The Queen v William John O'Hara
[2000] NZCA 222
•28 September 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 302/00 |
THE QUEEN
V
WILLIAM JOHN O’HARA
| Hearing: | 28 September 2000 (at Auckland) |
| Coram: | Heron ACJ Tipping J Anderson J |
| Appearances: | P M Hardie for Appellant |
| P K Hamlin for Crown | |
| Judgment: | 28 September 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
Nature of the Appeal
The appellant was arraigned in the District Court on a single count that contrary to s 87 of the Crimes Act 1961 he took part in a riot on 1 January 1999 at Waihi beach. Having pleaded guilty, he was sentenced to one month’s imprisonment and he now appeals against that sentence.
The facts are that on New Year’s Eve 1998 several hundred revellers gathered at the northern end of Waihi beach to celebrate the New Year. Alcohol was consumed to excess and the crowd got out of hand. At about 11 p.m. a motorcar was overturned and set on fire. When the police and fire services responded they were confronted by about 100 people in an intoxicated and volatile mood. People in the group began throwing bottles at the police and fire officers. That group was eventually dispersed, but a larger crowd then gathered at the intersection of Ocean View Road and Beach Road. Again disorderly conduct involved the throwing of bottles but the group was dispersed. Yet another group had formed at the beach end of Ocean View Road and many members of that group also threw bottles at the police. They ignored requests to disperse but eventually, after confrontations with police wearing riot equipment and using police dogs, the rioters disbanded and went their various ways. In the final stages of the riot the appellant, recognisable because he was wearing a red Father Christmas hat, was seen to throw two bottles at the police. Later, when the riot had subsided, the appellant was recognised in the street because of his hat and he was arrested on a charge of rioting. He subsequently asserted that he had joined the crowd at a very late stage and there is no evidence contradicting this.
Course of the Prosecution
The appellant was charged indictably pursuant to s 87 of the Crimes Act 1961, which provides as follows:-
(1) A riot is a group of 6 or more persons who, acting together, are using violence against persons or property to the alarm of persons in the neighbourhood of that group.
(2) Every member of a riot is liable to imprisonment for a term not exceeding 2 years.
Having elected trial by jury, the appellant proceeded to a deposition hearing and was committed for trial. He took issue before trial with the admissibility of an alleged admission made by him immediately upon being detained by the police that he had thrown two bottles. On a pre-trial application the District Court ruled such alleged admission inadmissible. The appellant then applied for a discharge pursuant to s 347 of the Crimes Act 1961, but the District Court held there was sufficient evidence to go to a jury on the matter of identification, in particular, and the appellant subsequently decided to plead guilty.
The Judge’s Reasons for Sentence
The sentencing Judge acknowledged that although a number of people had thrown bottles at the police, the appellant was the only one who had been charged under the Crimes Act 1961 with rioting. He did not consider it appropriate to speculate why this was so when others had been dealt with by way of charges for summary offences. The Judge noted that the appellant had pleaded guilty but considered such plea to be inevitable in view of the fact that the appellant had acknowledged to the police that he had thrown two beer bottles. In fact evidence of his acknowledgement had been excluded, as previously mentioned, and the appellant’s guilty plea occurred in the context of a prosecution case, the cogency of which had been reduced accordingly. In the course of his sentencing remarks the Judge noted that the incidents of the evening had occurred in poor lighting and in connection with a large crowd appearing as one mass. He said, however, that when a person is identified as acting in the way the appellant acted – throwing beer bottles at the police as part of a crowd reaction – the Court should not be hesitant to take the opportunity to make an example of that person. This was for the purposes of deterrence. The Judge considered that throwing empty beer bottles at anyone was clearly an act that exposed them to serious harm. He considered that throwing beer bottles at uniformed police officers in a tense situation had the potential to cause serious harm and accordingly s 5 of the Criminal Justice Act applied. He found there were no special circumstances relating either to the appellant or to the offence which indicated that the appellant should not be sentenced to a full time custodial sentence. The Judge noted that the appellant was a first offender and was considered by the probation officer to be at a low risk of re-offending. Taking that into account and the guilty plea, the Judge considered one month’s imprisonment was sufficient to meet the justice of the matter.
Disparity of treatment compared with other offenders
On behalf of the appellant leave was sought to place before this Court evidence relating to the treatment of other persons involved in similar incidents at Waihi beach and Whangamata. We are satisfied that the information could not reasonably have been available to the appellant at the time of sentencing and that it does have cogency in relation to the present appeal. Counsel for the Crown does not object to its admission and we received it accordingly.
The evidence is by way of an affidavit from a practising solicitor who appeared as the duty solicitor in the Waihi District Court on 7 January 1999 at the first sitting in that Court for the New Year. The solicitor deposes that a number of the people appearing before the Court that day were doing so in regard to offences which occurred during the disturbances in the area. She says that 20-30 were involved directly in that disorder and most were charged under the Summary Offences Act with disorderly and/or riotous behaviour. The offences involved throwing bottles during the disturbances, assaulting police, and general disorderly offences. Those who pleaded guilty were dealt with summarily by way of a fine and no-one was imprisoned. The solicitor continued to act for two of the people she had appeared for as duty solicitor. One was an 18 year old man, a first offender in employment, whose offence involved throwing bottles at the police in similar disturbances at Whangamata. He was charged with riotous behaviour pursuant to s 3 of the Summary Offences Act 1981, which provides as follows:-
Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2000 who, in or within view of any public place, behaves, or incites or encourages any person to behave, in a riotous, offensive, threatening, insulting, or disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue.
