Peterson v Police
[2012] NZHC 3190
•28 November 2012
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2012-406-22 [2012] NZHC 3190
KYLE PETERSON
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 22 November 2012 (Heard at Christchurch)
Appearances: R Harrison for Appellant
C J Boshier for Respondent
Judgment: 28 November 2012
JUDGMENT OF FOGARTY J
[1] At the District Court at Blenheim on 20 August 2012, the appellant was sentenced to 14 months imprisonment, nine months disqualification from driving, and reparation of $176. He appeals against the term of sentence on the grounds that it is manifestly excessive. The appeal is out of time. This is because the sentencing notes of the Judge were not made available until 16 October 2012. Leave to appeal was granted at the hearing.
[2] The appellant was sentenced on the following charges:
receiving (25/10/10)
breach of community work (10/12/12)
PETERSON V NEW ZEALAND POLICE HC BLE CRI-2012-406-22 [28 November 2012]
re-sentence on charges of assaulting police and resisting police (January
2011)
driving whilst forbidden (28/08/11)
careless use of a motor vehicle (28/08/11)
refusing to accompany a police officer (28/08/11)
assaulting a police officer (28/08/11)
resisting a police officer (28/08/11)
driving with excess breath alcohol (28/08/11)
breach of bail (12/09/11)
a further count of resisting police (06/01/12)
disorderly behaviour (12/05/12)
two charges of assaulting police (12/05/12)
resisting police (12/05/12)
threatening to kill a police officer (12/05/12)
[3] It may be noticed that there are, amidst these charges, two groups of events on 28 August 2011 and on 12 May 2012.
[4] The delay in the sentencing for the events on 28 August 2011 and the earlier charges result from a pending trial involving a charge of maltreatment of a dog which was dropped, resulting in entering pleas of guilty to all the other issues that were for trial.
[5] One can also notice a pattern in the charges of assaulting police and resisting them in January 2011, January 2012, and the cluster of charges in May 2012.
[6] The appellant is a member of a family well-known to the police in Blenheim.
[7] The appeal centres on the starting point contended to have been taken by the Judge in respect of the May 2012 incident, and in particular the threatening to kill a police officer.
[8] Paragraph [5] of Judge Zohrab’s judgment reads:
[5] As well as the application of force by you there are some nasty threats made to the police officers and their families as well. So I would have thought, looking at those as a start point, that on that particular matter that 12 months’ prison on its own might be justified for that instance. That would then take me to 19 months if I aggregated or added all those together.
[9] The summary of facts describing 12 May 2012 is as follows:
SUMMARY OF FACTS INTRODUCTION
At approximately 10.30 pm on Saturday the 12th of May 2012 Senior
Constable Jeff WOOLF was working a uniformed shift in Picton. The
Constable had parked a marked patrol car on High Street as he was observing patrons outside a local hotel and in the process of urgent duties.
CIRCUMSTANCES
DISORDERLY BEHAVIOUR – CRN 12006001138
At about this time the defendant, PETERSON, and two of his half brothers sat on a raised garden directly in front of the patrol car.
As a group of diners left a Cafe directly across the road the defendant made loud suggestive comments to the women in that group.
The Constable spoke with the defendant and told him to stop talking like that and told him he should remove himself from the area or he could be arrested for disorderly behaviour.
The defendant objected to this and commenced yelling and swearing at the officer. He was told to stop swearing as there were a number of members of the public in relatively close proximity.
The defendant was directed to remove himself from the area or he would find himself arrested.
The defendant continued to argue and yell. ASSAULT POLICE – CRN 12006001139
When Senior Constable WOOLF attempted to move the defendant he lunged out at the [sic] him.
The defendant pushed the officer in the chest, punched at the Constable who blocked it with his forearm. The defendant also attempted to kick the Constable.
The Constable called upon members of the Public to assist to ensure the defendant left the area.
