Riedel v Police

[2017] NZHC 1968

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-214 [2017] NZHC 1968

BETWEEN

JAN RIEDEL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	On the papers
Appearances:	Appellant in person B Finn for Respondent
Judgment:	17 August 2017

JUDGMENT OF LANG J [on appeal aganist sentence]

This judgment was delivered by me on 17 August 2017 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

RIEDEL v NEW ZEALAND POLICE [2017] NZHC 1968 [17 August 2017]

[1]      Mr Riedel pleaded  guilty in the District Court to  a charge of disorderly behaviour likely to cause violence.  On 2 June 2017, Judge E M Thomas sentenced Mr Riedel to 12 months supervision with special conditions.1    Mr Riedel appeals against sentence on the basis that the sentence of supervision was too harsh and also inappropriate given his personal circumstances.

[2]      Mr Riedel did not provide a physical address when he filed his Notice of Appeal.    This  is  possibly  explained  by  the  fact  that  he  apparently  lives  in  a campervan and has no fixed residential address.  Mr Riedel did, however, provide a cellphone number on the notice of appeal.

[3]      Mr Riedel did not appear when the appeal was called for the first time in the criminal appeals callover on 7 July 2017.   I then adjourned the matter to 21 July

2017, and directed the Registrar to endeavour to advise Mr Riedel of the new date by contacting him using the cellphone number provided in the Notice of Appeal.  I also asked the Registrar to advise Mr Riedel that the appeal was likely to be struck out if he failed to appear on 21 July 2017.

[4]      The Registrar has provided me with a memorandum in which he confirms that he spoke to Mr Riedel by telephone on 11 July 2017.   The Registrar says he advised Mr Riedel that the appeal would be called again on 21 July 2017 at 9 am. He also advised Mr Riedel that the matter was likely to be struck out in the event that he did not appear on that date.   Mr Riedel apparently told the Registrar that he understood this, and then endeavoured to discuss the merits of his appeal.   The Registrar quite properly declined to participate in that discussion.

[5]      Mr Riedel did not appear when the appeal was called again on 21 July 2017. For that reason the appeal could be dismissed for want of prosecution.   I note, however, that Mr Riedel stated in his Notice of Appeal that he did not seek an oral hearing.  For that reason I propose to deal with the appeal substantively on the basis of the material on the file.

Background

[6]      The charge was laid as a result of an incident that occurred on the morning of

13 May 2017.  The summary of facts records that on that date Mr Riedel was driving his campervan along the Hisbiscus Coast Highway in Orewa.   A member of the public called out to Mr Riedel, and Mr Riedel responded by throwing a number of eggs out his window in the direction of the person who was calling out to him.  He then turned his campervan around and threw more eggs at pedestrians in the area. The summary records that this subsequently resulted “in a road rage incident and vehicle collision”, although no details of these are provided.

[7]      When the police spoke to Mr Riedel, he said he had been the victim of constant harassment from the persons at whom he threw the eggs.

The sentence

[8]      The reasons for the sentence that the Judge imposed can be distilled from the following paragraphs of his decision:2

[3]       You have a number of previous convictions but as Ms Abernathy points out that has all slowed since 2010.  There are a number of features, though, that run through your list of previous convictions that would ordinarily have triggered a supervision sentence to be considered but I see that you have not been sentenced to any sentence that involved any sort of oversight since you had received release conditions since 2003.   The time has probably come for you to have some of that oversight.

[4]       You have pleaded guilty and I am satisfied that supervision, then, is the least restrictive outcome.  I sentence you to 12 months’ supervision.  It will be a special condition of that sentence that you do any assessment, treatment, counselling or programme directed by Community Probation.

Decision

[9]      Mr  Riedel  has  a  reasonably  extensive  list  of  previous  convictions  for offending of various types since 1999.   These include crimes of dishonesty and burglary as well as breaches of sentences and orders made by the Court.  He also has convictions for assaulting police, being in possession of an offensive weapon, threatening to kill and assault with a stabbing or cutting instrument.   He also has

convictions for contravening a protection order and obstructing the course of justice. He has received a variety of sentences, including periodic detention, supervision, corrective training and community work.   He has also served several sentences of imprisonment, the most significant of which was a sentence of one year eight months imprisonment imposed in 2003 on eight charges of burglary and a charge of unlawfully getting into a motor vehicle.   He then received a sentence of one year seven months imprisonment in November 2010 on charges involving violence, obstructing the course of justice and breach of a protection order.

[10]     Given that background, and the fact that Mr Riedel had not been the subject of oversight by the authorities since 2003, it is no surprise that the Judge elected to impose a sentence of supervision notwithstanding Mr Riedel’s itinerant lifestyle. The fact that he lives in a campervan would not prevent the implementation of that sentence because he clearly has the ability to attend meetings with his probation officer.

[11]     The unusual nature of the circumstances that gave rise to the present charge persuade me that a sentence of supervision was not only appropriate but also, as the Judge observed, the least restrictive outcome in the circumstances.

Result

[12]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland