Tanu v Police HC Auckland CRI 2009-404-155

[2011] NZHC 713

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-155

IRENE ROSE TANU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 February 2011

Appearances: H Phillips for Appellant

K Wendt for Respondent

Judgment:      14 February 2011 at 11:30 AM

JUDGMENT OF WHITE J

This judgment was delivered by me on 14 February 2011 at 11.30 am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Solicitors:           Crown Solicitor, PO Box 2213, Auckland 1140

Copy to:            H Phillips PO Box 147 277 Ponsonby, Auckland 1144

TANU V NZ POLICE HC AK CRI 2009-404-155 14 February 2011

[1]      The  appellant  was  charged  in  the  District  Court  at Auckland  with  four offences under the Summary Offences Act 1981:

(a)      Disorderly behaviour under s 4, for which the maximum penalty is a fine not exceeding $1,000;

(b)Obstructing a constable in the execution of his duty under s 23, for which the maximum penalty is three months’ imprisonment or a fine not exceeding $2,000; and

(c)      Resisting a constable in the execution of his duty under s 23, for which the maximum penalty is three months’ imprisonment or a fine not exceeding $2,000; and

(d)Assaulting a constable in the execution of his duty under s 10, for which the maximum penalty is six months’ imprisonment or a fine not exceeding $4,000.

[2]      Following a defended hearing on 5 March 2010 Judge R Wade in an oral judgment delivered on that date found the appellant guilty on all four charges.  The Judge then convicted and discharged the appellant on the charge of disorderly behaviour and sentenced her concurrently in respect of the other three charges to

80 hours community work with authority for the supervising officer to convert 25%

of that time to training purposes if he or she wished.

[3]      The appellant has appealed to the High Court against her convictions on all charges and, in the event that the appeals are unsuccessful, the appellant seeks discharges without conviction under s 106 of the Sentencing Act 2002.

[4]      The essential grounds of the appeal are that the District Court Judge erred by misdirecting himself on the correct test for disorderly behaviour,  and  there was insufficient evidence to support any of the charges.

Background facts

[5]      The  case  for  the  prosecution  was  based  on  the  evidence  of  two  police constables, Constables Luxford and Montgomery, who explained that at approximately 11.45 pm on 1 October 2009 in the course of conducting a vehicle search on Karangahape Road, Auckland, when they were interviewing the driver and passenger of the vehicle in a bus shelter, the appellant approached them from the other side of the road screaming loudly.

[6]      According to  Constable  Luxford,  the appellant  walked around the police patrol car and then walked directly in between him and the two people he was speaking to.  She tried to engage him in conversation in a loud voice.  He considered that she was clearly intoxicated.   He said that there were three occasions when he politely asked her to walk away, but she refused and got agitated when he wouldn’t talk to her.  After two or three minutes she began swearing, using the word “nigger” a lot, and informed the constable that she was a kick-boxer.  At that stage Constable Luxford thought that Constable Montgomery came over and warned the appellant for obstruction.  Constable Luxford said that the appellant called him a “nigger” and that all police were niggers and used a lot of four-letter words.  The appellant apparently walked away, turned around and came straight back continuing to abuse the policemen for no reason.   She was then arrested by Constable Montgomery for obstruction.  She became very angry and tried to break free from him.  She kicked out, kicking the police car and Constable Luxford had to assist Constable Montgomery in getting her into the back of their car.   She was handcuffed and transported back to the Auckland Central Police Station in the patrol car.  While she was in the car she managed to get her feet up and tried to kick Constable Luxford through the gap between the seats while he was driving the car.  This meant that he had to activate the lights and sirens and return urgently as “a priority drive back”.

[7]      Under cross-examination Constable Luxford acknowledged that Karangahape Road is a “pretty colourful” and very busy place.  Many colourful people hang out on Karangahape Road at that time of night and that certain sorts of language would be acceptable in the public area around Karangahape Road, but not the language used by the appellant which was completely inappropriate.  He also acknowledged

that, while he couldn’t hear all the words the appellant used when she was on the other side of Karangahape Road, he could definitely hear the words used when she approached them and stood between the people that he was talking to and himself. Constable Luxford denied that the appellant was pushed to the ground at any stage. He also denied that Constable Montgomery had said words to the effect “fuck off or I’ll arrest you” or “piss off you little tart”.   He acknowledged that his brief of evidence did not refer to the conversation he had with the appellant.   He did not accept that there was “no way” that the appellant would have been able to kick him in the car because she was being heavily restrained in the back seat although he agreed that none of the kicks had hit him.

