M v Police HC Invercargill CRI 2008-425-21

[2008] NZHC 1353

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2008-425-000021

M

Appellant

v

POLICE

Respondent

Hearing:         1 September 2008

Appearances: A Tobeck for Appellant

M G Sinclair for Respondent

Judgment:      1 September 2008

JUDGMENT OF FOGARTY J

[1]      Miss M  , you have got yourself into a lot of trouble largely due to the fact that you have a drinking problem.  That is plain both from the sad story here and from the history of previous offending.  You have the support of your parents and you owe it to them as well as to yourself to make sure it is the last time that you appear in Court.

[2]      You were sentenced by Judge Phillips on 6 June on two charges of disorderly behaviour and obstruction.  You had been at the Otautau Hotel on Saturday, 17 May, on a drinking trip, with a number of associates from Invercargill.   One of your group

got involved in a fight with some of the local patrons.  The police were called.  The

M V POLICE  HC INV CRI 2008-425-000021  1 September 2008

group were removed from the hotel.   You intervened, trying to stop a constable applying a handcuff to one of your friends.   You were upset and yelling and hysterical.  The constable was under pressure.  He had to pull out his pepper spray. The male was arrested and put in a police patrol vehicle and removed.  The rest of the group  left after warnings and then  you  came back again.   You were  again removed.  Another one of your group was arrested.  He then jumped in the back of the car in question and one of the constables was trying to reach through an open window to arrest him.  You were by that stage in the car and wound the manually operated window up on the constable’s arm and held your hand down on the door lock  to  prevent  him  from  opening  it.    The  police  constable  thought  the  driver appeared to be attempting to start the vehicle.    Seeing this, and fearing harm to himself, he drew his baton in an attempt to use it to free his arm but another of the group grabbed the constable’s baton so he had to use his forearm to break the window causing cuts both to him and to you.

[3]      Informations issued out of the District Court in respect of this offending on

17 May.  On 19 May you wrote a letter to the police constable apologising for your behaviour.  In that letter you said at the first instance you did not know who it was coming in through the window.  The police constable was wearing a uniform short sleeve shirt.  You obviously learned it was a police constable and said you felt his:

… smashing the back window of the car out to be quite gutting as I had let go of the car door before that due to the threats you had said about smashing it, and I was on my way out of the car.

Then you complained about the cuts that you received.

[4]      On the balance of probabilities it would appear that that letter and that explanation was not put to Judge Phillips at the time of sentencing.  It is not reflected at all in the police summary of facts.  In the course of his sentencing remarks you intervened and wanted to be heard.  The Judge responded after you had replied to the Court and we do not know what you said but that is what he was told in the facts summary.

[5]      Ms Sinclair for the police has argued that your version of events should have been taken up at the time, and it should have been, but it is not too late to bring it to

the attention of the Court.  In my view this Court can now look again at the factual basis of the offending and take this into account when considering the appeal.   This is  not  a  criticism  of  Judge  Phillips  but  just  reflects  a  situation  which  is  not uncommon when the appellate Court is confronted with a different set of facts than those considered by the sentencing Judge.   I am satisfied that your letter of 19 May was a genuine letter.  It should have been put before Judge Phillips.  It does mitigate what you did.  It does not excuse completely what you did but it does cast matters in a slightly different light.  It changes the case to one where the charge of obstruction was the appropriate charge, whereas on the facts, as the Judge looked at it, he thought  that  you  had  been  undercharged  by the  police.    Possibly the  police  in charging you only with obstruction rather than, for example, some kind of assault charge, had taken into account the letter although chose not to reflect it in the police summary of facts.

[6]      Accordingly,  I proceed  on  the  basis  that  the  sentencing  Judge  was  at  a disadvantage and I am free to reconsider the sentencing.  On that basis it does appear that there has been a significant disparity in the fact that your co-offenders all got fined, ranging between $500 and $800, including one of whom was charged with obstruction, whereas you got community work.

[7]      In the circumstances there is a potential enduring consequence to you in your career between being fined and getting community work, which is a form of detention.   You have now done 43½ hours of community work.   You have also suffered  52  days  of  disqualification  from  driving.    You  were  disqualified  from driving for three months.   So you have done about half of that.   Your counsel, Mr Tobeck, queried whether or not the threshold imposed in s 124 of the Sentencing Act  2002  had  been  satisfied,  namely  that  the  commission  of  the  offence  of obstruction was facilitated by the use of the motor vehicle.  Winding up the window is use in my view.  But it is in that range of use of a vehicle where the Judge must then be very careful about the exercise of discretion as to whether or not to impose disqualification.   By way of example I refer to the decision of Leonard v Police (1988) 3 CRNZ 208.   The police summary of facts say that at the time you were winding up the window another offender was trying to start the car.   There is no suggestion, I think, on the facts, that you were party at all to any plan to drive off

with the police officer’s arm attached to the car which would have been extremely dangerous.  But it does appear to me that that was suggested in the police summary of facts and was significantly influencing the Judge.

[8]      For these reasons, cast in a new light, I am satisfied that the sentences that were imposed on you were manifestly excessive and they are set aside.  You should have been fined.  But you have now done 43½ hours community work.  It was a line call as to whether you should have been disqualified from driving, but you have done

52 days of disqualification.

[9]      I want to make it clear to you that the outcome I am going to impose is designed to reflect that you have already, in my view, been punished enough.  For that reason, I agree that given the penalties you have already suffered and given the unhappy consequence  of  substituting  a  community  work  order  sentence,  say of

43 hours, it no longer being appropriate to impose a fine, and thus taint your record to a significant degree more than it should be, I am persuaded that it is appropriate to convict and discharge you on both counts.

[10]     I say again, I do hope you will never be here again.

Solicitors:

Eagles Eagles & Redpath, Invercargill, for Appellant

Preston Russell Law, Invercargill, for Respondent