DISORDERLY BEHAVIOUR – LIKELY TO CAUSE VIOLENCE – CRN
12006001140
At approximately 10.55pm after dealing with the urgent matter Police located the defendant on the corner of High Street and Waikawa Road. At this time he was with his mother, half brothers and other associates.
When spoken to by Police the defendant became aggressive yelling and shouting obscenities and threats at the Constable.
When instructed he was under arrest for Assaults Police the defendant became angry. The defendant clenched his fists and challenged the Police that he would fight them.
The group he was with commenced yelling at Police and the situation became volatile.
RESISTS POLICE – CRN 12006001141
Police presented a Taser at the defendant and warned him that it may be used on him if he did not comply. The defendant continued to advance on the Constable with his fists clenched.
Another Constable assisted and the defendant was brought to the ground. When on the ground the defendant continued to struggle, flailing his arms about and kicking at Senior Constable WOOLF and two other Police Constables.
ASSAULTS POLICE – CRN 12006001142
Whilst officers where [sic] restraining the defendant on the ground he has spat blood in the face of Constable Brett BURNS.
THREATENS TO KILL – CRN 12006001151
Whilst being restrained by Constable BURNS the defendant yelled at the
Constable saying “I will hunt you down and kill you, your wife and kids”.
THREATENING ACTS – CRN 12006001143
Whilst Police were taking the defendant into custody he yelled out on at least two occasions “I know where you fucken live WOOLF. I’m gonna fucken burn down your house you cunt”.
INJURIES TO VICTIM
The Constable sustained minor bruising to his left forearm.
DEFENDANT COMMENTS
The defendant declined to comment.
The defendant has previously appeared in Court.
[10] There were two arguments on appeal addressing [5]. The first was a submission by counsel for the respondent that it was an erroneous interpretation of [5] to interpret it as the Judge taking 12 months as the starting point for the offence of threatening to kill a police officer. I am satisfied that the correct interpretation of [5] of the judgment on appeal is that Judge Zohrab took a starting point of 12 months on the whole of the incident of 12 May 2012.
[11] Counsel before me agree that the lead offending in this incident were the threats to kill. The culpability of the offence of threatening to kill depends very much in context. In Burchell v R[1] the Court of Appeal was dealing with another angry threat to kill a policeman, obviously made in the spur of the moment. Mr Burchell reported to the Community Probation Service at Takapuna for the preparation of a pre-sentence report. The senior probation officer in charge explained to Mr Burchell that the allocated officer was away on annual leave, and Mr Burchell would have to make another appointment. Mr Burchell did not react well and became progressively angry. The reason for his reference to the probation
[1] Burchell v R [2010] NZCA 314.
officer is that he had been convicted for scratching a police officer’s vehicle. Mr Burchell told Mr Savage, in a frustrated and angry state, that he had had enough, he knew where the police officer lived, and that while he had no intention of going to this officer’s house, if he saw him again he would kill him. In context, Mr Savage was concerned for the safety of the officer. He advised the police. This issue went to trial before a Judge and jury. He was sentenced to eight months imprisonment. As to sentence, the Court of Appeal said:
[25] Judge Field was correct that there is no tariff for the offence of threatening to kill. The circumstances are always decisive. This Court has viewed threats to kill police officers as particularly serious. In R v Cherri and R v Terry sentences of one year and 16 months respectively were upheld (although in the former the sentence was reduced to six months for other reasons). In Terry the threat was made directly to the officer, with a strict timeframe, and described as a promise. A previous conviction for threatening to kill a local body officer was a significantly aggravating factor.
[26] In our judgment the relevant facts place Mr Burchell's culpability at the lower end of the scale. The aggravating feature was that the threat was directed towards a named police officer. We accept also that Mr Savage took the threat seriously.
