McRae v Police

[2014] NZHC 1293

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000030 [2014] NZHC 1293

BETWEEN

OLIVE JESSIE McRAE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	10 June 2014
Counsel:	C J Tennet for Appellant E M Light for Respondent
Judgment:	10 June 2014

JUDGMENT OF COLLINS J

Introduction

[1]      There are two parts to this judgment.  In Part I I explain why I am dismissing Ms McRae’s appeal against her conviction for disorderly behaviour.1    In Part II I explain why I am allowing Ms McRae’s appeal against a sentence of 120 hours’ community work and substituting that sentence with one of 40 hours’ community work.

Background

[2]      On 21 December 2013, Ms McRae was at a party in Mount Victoria.  In the early hours of the following morning she and four other people walked to Courtenay Place to get money from an ATM machine to pay for a taxi. At about 3.20 am, when

they were at an ATM machine, the machine “swallowed” the card.

1      Summary Offences Act 1981, s 3.

McRAE v NEW ZEALAND POLICE [2014] NZHC 1293 [10 June 2014]

[3]      After the ATM machine “swallowed” the card, Ms McRae and her friends

began swearing at the machine and acting in an aggressive way towards it.

[4]      At this time the area where Ms McRae and her friends were was busy.  A large number of intoxicated people were starting to leave surrounding bars and were in the streets and sidewalks where Ms McRae and her friends were.

[5]      Constables William and Attwood saw Ms McRae and her group as they were chanting at the machine.  The constables approached the group, who then started to chant “fuck the police”.

[6]      Constable   William   tried   to   speak   to   Ms   McRae   but   according   to Constable William,  Ms  McRae  was  unwilling  to  listen.    After  a  few  moments Ms McRae realised that she had left a bottle of cider on the ledge of the ATM and said in a loud voice that she was going to retrieve the bottle.   Constable William placed herself in front of Ms McRae and told her that there was a liquor ban in place in relation to the area where they were and directed her to tip the contents of the bottle out.

[7]      At this point there is a conflict in the evidence of the respective sides.

[8]      Constables William and Attwood said that they tried to take the bottle from Ms McRae but that matters degenerated with Ms McRae trying to avoid being arrested by dancing around the police officers and abusing them.  According to the police, others in Ms McRae’s group joined in.   Constable Attwood was forced up against a window.  Part of his epaulette was ripped from his shoulder and part of his radio ripped from his chest.  Constable Attwood applied pepper-spray to Ms McRae and another member of her group, who were yelling “fuck the police” at this time.

[9]      Ms McRae said that she was taking the bottle to the gutter to tip out its contents  when  Constable  Attwood  grabbed  her  and  used  unnecessary  force  to restrain  her.    Ms  McRae denied resisting arrest,  physically connecting  with  the constables or abusing them in any way.

District Court decision

[10]     Judge Gibson heard evidence from six witnesses, namely: (1) Constable William;

(2)       Constable Attwood; (3) Ms McRae;

(4)       Mr Iddamalgoda; (5)     Mr Baird;  and

(6)       Ms McArthur.

[11]     Judge Gibson found that the context in which the abusive language occurred was that Ms McRae refused to give the bottle of cider to the police while in the liquor ban area.  This resulted in Ms McRae resisting arrest, which in turn led to a general melee in which Ms McRae was involved.   It was Ms McRae’s behaviour within this context that amounted to disorderly behaviour.  Judge Gibson said that had Ms McRae only used words then her behaviour would not have amounted to disorderly behaviour.

[12]     Judge Gibson held Ms McRae was in a group made up of five people and that there were also a significant number of people in the immediate area.

[13]     In  addition,  Judge  Gibson  was  satisfied  that  not  only  did  Ms  McRae’s behaviour  have  the  potential  to  result  in  violence,  but  that  a  melee  resulted. Ms McRae’s  behaviour  while  resisting  arrest  led  to  her  associate  grabbing  and holding  Constable Attwood  with  such  force  that  it  ripped  his  epaulette  on  his shoulder and  disturbed  his  radio  which  was  attached  to  his  chest.   This  led to Constable Attwood responding by using pepper spray on Ms McRae and her associate.

[14]     Judge Gibson’s notes on sentencing were very brief.  He simply said:

Ms McRae, convicted and sentenced to 120 hours community work”.

Part 1: appeal against conviction

Principles governing appeal against conviction

[15]     I can only allow Ms McRae’s appeal if I conclude that Judge Gibson erred in his  assessment  of  the  evidence  to  such  an  extent  that  a  miscarriage  of  justice occurred, or if for any other reason a miscarriage of justice has occurred.2

[16]     A miscarriage of justice is defined to mean:3

… any error, irregularity, or occurrence in or in relation to or affecting the trial that–

(a)       has created a real risk that the outcome of the trial was affected; or

(b)      has resulted in an unfair trial or a trial that was a nullity.