[8]      In re-examination Constable Luxford explained that he knew the appellant was intoxicated based on his work experience, her bloodshot eyes and the fact that she was not walking in a straight line.  He also confirmed that Karangahape Road is an area of bars, nightclubs and the central business district to which the public have access.   To further questions from counsel for the appellant, Constable Luxford acknowledged that he did not recall smelling alcohol on the appellant and that a person wearing stilettos could possibly look intoxicated.  To further questions from the Police prosecutor, Constable Luxford said that drug use could also cause bloodshot eyes, slurred speech and not walking in a straight line.

[9]      According   to   Constable   Montgomery,   while   Constable   Luxford   was interviewing the other persons in relation to the unrelated incident he heard the appellant screaming from across the road and approaching from the Kamo Bar.  He heard her screaming “nigger” repeatedly and as she got closer screaming “fuck you pigs, fuck yous all” and that she stood between Constable Luxford and the person he was dealing with and continued screaming those things.  She was screaming at the top of her voice.   Constable Montgomery explained that when the appellant came between Constable Luxford and the person he was talking to it was not possible for Constable Luxford to continue.  Constable Montgomery said that the appellant was in a state of pure anger and was very very aggressive. After referring to his notes, he confirmed that she was abusive, yelling “fuck you pigs” and “nigger”.  He warned her for obstruction, stating that if she didn’t leave the area and leave Constable Luxford alone she would be arrested for obstruction and disorderly behaviour.  She

continued to say the same things, “nigger” and “fuck you pigs”.   She said “I am going to kill you all”; “You don’t know where I’m from, Porirua, Cannons Creek, represent.  You’re all going to die bitch”; “Fuck you cunts, fuck yous all”.  These statements were all after he warned her for obstruction.

[10]     As the appellant continued to be verbally abusive, Constable Montgomery informed her that she was under arrest for obstruction and disorderly behaviour.  As he approached her to handcuff her she tried to walk away towards 24/7 bar.   He quickly caught up to her and placed the handcuffs on her wrist. As he handcuffed her she resisted him and thrashed her elbows about, trying to stop him from putting the second handcuff on.  The first one he remembered he got on quite easily, but not the second one as she tried to move her arms away and was trying to wrestle out of my grip.  It took a matter of seconds, but it was fairly violent because she was trying to thrash her elbows out.  He then began to lead her towards the patrol car and as she walked along she continued to try to wrestle away from him.  She dropped all of her weight from her legs and she let her legs give way so he “pretty much had to hold her up”.  He managed to put her inside the car on the left-hand side of the rear of the vehicle.   He informed her of her rights and after she was calm for a matter of

30 seconds or a minute her tirade started again.

[11]     When Constable Luxford began to drive away, Constable Montgomery said that  she  was  still  screaming  at  him  and  spat  directly into  his  face.    Constable Montgomery said that her spit hit him on the left cheek.  He described the spit as a spray but said there was a definite wad that hit him on the cheek as well.  He told her not to spit on him and held the back of her head and pushed her head away from him so she couldn’t spit on him anymore.  She was also trying to kick out.  She had very sharp stilettos or stiletto high heels on and they were kicking towards Constable Luxford.   He managed  to pin her legs as well.   He confirmed that they drove “priority” back to the police station with lights and sirens going due to the behaviour of the appellant.

[12]     Under cross-examination Constable Montgomery explained that he gave the appellant her rights in the car after he had arrested her because it wasn’t practicable to  do  so  before  when  she  was  screaming  and  shouting  on  the  roadside.    He

confirmed that Karangahape Road is a colourful area frequented by all sorts of people.   He denied that he had a very intolerant view of the types of people who hang out at Karangahape Road.   He also denied that he used any bad language towards the appellant.  He confirmed to the Court that he was in uniform that night. He also denied that he had pushed the appellant to the ground.  He confirmed that he restrained the appellant in the back seat of the car in order to prevent her from spitting at him again.  He did not recall the appellant screaming for help when she was in the car.  He did not think that there were mental health issues involved in the appellant’s behaviour.   He thought she was intoxicated, although he did not recall smelling alcohol either.