[27] However, while Mr Burchell's threat involved a police officer, it was not made to the officer or in his presence. Its scope was limited to the prospect of an opportunistic encounter. Mr Burchell disclaimed any intention of seeking out the officer. He did not particularise the mode of carrying out the threat. And, significantly, it was the spontaneous culmination of an apparently angry and irrational tirade against police officers and authorities in general. Mr Burchell had no relevant previous convictions.
[28] We consider that a sentence of eight months imprisonment was excessive. A starting point and end sentence of four months imprisonment would have been sufficient to meet the relevant principles of deterrence, denunciation and accountability while recognising the relatively low level of Mr Burchell's culpability.
[12] I am guided by the decision in Burchell. I think that in the context of these threats to kill, they were appropriately described by Judge Zohrab as nasty. There is no finding of fact that they were taken seriously by the police or concerned the police. Ms Boshier pointed out that there was an incident when the appellant was
17, where he had set fire to something, recorded in the Youth Court history. There is no suggestion that Judge Zohrab relied on this as an aggravating feature. As the Burchell judgment shows, there can be much longer sentences for threatening to kill police officers.
[13] I adopt the Court of Appeal judgment that a starting point and an end sentence of four months imprisonment for the threatening to kill charge is appropriate.
[14] As the summary of facts demonstrates, this was one incident. The police have managed to discern seven offending events. But in accordance with normal principles, these other offending events would be sentenced concurrently rather than cumulatively. The typical range of sentences for assaults on police in scuffles like this is between one and three months. See Barnes v Police,[2] the facts of this assault involve kicking the police officer while being carried to a patrol car after arrest. Cooper v Police,[3] the defendant was found in an intoxicated state in Karangahape Road. He shouted obscenities and verbal abuse at the police constables and was arrested. When he was placed in the vehicle, he kicked out with both feet at one of
the constables, kicked the constable in the chest several times, kicked the lower body
of another constable. He had an appalling criminal history. The lead offending in this sentencing was burglary. But in respect of the two charges of assaulting the police, he was imposed a sentence of one month’s imprisonment concurrent with each other, but cumulative on the sentence for the burglary. That sentence was not disturbed on appeal. In R v Taurere,[4] the defendant was drunk and had damaged some furniture after a family argument. The police were called. The defendant began swearing loudly, was told to calm down and be quiet, did not comply and was arrested for breaching the peace. While be taken in handcuffs to the police car, he
stomped on the policeman’s foot. Wylie J observed that the range for this kind of offending was one to three months. In this case, three weeks.
[2] Barnes v Police HC Palmerston North CRI-2006-454-3, 7 February 2006, Young J.
[3] Cooper v Police HC Auckland CRI-2009-404-261 and 282, 16 November 2009, Wylie J.
[4] R v Taurere HC Whangarei CRI-2011-488-30, 7 July 2001.
[15] The summary of the facts does not record that in the fracas the defendant’s
nose was broken. This was the source of the blood.
[16] On each of the assault police charges a sentence is imposed of one month concurrent on each other, cumulative on the threat to kill charge.
[17] The disorderly behaviour and resists police charges would not normally entail a prison sentence in the circumstances. He is convicted and discharged on those offences. On the threatens to kill and threatening acts, the sentence is three month concurrent on each other and cumulative on the assault. Arriving at a total sentence of four months on the May 2012 incident.
[18] The appeal did not seek significantly to disturb the other sentences, which were three months for a breach of community work and four months for the driving offences. That brings the total to 11 months. He is entitled to a credit for the plea of guilty. The Judge took a discount of five months off the 19 months accumulated. Approximately 20 percent, the Hessell standard. I will allow the same percentage, and so arrive at an end sentence which calculates at 8.8 months, which I round to
nine months.
[19] Accordingly the appeal is allowed as to the term of imprisonment, reducing the sentence from fourteen months to nine months.
Solicitors:
R Harrison Barrister, PO Box 284 Blenheim – [email protected]
Raymond Donnelly & Co, Christchurch - [email protected]