[17]     The test contained in s 232 of the Criminal Procedure Act 2011 involves, in part, an assessment of whether the Judge in the court below made an error of such a nature that there is a real risk that the outcome of the trial was affected.

[18]     An appeal against conviction proceeds by way of rehearing.  I am therefore required to carefully consider all matters that were before Judge Gibson, but ultimately I must reach my own decision on the merits.  The weight I give to the evidence is a matter for my judgement.   If I conclude that the Judge below was wrong I must act on my own view of what the outcome should be.4

Grounds of appeal

[19]     Ms McRae’s appeal alleges:

(1)Judge Gibson erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred;

2      Criminal Procedure Act 2011, s 232(2)(b) and (c).

3      Section 232(4).

4      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

(2)       Judge Gibson erred in his application of Police v Drummond and

Brooker v Police;5   and

(3)       Judge Gibson erred by not giving reasons for rejecting Ms McRae’s

defence.

Reasons for dismissing appeal against conviction

Judge Gibson did not err in his assessment of the evidence

[20]     I have carefully considered the transcript of evidence and Judge Gibson’s judgment.  In my view Judge Gibson did not err in his assessment of the evidence. He correctly found the elements of the charge had been proven beyond reasonable doubt.   In particular, Judge Gibson concluded the evidence established beyond reasonable doubt that:

(1)       Ms McRae’s behaviour was disorderly in nature;

(2)the nature of her disorderly behaviour was likely to cause violence against persons or property; and

(3)       Ms McRae’s disorderly behaviour took place in a public place.

[21]     My reasons for concluding Judge Gibson did not err in his assessment of the evidence are based on the sequence of the events that occurred on the night in question.  Both counsel agreed:

(1)Ms McRae and her associates verbally abused  Constables William and Attwood when they approached Ms McRae and her group.

(2)Ms McRae was told to empty the contents of the cider bottle.  When she failed to do so, Constable Attwood moved towards her to arrest

her.

5      Police v Drummond [1973] 2 NZLR 263 (CA) and Brooker v Police [2007] NZSC 30, [2007] 3

NZLR 91 at [24].

(3)Ms McRae attempted to avoid arrest by dancing around the police officers and verbally abusing them.

(4)At this point one of Ms McRae’s colleagues intervened and tried to restrain Constable Attwood.  His shoulder epaulette was damaged and his radio dislodged from his chest.

(5)By this point a melee had developed.  The police took evasive action including the use of pepper-spray.

(6)The events occurred in a street in which there were many intoxicated people.

[22]     It  was  entirely  open  to  Judge  Gibson  to  reject  Ms  McRae’s  claim  that Constable Attwood had randomly pepper-sprayed her and her associate.   The altercation was clearly between a group of people who had been consuming alcohol and two police constables in a crowded downtown area that quickly escalated.

[23]     I am in no doubt the police were dealing with a difficult situation.   There were a number of people on Courtenay Place at the time and Ms McRae must have been well aware of the circumstances.  There was no miscarriage of justice in the way in which Judge Gibson evaluated the evidence.

Judge Gibson did not misapply the law

[24]     Judge Gibson applied Brooker v Police in the following way:6

Offensive behaviour was the subject of a Supreme Court decision in Brooker v Police … where the words were defined by a number of Judges. Chief Justice Elias at paragraph 24 of the decision said that it was disorderly behaviour that meant, “behaviour seriously disruptive of public order”. Justice Blanchard said that disorderly behaviour is, “behaviour which disturbs or violates public order. To fall within s 4(1)(a) it must be behaviour in or within view of a public place which substantially disturbs the normal functioning of life in the environs of that place. It must cause a disturbance of good order which in the particular circumstances of time and place any affected members of the public could not reasonably be expected to endure because of its intensity or its duration or a combination of both

those factors”.   Later at paragraph 90 he defined disorderly behaviour as behaviour which, “causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to hear.  Unless that is so, the conduct will not warrant the intervention of the criminal law.”

Consequently behaviour must be seriously disruptive of public order and not merely disruptive.

[25]     Judge Gibson addressed Police v Drummond in the following way:7

Chanting has in fact been held to found a charge of disorderly behaviour but in the context of the old Police Offences Act 1927 when obscene language could constitute an offence and where a defendant yelled “fuck” several times in the presence of a large crowd assembled in the case of an Anzac commemoration service in the case of Police v Drummond … However, the Court is required to have regard to current standards and particular circumstances and the setting in which the words were used.