[13]     The appellant gave evidence in her own defence.   She explained that she thought the police constables on the other side of Karangahape Road were talking to her cousin so she walked across on her own to investigate.  She said she spoke to the person being interviewed by the police constable and the constable told her to “piss off you little tart”.  She told the Court that the person she spoke to was not her cousin or anybody she knew.    In  her evidence-in-chief she  said  that  it  was  Constable Montgomery who told her to piss off.   She did not remember Constable Luxford saying anything to her.   She admitted that she told the police constables to “get fucked”.  She said that she did so because Constable Montgomery was calling her “a little bitch” and “a tart”.  She denied using the word “nigger” and the other words attributed to her by the police constables.  She said that she was wearing a short tight silver dress and silver stiletto high-heels.  She denied that she had been drinking or was intoxicated.  She said that Constable Montgomery pushed her to the ground and then put the handcuffs on her wrists while she was on the ground and that he then picked her up and took her to the police car.  She did not know why he was doing that and asked him “why are yous arresting me”, but he just ignored her.   She confirmed that in the police car she was on the left-hand side behind the passenger front seat and Constable Luxford was in the front driving.  She did not remember the constable giving her her Bill of Rights’ statement.  She said she was pinned in the car by Constable Montgomery against the side door of the car and that he pushed her head against the window.  She said that she was screaming because she was in pain and crying in the car.  She denied that she had spat at Constable Montgomery.  She

also denied that she was kicking the driver of the car because she was pinned in the back seat.

[14]     Under cross-examination by the police prosecutor, Ms Tanu did not resile from her evidence-in-chief.   She confirmed her evidence that she had crossed the road because she thought the police officers were talking to her cousin and that they called her “a tart” and “a bitch”.  She maintained her denial of abuse, intimidation, aggression and yelling.  In particular she denied using the language attributed to her by the police constables.   She denied that she had remained and continued to be abusive towards the police officers.  She also denied that she had been told that she was under arrest for obstruction.   She disputed Constable Montgomery’s evidence about having the handcuffs put on her wrists.  She denied having spat at Constable Montgomery or that she was intoxicated at the time.

[15]     In re-examination the appellant said that she had not been breathalysed at any time for alcohol use on that night.

[16]     No evidence was adduced for the appellant at the District Court hearing in relation to her mental health at the time of the incident in Karangahape Road on

1 October 2009 or subsequently.

District Court decision

[17]     The District Court Judge in his oral decision of 5 March 2010 summarised the evidence from the two constables and the appellant which I have referred to.  He then said:

[7]   The defendant vehemently denies that behaviour and it is a question of whether  I  am  satisfied  beyond  reasonable  doubt  that  the  Prosecution evidence is correct.

[8]   I am so satisfied and these are my reasons, first of all it is not so much that the Prosecution evidence is corroborated, one officer by the other, but more importantly (much more importantly to my mind) there are various aspects of the defendant’s evidence which are just completely implausible.

[9]   The first is that her explanation for getting involved.  She agreed that she did get involved by going over to where this car had been stopped because  she  initially  thought  that  the  person  involved  was  her  cousin.

However as soon as she got across the road she could see perfectly plainly that it was not her cousin, that it was in fact a total stranger.  However for some  reason  she  decided  to  continue  interfering  with  what  Constable Luxford was doing.  There is simply no logical or sensible explanation for her doing that other than the fact that she does not like the police.

[10]   The second part of her evidence, which I find completely implausible, is her claim that although she did swear at one stage it was only after the police officers had sworn at her, using particularly offensive terms such as “bitch” and “tart”.

[11]   I accept that police officers are human beings, they can be exasperated in the same way as any member of the public can be and I dare say that police officers may swear when they are not on duty, they may also swear even when they are on duty but I suspect that they would only do that if they were dealing with someone in private.

[12]    What seldom, if ever, would happen was that a police officer in full uniform in a crowded street like Karangahape Road would swear and shout and use language like the defendant claims was use when they were in full uniform.  For all the police officer behaving in that way would know one of the passersby might be someone of impeccable character whose complaint is likely to be taken seriously by a superior officer such as another police officer, a minister of religion or for that matter a court official or Judge. Therefore I find it extremely unlikely that either of these police officers would  behave,  certainly in  a  public  place,  in the way described  by the defendant.

[13]    Furthermore and finally, in relation to the inside of the police car, I find it impossible to believe that Constable Montgomery would have deliberately pinned the defendant up against the inside of the left hand rear door of the police car causing himself considerable discomfort, as he was wearing a safety belt at the time, unless it was necessary to restrain the defendant.

