was said.

[3]      A transcript of the sentencing process that took place on 22 September has been provided.   After the prosecutor had read the police summary Mr Savage indicated that he intended to seek a discharge under s106.   This was peremptorily rejected by the Judge on the basis that he was not going to put up with this sort of behaviour (meaning the appellant’s behaviour).  Unfortunately Mr Savage’s attempts to advance his submission were unable  to  progress  very far  and  in  the  end  he effectively gave up.

[4]      As far as I can gather the Judge’s reasons for rejecting the application were: the appellant had been diverted previously;  he had behaved extremely offensively; policemen did not have to put up with this kind of behaviour from students or anyone else, drunk or not drunk;  and a conviction was necessary.

[5]      Mr Bates responsibly conceded that the decision cannot stand.   In terms of s11 the Judge was under an obligation to properly turn his mind to the possibility of a  discharge  without  conviction.    Each  case  must  be  considered  on  its  merits. Although the discretion is generally exercised sparingly it is nevertheless necessary for the Court to actually exercise its discretion.  I do not think that this happened in this case.

[6]      It follows that the case must be reconsidered.  The question is whether that reconsideration should be in this Court or by a rehearing in the District Court.  Mr Savage hopes to be able to provide further information relevant to the exercise of the discretion.  Under those circumstances the appropriate course is to allow the appeal and refer the matter back to the District Court for a rehearing.  It is to be heard on 8

December 2006 with the time to be fixed by the Registrar.

Solicitors:           Aspinall Joel,, Dunedin for Appellant

Crown Solicitor, Dunedin