[26]     Notwithstanding the submissions which Mr Tennet has made on behalf of Ms McRae, I cannot find any error in the way in which Judge Gibson understood and applied Brooker v Police and dealt with Police v Drummond.

Judge Gibson did not err by failing to give reasons for rejecting Ms McRae’s defence

[27]     Judge Gibson gave his reasons for rejecting Ms McRae’s defence in his judgment  when  he  rejected  her  account  of  what  happened.    His  judgment  was detailed and it addressed each witness’s account of the events.   He analysed the evidence by reference to the time, place and circumstances of the events in question. Judge Gibson plainly rejected Ms McRae’s defence when he concluded that he did not accept her account of events and accepted the evidence of Constables Attwood and William.

[28]     For these reasons, no miscarriage of justice arose from the way Judge Gibson assessed the evidence, or in any other way.  The appeal against conviction must be dismissed.

Part II: appeal against sentence

Legal principles governing a sentence appeal

[29]     Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 121(3)(b) of the Summary Proceedings Act 1957 allowed the High Court to quash a sentence imposed by the District Court where it was found that the sentence was:

… one which [was] clearly excessive or inadequate or inappropriate, or if the High Court [was] satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the court imposing sentence ...

Appeals under s 121(3)(b) of the Summary Proceedings Act 1957 were normally allowed if the High Court was satisfied that the sentence imposed by the District Court was “manifestly excessive”.  While the court was cautious before interfering with the discretion of the sentencing judge, there was a need to maintain consistency in sentences imposed for similar types of offending.

[30]     Section  250  of  the  Criminal  Procedure Act  2011  now  governs  sentence appeals from the District Court to the High Court.  Section 250(2) of the Criminal Procedure Act 2011 provides:

(2)       The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction;  and

(b)      a different sentence should be imposed.

[31]     Not every error in a sentence will provide the foundations for a successful appeal.   The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 include, but are not limited to:

(1)      errors of law;

(2)failing to take account of or not giving sufficient weight to relevant factors;

(3)       taking account of irrelevant factors;  and

(4)committing an error of principle, such as adopting a starting point that is disproportionately high.

[32]     A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of the sentence should be altered, but not in a way that amounts to a minor adjustment.

[33]     In summary, I proceed on the basis that I can only allow Ms McRae’s appeal if I am satisfied that there is an error in the sentence which Judge Gibson imposed and that a different sentence should be imposed.

Judge Gibson erred when he sentenced Ms McRae

[34]     Ms McRae’s sentence appeal is based on the following contentions that:

(1)       the sentence imposed was manifestly excessive;  and

(2)Judge Gibson failed to take into account that Ms McRae was pepper- sprayed as a mitigating factor.

[35]     Ms McRae has 15 previous convictions.  In 2004 Ms McRae was sentenced to 40 hours’ community work for a disorderly behaviour offence.  Her most recent conviction was in 2012 for a breach of community work arising from 150 hours imposed on her for a third or subsequent offence for driving with excess breath alcohol in 2010, and was sentenced to two months’ community detention.

[36]     Ms McRae’s past offending can be described as nuisance offending.  She has previously been sentenced to sentences of fines and community-based sentences of community work, supervision and community detention.   Therefore, I can see no error in Judge Gibson imposing a sentence of community work.

[37]     The difficulty I have is in understanding the reasons why Judge Gibson opted for a sentence of 120 hours’ community work.   In my assessment, the minimum

period of community work that could have been imposed in this case was 40 hours’

community work.8  That is the sentence which I will impose.

[38]     As for being pepper-sprayed by Constable Attwood as a mitigating factor, nothing can turn on this submission.  There is nothing in s 9 of the Sentencing Act that says this must be taken into account.

[39]     In my assessment a sentence of 40 hours’ community work would:

(1)	hold Ms McRae accountable for the harm she has done;9
(2)	promote a sense of responsibility in Ms McRae;10
(3)	denounce Ms McRae’s conduct;11
(4)	deter Ms McRae and others from similar offending;12
(6)	assist Ms McRae in her rehabilitation;13   and
(7)	be  the  least   restrictive  outcome  that   can   be  imposed circumstances.14	in  the

[40]     Accordingly, the appeal against sentence is allowed.

Conclusion

[41]     Ms McRae’s  appeal against conviction is dismissed.    Her appeal against

sentence is allowed.

[42]     The sentence imposed by Judge Gibson is set aside and replaced with a

sentence of 40 hours’ community work.

8      Sentencing Act 2002, s 55(2).

9      Section 7(1)(a).

10     Section 7(1)(b).

11     Section 7(1)(e).

12     Section 7(1)(f).

13     Section 7(1)(h).

14     Section 8(g).

D B Collins J

Solicitors:

Crown Solicitor, Wellington