[14]    I accept his evidence unequivocally that he did indeed push her face towards the window and kept it there for the simple reason that she had successfully spat on him once and he was concerned that she might do so again.   Furthermore he was concerned at her wearing high heals [sic] and deliberately and repeatedly attempting to kick Constable Luxford who was driving.

[15]  For those reasons I find the charged proved.

Appellate approach

[18]     Both counsel accepted that the approach to a general appeal of this nature is now settled by the decision of the Supreme Court in Austin, Nichols & Co Inc v

Stichting Lodestar.1   This Court is required to reach its own view on the merits of the

1 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [5], [13] and [16].

appeal.  In deciding whether it has been persuaded that the decision under appeal is wrong, this Court must form its opinion as to the acceptability and weight to be given to the evidence.  In forming its own opinion on the evidence, this Court may recognise the advantage that a District Court Judge had in seeing and hearing the witnesses when an issue of credibility arises and may hesitate to conclude that the Judge’s findings of fact or fact and degree were wrong.

Submissions for appellant

[19]     Counsel for the appellant advanced three principal submissions:

(a)      The District Court Judge erred by misdirecting himself on the correct test for a disorderly behaviour charge laid down by the Supreme Court in Brooker v Police2   as applied in Thompson v Police.3

(b)On the obstruction charge, there was insufficient evidence that the appellant possessed the requisite mens rea at the material time.   In addition, even if she did behave in an obstructive fashion, such actions were in  response to  behaviour  from  the police  officers concerned which departed from the lawful exercise of their legal duties.

(c)      In respect of the remaining charges, the learned Judge failed to fully consider the appellant’s version of events, drew inferences and conclusions which were not supportable by the police officers’ evidence, and failed to consider the contradictory aspects of the officers’ evidence.

[20]     In the course of argument, however, counsel for the appellant acknowledged that:

(a)      evidence from members of the public would be helpful, but was not essential to establish the charge of disorderly behaviour;

(b)if the evidence from the police constables was accepted, then the Court would be entitled to draw the inference that the appellant had the requisite mens rea for the obstruction charge; and

(c)       it  was  difficult  to  overcome  the  District  Court  Judge’s  credibility

findings.

Submissions for the Crown

[21]     It was submitted for the Crown, on the basis of a comprehensive analysis of the evidence adduced at the hearing in the District Court, that the District Court Judge’s credibility findings were open to him and that each of the charges was therefore proved beyond reasonable doubt.

[22]     After referring to the decisions in Brooker and Timoti v New Zealand Police,4

Counsel acknowledged that the finding of disorderly behaviour was borderline, but, as an alternative, a charge of offensive language under s 4(1)(c)(i) or (ii) could be substituted because, on the basis of the appellant’s acknowledgement in evidence, the District Court Judge had made a specific finding to that effect: cf ss 43 and

121(6) of the Summary Proceedings Act 1957 and Thompson v Police.5

[23]     Counsel submitted that the fact that the evidence of the two constables was not entirely consistent in all respects did not mean that the District Court Judge was not entitled to accept it.  Indeed it might have been of concern if their accounts had matched up word for word.

[24]     Counsel acknowledged that the Judge had erred in concluding that Constable Montgomery had been wearing a seat belt as this was not clear from the evidence.  It was submitted, however, that a finding that the elements of the assault charge were met did not rest on the Judge’s finding of discomfort as a result of wearing a seat belt.

[25]     The District Court Judge expressly considered and rejected the appellant’s explanations. The appellant had not discharged her burden of showing that the Judge was wrong and the convictions in respect of the charges should be dismissed.

Discussion

[26]     Having read the transcript of the evidence in the District Court, which I have summarised above, I am satisfied that, with the exception of the seat belt finding, the factual findings made by the Judge were correct.   In particular I accept that the District Court Judge was able to make the findings of credibility and reliability on the basis of the evidence adduced at the hearing and that there is no reason for me to disturb those findings.  As accepted by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, I am entitled to recognise the advantage which the District Court Judge had in seeing and hearing the witnesses when he made findings of credibility and reliability.

[27]     None of the submissions advanced for the appellant causes me to decide otherwise.   On the contrary, the appellant’s admission that she used at least some offensive language and the evidence of the police constables as to her apparent intoxication and general behaviour support the conclusions reached by the District Court Judge and undermine the appellant’s story.

[28]    I agree with the submission for the Crown that the existence of minor discrepancies between the evidence of the two police constables serves to reinforce rather than to undermine their evidence.   I also agree with the submission for the Crown that the mistake made by the District Court Judge about the seat belt was not material to the decision in relation to the assault charge.  It did not detract from the Judge’s finding of credibility in favour of the constable that the appellant had spat on him.

[29]     The absence of any evidence as to the appellant’s mental health at the District Court hearing and the absence of any application to adduce such evidence in support of the appeals against conviction means that this is not a factor relevant to determination of the appeals.

[30]     On the basis of the District Court Judge’s factual findings were correct, I now turn to consider the four charges separately in order of relative seriousness.

Assaulting a constable in the execution of his duty

[31]     Once the evidence of Constable Montgomery that the appellant spat on him in the police car on the way back to the police station is accepted, there can be no dispute that the elements of the charge under s 10 of the Summary Offences Act

1981 were established: Police v Raponi.6    Counsel for the appellant did not submit

otherwise.

Resisting a constable in the execution of his duty

[32]     Similarly, once the evidence of the two constables about the difficulties they encountered in arresting the appellant is accepted, there can be no dispute that the elements of the charge under s 23 of the Summary Proceedings Act were established: Smith v Police.7  Again counsel for the appellant did not submit otherwise.

Obstructing a constable in the execution of his duty

[33]     In respect of this charge, as already noted, it was submitted for the appellant that there was insufficient evidence of mens rea on the part of the appellant and that, if she did behave in an obstructive fashion, it was in response to police provocation.

[34]     As also already noted, counsel for the appellant acknowledged that, if the evidence of the two police constables was accepted, then the Court would be entitled to draw the inference that the appellant had the requisite mens rea for this charge.

[35]     The evidence of the two police constables, which I have accepted, was that the appellant did obstruct Constable Luxford in the course of his duties when she crossed Karangahape Road and prevented him from continuing to question the other person, who was not known to the appellant, in connection with the unrelated matter.

As there could be no dispute that the two constables were acting in the course of

6 Police v Raponi (1989) 5 CRNZ 291 at 296.

7 Smith v Police (1988) 3 CRNZ 262 at 266-267.

their duties, the Court is entitled to draw the inference from the appellant’s actions

that she had the requisite mens rea to establish the charge of obstruction.

[36]     Acceptance of the evidence of the two police constables also means that the submission for the appellant that she was provoked by them is not established.   I accept their evidence that they did not use the language alleged by the appellant.  I agree with the District Court Judge that it is inherently unlikely that  uniformed constables on duty in a public place like Karangahape Road would have spoken to a person like the appellant in the way she suggested.

[37]     The elements of this charge under s 23 of the Summary Offences Act 1981 were therefore established.

Disorderly behaviour

[38]     Although relatively extensive submissions were made for the appellant in relation to the charge of disorderly behaviour, it does need to be noted that on this charge the appellant was convicted and discharged by the District Court Judge and that, in any event, as counsel for the Crown pointed out, an alternative charge of offensive language under s 4(1)(c)(i) or (ii) of the Summary Offences Act could be substituted on  the basis of the appellant’s  own  evidence  and  the District  Court Judge’s finding.

[39]     It is therefore unnecessary to embark on a further analysis of the Supreme Court decision in Brooker : cf Timoti at [20]-[27].  It is sufficient to find on the basis of the evidence of the two police constables, which has been accepted, that the appellant’s behaviour in Karangahape Road, a public place, involved loud offensive language  in  an  intoxicated  state  which  disrupted  the  police  constables  in  the execution of their duties and which therefore can properly be described as causing a substantial disturbance to the constables.  Counsel for the appellant did not suggest that any Bill of Rights dimension was involved: cf Brooker and Timoti at [42] - [46].

[40]     The elements of the charge of disorderly behaviour under s 4(1)(a) of the

Summary Offences Act 1981 were therefore established.

[41]     For completeness, I note that if I were wrong in this conclusion I would have been prepared to substitute a charge of offensive language which was clearly established on the evidence.

Sentence

[42]     The District Court Judge sentenced the appellant on 5 March 2010 following his decision that the charges had been proved.   His notes of sentencing read as follows:

[1]    Irene Tanu, I am not without sympathy for you in the light of your evidential mental health issues.  But in the light of the prior convictions, two of them for assaulting police officers, I think it is necessary that there be some punitive element.  I accept that you are not in a position to deal with any fine.

[2]     In the circumstances, I propose to make a community work order concurrently in respect of three of the charges.  That will be an order for 80 hours’ community work.  The supervising officer may convert 25 per cent of that time to training purposes if he or she wishes.