The sentencing Judge on that occasion, who was not the Judge in respect of the present matter, mentioned the need for the sentence on that offender to reflect the sentences he had imposed on others and the actual sentence was 60 hours community service.
The solicitor acted for another person who, like the present appellant, was charged with riot pursuant to s 87 of the Crimes Act 1961 in connection with events at Waihi. That person also elected trial by jury and was remanded to a deposition hearing on 28 April 2000. On that day the charge was amended to riotous behaviour under s 3 of the Summary Offences Act 1981, the offender pleaded guilty and was sentenced to 60 hours community service. The facts outlined in the caption sheet for that offender do not seem materially different from those applicable to the appellant.
Part of the case on appeal includes particulars of an adult woman who was complicit in bottle throwing and who had made vulgar gestures towards police ranks. This Court has a copy of the sentencing notes in respect of that offender who was convicted and sentenced in respect of s 87 of the Crimes Act 1961. In laconic terms the sentencing Judge convicted and discharged that person.
Grounds of Appeal and Opposition
There are two principal grounds of appeal. First, the sentencing Judge was wrong to regard s 5 of the Criminal Justice Act as applicable to the appellant’s conduct. For s 5(1) to apply the Court had to be satisfied, amongst other things, that in the course of committing the offence the appellant caused serious danger to the safety of any other person. The Judge was satisfied that throwing beer bottles at the police in a tense situation clearly had the potential to cause serious harm to them. Implicit in the terms used by the Judge is the proposition that the potential to cause serious harm is equivalent to causing serious danger to the safety of the police.
Counsel for the appellant submits, in effect, that throwing two bottles towards police lines in the circumstances obtaining cannot be categorised as the appellant himself rather than the riot as an entity causing serious danger to the safety of the police. In addition to the conceptual or semantic distinction involved, counsel submits that in fact serious danger was not caused by the appellant. He submitted that the police were in riot gear and there is no evidence that despite the nature of the disturbances any police officer was actually injured. We note, however, that the police caption sheet states that a number of police officers were hit by bottles and injuries were suffered. These ranged from cuts to deep bruising.
The second principal ground of appeal is unjust disparity with persons whose conduct was in all essential respects identical whether charged pursuant to s 87 of the Crimes Act 1961 or s 3 of the Summary Offences Act 1981. Invoking the well settled principle, emphasised in many decisions of this Court, that disparity in sentences as between co-offenders may lead to a reduction of a sentence on appeal if, but only if, the disparity is so marked as to lead objectively to the conclusion, when all the circumstances are known, that the administration of justice has miscarried, counsel submits this is just such a case. Counsel also submits that it was wrong for the Judge to depreciate the value of the appellant’s guilty plea by reference to an alleged admission which had been ruled inadmissible because it breached the New Zealand Bill of Rights Act.
The Crown submitted that the District Court was correct to consider that s 5 of the Criminal Justice Act applied and that there were no special circumstances of the offender or the offence. He submitted that the value to be attached to the guilty plea was rightly regarded as affected by evidence that the appellant was seen to throw bottles. Counsel argued that it was not inappropriate to make an example of a single offender. We note, however, that this is not a case of identifying one of a crowd and making a singular example, but of treating one known offender differently from others who were also charged. Counsel further submitted that the perception of the police that the appellant was a long staying, hard core participant explains why the appellant was charged under the Crimes Act when others were charged under the Summary Offences Act.
Assessment of the Appeal
Whether in the circumstances the appellant could properly be regarded as causing serious danger to the safety of the police when, according to him, he came upon the tail end of the disturbance and threw two bottles at the police, is a subtle question, but we do not disagree with the sentencing Judge. Identical conduct in respect of other people did not raise such an issue because the maximum period of imprisonment pursuant to s 3 of the Summary Offences Act 1981 is only three months and s 5(1) of the Criminal Justice Act 1985 requires conviction of an offence punishable by imprisonment for a term of two years or more. In the circumstances of this case a presumption of imprisonment applies merely because this appellant has been charged under one statutory provision and other persons guilty of seemingly identical conduct were prosecuted under a different statute. We are satisfied that the absence of any distinction between this offender and his actual conduct from other offenders who were dealt with by community based sentences, or even with no penalty other than the fact of conviction, amounts to special circumstances of the offence or of the offender which displace the presumption of imprisonment pursuant to s 5(1) of the Criminal Justice Act. We are also satisfied that there is an unjust disparity within the scope of the principle referred to above which leads objectively to the conclusion that the administration of justice has miscarried. In coming to these views we have had the benefit of more information than was available to the learned sentencing Judge.
We wish to make it quite clear, however, that but for the unjust disparity the appeal would have been dismissed. The danger to police, fire officers, citizens, and property created by violent, drunken crowds of revellers justifies sternly deterrent sentences. As counsel for the appellant acknowledged, if others who had offended similarly to this appellant had been sentenced in a similar way, the appeal would hardly have been arguable.
For the above reasons the appeal against sentence is allowed. The sentence of one month’s imprisonment is quashed and in lieu a sentence of community service will be imposed. The appellant has been in custody for about four days, in view of which some reduction is made in respect of the hours. The sentence will therefore be 40 hours community service.
Solicitors:
Jones Howden, Matamata for Appellant
Crown Solicitor, Auckland
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