S v Police HC Christchurch CRI 2008-409-46

[2008] NZHC 542

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000046

S

Appellant

v

POLICE

Respondent

Hearing:         17 April 2008

Counsel:         A Bailey for Appellant

S L Litt for Respondent

Judgment:      17 April 2008

JUDGMENT OF FOGARTY J

[1]      This is an appeal against sentence.  On 6 March the appellant pleaded guilty to one charge of driving with excess alcohol and one charge of assaulting the police. He is a young man aged 17 years.  He has not been before the Courts before.  He was apprehended in a very drunk state, having 1000 micrograms of alcohol per litre of breath.  In the course of being apprehended he tried to head butt the police officer who had been called by local residents when he was knocking on doors in the neighbourhood asking for petrol money.   When the police attempted to interview

him he gave ridiculous and offensive replies.

S V POLICE  HC CHCH CRI 2008-409-000046  17 April 2008

[2]      The Judge sentenced him to 100 hours of community work and disqualified him from driving for eight months.   The appeal is against part of that sentence, namely the 100 hours of community work.

[3]      Mrs Bailey submitted that generally in the case of a 17 year old first offender they are  fined  with  a  level  of  fine  imposed  being  one  which  the  offender  can reasonably be expected to pay, albeit over a period of time;  that it was out of line to impose a sentence of community work, a sentence which will normally have the result of putting him in contact with other offenders, it being the Parliamentary policy to try to divert first offenders or otherwise not mix them with other criminals in the hope that they can be rehabilitated and not offend again.    Mrs Bailey also submitted that the assault on the constable could also have been dealt with by way of fine.

[4]      Ms Litt argued that the sentence imposed by the Judge was not manifestly excessive and is in line with other sentences imposed in the District Court.  The fact that the appellant attempted to head butt the police officer in the execution of his duty  was  an  aggravating  feature.     She  relied  on  the  well  known  case  of R v Clotworthy (2002) 20 CRNZ 439 where Wild J analysed ten factors to be taken into account.  I certainly agree that on Clotworthy analysis the appellant’s culpability is high, not only for the degree of excess alcohol but for his complete lack of disregard for order and authority when the police were seeking to apprehend him. His drunkenness explains that aspect of his behaviour, including probably the attempted assault.  But it does not excuse it.

[5]      However, I am impressed by Mrs Bailey’s argument.  On this occasion the learned District Court Judge appeared not to have taken into account Parliamentary policy of dealing with youthful first offenders, which is manifested in s 36(1A) of the Summary Proceedings Act 1957   and has been reflected in many sentencing remarks.

[6]      I do think this is a case where s 10 of the Sentencing Act 2002 does apply and with regard to s 8 it is nonetheless appropriate that he be sentenced.    Mrs Bailey submitted that the sentence should not exceed $1,000 taking into account costs.   I

think that is a realistic submission.  It is important that this young man pay a penalty but equally the penalty has to be one which he can realistically meet consistent with his daily living expenses.

[7]      I do not have details of his financial circumstances other than a  general assurance from Mrs Bailey, who has had to step in as counsel at a late hour, that he is able to pay a fine.  On the assumption that he is relatively unqualified yet working that works out to be probably well in excess of 60 hours work that he has to expend in  order  to  meet  the  $1,000.      Allowing  for  Court  costs  of  $130  I think  it  is appropriate in this case to broadly split the fine between the excess breath alcohol and the assault on the constable as a signal that both offending is serious.

[8]      The sentence of community work is quashed and he is fined $470 on the excess breath alcohol charge and $400 on the charge of assaulting the police and ordered to pay Court costs of $130.     The disqualification of his driver’s licence remains in place.

Solicitors:

A Bailey, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent