O v Police HC Hamilton CRI 2009-419-62

[2010] NZHC 81

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2009-419-62

O

Appellant

v

POLICE

Respondent

Hearing:         4 February 2010

Appearances: Appellant in person

J O'Sullivan for respondent

Judgment:      11 February 2010

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 10.00am on Thursday 11 February 2010

Solicitors/party:

G O  , 159 Warburton Cres, Te Awamutu

Crown Solicitor Hamilton

O V POLICE HC HAM CRI 2009-419-62  11 February 2010

[1]      Mr O   appeals against the sentence imposed upon him following his conviction for breach of a local liquor ban.  He was fined $800 and ordered to pay Court costs of $130.  He argues that the amount of the fine was manifestly excessive, and that an appropriate penalty would have been of the order of $300-$500.

The lower Court hearing

[2]      The appellant’s case was heard before Justices of the Peace in the District Court at Te Awamutu on 10 September 2009.  Mr O   did not appear on that occasion.   He told me that he had important work commitments and he took a deliberate decision to accord those commitments priority over the Court hearing.

[3]      Evidence for the informant was given by Sgt Greenwood.  He said:

On 26 April 2009 I was working a rostered swing shift as the Waipa District NCO.  At about 2.00 am I was driving a plain patrol car along Alexandra Street when I turned into Arawhata Street, Te Awamutu.  At this time of the morning the Ale House Bar had just closed so I was driving at about 15-20 km per hour.  I saw a male holding a bottle of beer close by to the Indian restaurant.  I now know this male to be Glen William O  , the defendant before the Court today.  He was with a group of about 10 other males.  His clothing was quite distinctive and he stood out from the other males in the group because of this.  He was wearing a black cap, black t-shirt, black jeans and white shoes.   He also had a distinctive white watch.   The defendant looked at my car and then dropped his hand to his side to hide the bottle of beer.    I continued driving around the  block and  when  I drove  past  the defendant again he still had the bottle of beer in his hand.  I stopped my car, the defendant turned around, bent over and when he straightened up again the bottle was on the ground.  I wound down the passenger window in my car and told the defendant to pick up the bottle and tip the beer out.   He refused.  I got out of my car, approached the defendant and again told him to pick the bottle up and to tip out the beer.  He again refused so I arrested the defendant for breach of the liquor ban.  I picked up the bottle of beer and tried to get the defendant into my car.  He resisted me by pulling away and refusing to come with me until a security staff member approached.   The defendant was then placed into my patrol car.

[4]      With  respect  to  penalty,  the  Justices  simply  noted  that  the  maximum available fine was $20,000, which they considered indicated that the intention of the Legislature was that liquor ban breaches were to be taken “very seriously”. Accordingly, they imposed the penalties against which Mr O   now appeals.

[5]      At the hearing of the appeal, Mr O   was inclined to take issue with the prosecution evidence.   In particular, he contended that the sergeant’s requirement that the bottle of beer be put down was directed not specifically to him but to the group as a whole.  He said that although several members of the group were holding open bottles of beer, he himself was not.  He believed that the sergeant had made a mistake.   He also denied, as the sergeant said in evidence, that he was repeatedly asked by the sergeant to pick up a bottle of beer and tip the beer out.  He said he was asked to do so on one occasion but declined because he was concerned that he might be charged with possession of alcohol if he picked the bottle up.   That is an implausible explanation.  No person would be charged with a criminal offence by reason solely of his compliance with a police direction.

[6]      But in any event, as Mr O   ultimately accepted, he is bound by the evidence given before the Justices.   If he had wished to argue that the police had made a mistake then he should have attended the hearing and given evidence in his defence.

Manifestly excessive

[7]      The charge against the appellant was laid pursuant to s 147 of the Local Government Act 2002.  Read in conjunction with ss 239 and 242(4) of that Act, the maximum  penalty  for  the  offence  is,  as  the  Justices  correctly  noted,  a  fine  of

$20,000.  But it is to be noted that that maximum penalty is stipulated for a range of offences under the Act.   It is unlikely that a simple liquor ban breach would ever attract a penalty anywhere near the stipulated maximum.

[8]      Mr O   argued that this could not be categorised as a serious offence, and pointed to a range of other offences where lower fines are routinely imposed. He  referred  in  particular  to  minor  instances  of  offending  such  as  disorderly behaviour, wilful damage and excess breath alcohol.

[9]      Ms O’Sullivan did not have to hand any detailed information regarding the level of penalties routinely imposed in liquor ban breach cases, but some assistance is to be derived from the decision of McKenzie J in Jensen v Police HC NAP CRI

2003-441-19 28 July 2004, where a fine of $300 had been imposed together with Court costs of $130, in a case in which the Justices had mistakenly  understood the maximum penalty to have been a fine of $500.   There, McKenzie J noted advice from counsel for the respondent to the effect that the level of fines in the Napier area at that time tended to sit in the $400-500 range.

[10]     In my opinion there are two aggravating features of this offending which justified the Justices in imposing a fine of $800.  The first is that Mr O   does not come to the Court with a clean record.  He was fined $200 together with costs in

2007, for the same offence.

[11]     The second aggravating factor is the appellant’s intransigence in the face of the sergeant’s request to pick up the open bottle and tip the beer out.   On the sergeant’s evidence Mr O   was asked on two successive occasions to pick up an open bottle of beer and tip its contents into the gutter.   On each occasion he declined.   It is a proper inference that had he complied he would not have been arrested.  Having been earlier convicted of a breach of the Te Awamutu liquor ban, Mr O   must have known that he was not entitled to carry an open bottle of beer in the centre of town, and that he was under an obligation to follow the instructions of the police.  His refusal to comply with the police direction suggests that he was determined to adopt a truculent and unco-operative attitude to a police officer who was simply enforcing a liquor ban of which the appellant was well aware.  In these circumstances it cannot be said that the fine was manifestly excessive.

[12]     Mr O   advised the Court that he is in full time employment, but he is the only wage earner in his household and payment of the fine and costs will present difficulties.  The answer to that is that he should make arrangements with the Court Registry to pay the fine and costs by instalments.

[13]     For the foregoing reasons the appeal is dismissed.

C J Allan J