T v Police HC Auckland CRI 2008-404-214

[2009] NZHC 342

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-214

T

Appellant

v

THE POLICE

Respondent

Hearing:         2 March 2009

Appearances: Appellant in person

N Whittington for respondent

Judgment:      18 March 2009

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 11 am on Wednesday 18 March 2008

Solicitors/party:

S T  ,48 May Road, Mt Roskill, Auckland

Crown Solicitor Auckland

T V THE POLICE HC AK CRI 2008-404-214  18 March 2009

[1]      On 13 May 2008, following a summary trial, Ms T   was convicted in the Manukau District Court by Judge Andrée Wiltens on three charges of wilful damage. On 27 June 2008 the Judge imposed concurrent sentences of 100 hours community work in respect of each charge, and directed that she pay reparation totalling $1,650. She now appeals against conviction and sentence.

Background

[2]      At the time of this alleged offending, Ms T  ’s 16 year old son was in residential  care  at  the  Tamaki  Oranga  Mental  Health  Unit  at  Otara  in  South Auckland.  He has been under the oversight and care of the mental health authorities since 2001.  Along with mental health problems he also faces physical difficulties arising in part from injuries sustained in an earlier accident.

[3]      For some considerable time, Ms T   found the staff and community teams who had a role in her son’s care to be devoted to his welfare and “good to work with” as she puts it.  Unfortunately, recently, she has become increasingly frustrated by the approach of some, at least, of the staff who have responsibilities for her son. For example, she alleges that he was inadequately fed.  Her differences of opinion with the staff at Tamaki Oranga led to an earlier trespass warning as a result of her confrontations with staff members.

[4]      On 20 September 2007 she arrived at the Tamaki Oranga Unit and, without incident arranged for food intended for her son to be delivered by another member of the public to nursing staff.  But at about 8.45 pm she returned to Tamaki Oranga, walked up to the main doors, and began striking them with a hammer she had brought to the scene.  She was refused entry and returned to the carpark where she smashed the windows of three vehicles with the hammer.  Each vehicle belonged to a staff member at Tamaki Oranga.

[5]      Ms T   gave evidence at the trial.   She accepted that she had used the hammer to strike the cars, and that she did so intentionally.   She said she was so upset by her treatment at the unit, and by the plight of her son, that she had simply lashed out at anything in front of her.

[6]      Judge Andrée Wiltens found the charges to have been established, observing that the fact the appellant was upset and her reasons for her distress were immaterial.

[7]      At sentence on 27 June 2008, Ms T  ’s counsel asked that she simply be asked to come up for sentence if called upon within 12 months.  The Judge rejected that course because Ms T  , while accepting that she had deliberately struck the vehicles with a hammer, refused to accept that she was morally or legally responsible for what had occurred.   He also declined to accept the submission that Ms T  ’s work in caring for her son ought to be  considered as community work for the purposes of such a sentence.

Discussion

[8]      Ms T   asked the Court to conduct the appeal hearing in line with s 5 of the

Mental Health (Compulsory Assessment and Treatment Act) 1992, which provides:

Powers to be exercised with proper respect for cultural identity and personal beliefs

5(1)     This section applies to—

(a)      A court, tribunal, or person exercising a power under this

Act in respect of a person; and

(b)A court or tribunal conducting proceedings under this Act in respect of a person.

(2)     The power must be exercised, or the proceedings conducted,—

(a)With proper recognition of the importance and significance to the person of the person's ties with his or her family, whanau, hapu, iwi, and family group; and

(b)With proper recognition of the contribution those ties make to the person's wellbeing; and

(c)With  proper  respect  for  the  person's  cultural  and  ethnic identity, language, and religious or ethical beliefs.”

[9]      That section has direct application only where a Court, Tribunal or person exercises a power under that Act.  The present appeal does not involve the exercise of the power under the Act.   Ms T   understands that, but nevertheless asks the Court to have regard to s 5 matters by analogy.  She says that it is open to the Court, having taken into account the background to the offending, to treat her actions as unintentional.   In other words, she  asks that the Court treat her frustration and disillusionment as providing an excuse in law for her actions.

[10]     I am unable to accept that argument. Ms T   freely accepted in her own evidence that she committed the offences of which she was convicted.  Her motive is irrelevant.    The  point  she  makes  does  not  bear  on  her  criminal  responsibility, although it will be relevant to penalty – s 8(1)(i) of the Sentencing Act 2002 requires the Court to take into account an offender’s personal, family, whanau, community and cultural background when imposing sentence.

[11]     The   Judge’s   decision   to   convict   Ms   T     was   therefore   inevitable. Concurrent sentences of 100 hours community work were imposed on each of the three charges.   The Judge acknowledged that it would be difficult for Ms T   to serve that sentence, given that she was involved six days a week in the full time care of her son, but expressed the view that:

It is something that you are going to have to do.

[12]     When Ms T   was sentenced her son was in residence at the Tamaki Oranga Unit.  In October 2008 the authorities permitted him to leave the unit and to take up residence with the appellant in her home.  There, she is primarily responsible for his day to day care.  Given his multiple health difficulties (which involve the use of a wheelchair at times) it is in my view impractical for the appellant to serve a sentence of community work.  In other words, there has been a change of circumstances since the Judge imposed sentence.

Guidance on use of sentence of community work

(1)      In considering whether to impose a sentence of community work, the court must give particular consideration to—

(a)whether the nature and circumstances of the offending make it appropriate for the offender to be held accountable to the community by making compensation to it in the form of work, in addition to, or instead of, making reparation to any person in respect of the offending; and

(b)whether the sentence is appropriate having regard to the offender's character and personal history, and to any other relevant circumstances.

[14]     In my view, this Court is entitled, by reason of the change of circumstance to which I have referred, to reconsider the sentence of community work quite properly imposed upon Ms T   in the District Court.  In the light of the background to this offending, and of Ms T  ’s current responsibilities in respect of her son, this offending is sufficiently recognised by the imposition of the reparation orders which I do not propose to disturb.  But it is unnecessary in all the circumstances to require the appellant to serve a sentence of community work as well.   In reaching that conclusion I have had regard to the appellant’s personal history:  s 56(1)(b).

[15]     In the course of his sentencing remarks, Judge Andrée Wiltens observed that Ms T  ’s role in caring for her son could not properly be regarded as community work, because all parents are responsible for looking after their children.  That was a legitimate response to the suggestion that Ms T  ’s role in assisting in the care of her son at the unit qualified as community work.  But her son is now at home.  She has relieved the community, and the staff at the unit, of much of the burden of full time care by assuming those responsibilities herself.  Her burden is now significantly more onerous than that undertaken at the time of sentencing.   There is now an element of community service in Ms T  ’s care of her son.

[16]     The  appeal  against  conviction  is  dismissed.    Ms  T  ’s  appeal  against sentence is allowed and the sentence of community work is quashed.  The reparation orders made by Judge Andrée Wiltens are confirmed.

C J Allan J