Peterson v Police - [2012] NZHC 3190

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 3190
Decision Date: 28 November 2012

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Kyle Peterson against his imprisonment sentence. The appellant argued that the term of sentence was manifestly excessive. The appeal was out of time, as the sentencing notes were not made available until 16 October 2012. The appellant was sentenced for a number of offences including receiving, breach of community work, assaulting police, resisting police, driving while forbidden, careless use of a motor vehicle, and refusing to accompany a police officer. The appeal centred on the starting point taken by the Judge in respect of the threatening to kill a police officer incident, and the appellant contended that the starting point taken was 12 months. The Court of Appeal decided that a starting point and an end sentence of four months imprisonment for the threatening to kill charge was appropriate. The appellant was sentenced to one month on each of the assault police charges, concurrent on each other, cumulative on the threat to kill charge. The disorderly behaviour and resists police charges would not normally entail a prison sentence in the circumstances. The appeal was allowed as to the term of imprisonment, reducing the sentence from fourteen months to nine months.

[1] Burchell v R [2010] NZCA 314.
[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.

Orders