[3]  In respect of the disorderly behaviour charge, which is finable only, you will simply be convicted and discharged.

[43]     For the appellant it was submitted that if the appeals against conviction failed she should be discharged without conviction.  Reference was made to ss 106 and 107 of the Sentencing Act 2002 and the decision in R v Hughes.8   It was submitted for the appellant that her culpability was low because:

(a)      She was in fact suffering from mental health issues at the relevant time.

(b)She had been subject to domestic abuse and degradation in the months prior to the incident, in addition to suffering from grief over the loss of her father and was emotionally traumatised.

(c)      Notwithstanding the District Court Judge’s rejection of her defence in

its entirety, only a relatively modest penalty of 80 hours of community work was ordered.

8 R v Hughes [2009] 3 NZLR 222 (CA) at [7] and [8].

(d)At  worst,  the  appellant’s  offending  should  be  described  as  the culmination of a series of bad decisions and that instead of minding her own business, she had chosen to engage in conflict with two police officers having earlier believed she saw her cousin across the road.

[44]     In support of these submissions the appellant provided an affidavit sworn on

4 October 2010 in which she deposed that following the incident on 1 October 2009 she was admitted to Tiaho Mai Hospital for mental health treatment.  She produced a copy of an application for a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 dated 9 November 2009 which indicated  that  she  had  undergone  a  14  day  assessment  which  commenced  on

26 October 2009, and recorded that she was mentally disordered and should be subject to a compulsory order.  The appellant also produced a letter from the Capital and Coast District Health Board dated 14 October 2010 stating that she was admitted to Te Whare O Matairangi (Ward 27) at Wellington Hospital on 21 September 2010 and that after she absconded on 30 September 2010 she was placed on AWOL status and returned to the ward by the police on 5 October 2010.  She also referred in her affidavit to the fact that her father died of cancer in August 2009 and that she began drinking heavily and became involved with her ex-boyfriend’s father.  She deposed that on the day her father died her partner beat her up and that she went to her father’s funeral with bruises.

[45]     It was submitted for the Crown that the onus was on the appellant to show that the sentence imposed by the District Court Judge was  clearly excessive or inappropriate: s 121(3)(b) of the Summary Proceedings Act 1957.  It was submitted that the sentence of community work imposed by the District Court Judge was not outside the range of available sentences.  This was not a case where the appellant should be discharged without conviction.  The consequences of conviction were not out of all proportion to the gravity of the appellant’s offending.

[46]     Counsel  for  the  appellant  acknowledged  in  reply  that  the  sentence  of community work was available and not outside the appropriate range.   She also acknowledged that there was no medical or other evidence to suggest that there

would be any adverse consequences for the appellant from serving the community work sentence.

[47]     The question whether the appellant should be discharged without conviction is to be determined under ss 106 and 107 of the Sentencing Act 2002 as interpreted by the Court of Appeal in R v Hughes at [8]-[12] and [36]-[53]. The starting point is that the Court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence(s).

[48]     Like the District Court Judge, I am not satisfied that convictions for the three offences of assaulting a constable in the execution of his duty, resisting a constable in the execution of his duty and obstructing a constable in the execution of his duty would be out of all proportion to the gravity of the offences.  My reasons are:

(a)      The charges were serious, brought under provisions of the Summary Offences Act 1981 which are designed to assist the police in performing their public duties and maintaining public order.

(b)The appellant’s offending under these provisions was serious because it prevented the constables from carrying out their duties.   Her behaviour could not be described as either trivial or technical.

(c)      While under s 8(h) of the Sentencing Act 2002 a disability may be a mitigating factor, there was no evidence that the appellant’s mental health made the convictions disproportionately severe.

(d)There was also no other evidence to establish that convictions would have any disproportionate consequences for the appellant.

[49]     On the basis of the acknowledgment made by Counsel for the appellant that the sentence imposed by the District Court Judge was within the available range, I therefore do not consider that the sentence was clearly excessive or inappropriate.  I agree with the District Court Judge that the level of culpability of the appellant and the lack of evidence as to any demonstrable consequences of conviction in respect of

the  three  charges  on  which  she  was  sentenced  was  such  that  it  would  be inappropriate to discharge her without conviction.   I also agree with the District Court Judge that while the appellant is entitled to sympathy for her mental health issues, in the circumstances of this case they do not mean that the sentence imposed was wrong.

Result

[50]     For  the  reasons  given  the  appeals  against  conviction  and  sentence  are dismissed.

D J White J