Riedel v Police

[2017] NZHC 2145

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-214

CRI-2017-404-288 [2017] NZHC 2145

BETWEEN

JAN RIEDEL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 September 2017
Appearances:	Appellant in person J Murdoch and H Reid for Respondent
Judgment:	5 September 2017

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal against conviction

and appeal against sentence]

RIEDEL v NEW ZEALAND POLICE [2017] NZHC 2145 [5 September 2017]

[1]      Mr Riedel pleaded  guilty in the District Court to a charge of disorderly behaviour.  That charge carries a maximum sentence of three months imprisonment, or a fine in the sum of $2,000.   On 2 June 2017, Judge E M Thomas sentenced Mr Riedel to 12 months supervision with a special condition that Mr Riedel was to undertake any assessment, treatment, counselling or other programme directed by

community probation.1

[2]      Mr Riedel appealed against sentence, but failed to appear to prosecute his appeal.  On that basis, I dismissed the appeal against sentence in a decision delivered on 17 August 2017.2   I expressly delivered that decision on the basis that the appeal could have been dismissed for want of prosecution, but noted that Mr Riedel had stated in his notice of appeal that he did not seek an oral hearing.  For that reason I dealt with the appeal substantively.

[3]      It is now obvious that Mr Riedel did not consent to the appeal being dealt with in that way.   In an effort to rectify matters, he then filed an appeal against conviction, for which he needs leave because the appeal is out of time.

[4]       In order to ensure that justice is done, I recall my judgment on the sentence appeal and reinstate that appeal.

The application for leave to appeal against conviction

[5]      I have now heard submissions from Mr Riedel regarding the manner in which the case proceeded in the District Court.  He tells me that he entered his guilty plea because the Duty Solicitor had told him he would receive a small fine or would be directed to come up for sentence if called upon to do so within a set period.  He did not realise that he was opening himself up to a sentence of intensive supervision for a period of 12 months.  He says this is having significant impact on his new business as a water blaster.   For that reason he seeks the Court’s leave to appeal against

conviction so that he can defend the charge in the District Court.

1      New Zealand Police v Riedel [2017] NZDC 15879.

2      Riedel v New Zealand Police [2017] NZHC 1968.

[6]      That is not an easy path for Mr Riedel to follow, because the Court could only set aside the guilty plea if it was satisfied that a miscarriage of justice had occurred.  On the material presently available it is difficult to see how that threshold could be met.

The appeal against sentence

[7]      This  morning counsel  for the respondent  provided  me with  a significant amount  of  new  information  that  was  not  available  before  the  Judge  when  he sentenced Mr Riedel.  This confirms that there was a significant background to the incident that gave rise to the charge to which Mr Riedel entered his guilty plea.

[8]      Mr Riedel was sentenced on the basis of a summary of facts that does not provide much in the way of detail.  It records merely that Mr Riedel was driving his campervan along the Hibiscus Coast Highway in Orewa on Saturday 13 May 2017 at about 8 am.  The summary then states that a member of the public called out to Mr Riedel whilst he was driving past.  Mr Riedel then threw “multiple chicken eggs out his window, directing them at the members of the public.”  The summary says that Mr Riedel then turned his vehicle around and threw more eggs at pedestrians.  This is said “to have resulted in a road rage incident and a  vehicle collision”.   The summary also records that Mr Riedel explained that he had been the victim of constant harassment from the persons at whom he had thrown the eggs.

[9]      It now turns out that matters are a little more complicated than the summary records.   The  witness  statements  that  Ms  Murdoch  has  provided show that,  on occasion, Mr Riedel has parked his campervan  on a reserve next to a property occupied by two of the complainants.  This has apparently caused some difficulty, because they perceive that he has played loud music and behaved in a manner not becoming of occupants of the reserve.

[10]     The witness statement from one of these complainants, together with a third person, confirms that the two complainants and the third person were standing on the footpath beside the Hibiscus Road Highway on the morning of 13 May 2017.  By coincidence, they were discussing the behaviour of Mr Riedel in the reserve when he drove past.   The male member of the group is then said to have called out to Mr

Riedel “Come and talk to me”.  The witnesses then say that Mr Riedel turned his van around and came back past them with his window down.  The male member of the group again called out “Come and talk to me”.  At this point Mr Riedel is said to have thrown two eggs at the group on the footpath.

[11]     The witnesses say that Mr Riedel then turned his vehicle around and threw two more eggs at them before driving off.  This prompted the male member of the group to run to his property and get into his vehicle.  He then chased Mr Riedel’s vehicle down the road.  Mr Riedel drove to the police station where he parked in the carpark.  At or about that point, the male member of the group allegedly crashed his vehicle into the rear of Mr Riedel’s vehicle.  He is then said to have emerged from his vehicle with a crowbar and to have struck Mr Riedel with the crowbar.

[12]     The police were called to this incident, and Mr Riedel was charged with disorderly behaviour.  The other person was charged with being in possession of an offensive weapon, driving in a dangerous manner and assault.

[13]     Having regard to this background, I do not view Mr Riedel’s conduct as being sufficient to warrant a sentence of intensive supervision.   Rather, I consider that a lesser sentence is required notwithstanding the fact that he threw eggs at pedestrians on two occasions.

Result

[14]     The appeal against sentence is accordingly allowed.  I quash the sentence of intensive supervision.   In its place I make an order directing that Mr Riedel is to come up for sentence if called upon to do so within 12 months of 2 June 2017, being the date on which he was sentenced in the District Court.

[15]     The application for leave to appeal against conviction is dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland