W v Police HC Dunedin Cri-2007-412-71

[2008] NZHC 72

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2007-412-000071

W

Appellant

v

POLICE

Hearing:         7 February 2008

Appearances: S N Claver for Appellant

CER Power for Crown

Judgment:      7 February 2008

ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN

[1]      The appellant pleaded guilty to an offence under s3 of the Summary Offences Act 1981.   That was a charge of behaving within view of a public place, namely Castle Street, behaving in a disorderly manner that was likely in the circumstances to cause violence against property to continue.  The charge has a maximum penalty of three months’ imprisonment or a $2000 fine.

[2]      The offending occurred on 25 August 2007.  At that time there was a large number of visiting students in Dunedin because of an event that is known as the “Undie 500”.   Over the course of that weekend it appears that about 1000 people travelled to the north Dunedin area.  Many of the participants had consumed alcohol

en route and continued to consume alcohol on their arrival.  Apparently there was a

W V POLICE HC DUN CRI-2007-412-000071  7 February 2008

high incidence of disorder in the north Dunedin area as a consequence of this.  It is also apparent that a number of local people  and Otago university students  also indulged in this behaviour.

[3]      At 7.45 the defendant was at an address in Castle Street where there was a large disorderly gathering of people congregating in the front yards of houses, on the street and the roadway.  Two fires had been lit in the street a short time earlier and the fire service had been called.  They had trouble accessing the area due to the large, unruly crowd.  The fires attracted large numbers of intoxicated people and the area became a scene of increasing disorder.  The defendant was observed standing in the front yard of an address where a fire had been lit.  He picked up a beer crate and added it to the fire in order to keep it going.   The summary says that incited the crowd, which came to be even more unruly.

[4]      The appellant pleaded guilty to the offence.  It appears he did not challenge the statement of facts.  It is on the basis of that summary that he was sentenced by Judge O’Driscoll.   For an offence of this nature the sentencing notes must be described as careful and considered.   In particular because of a submission to the Judge that Mr W   should be discharged without conviction pursuant to s107 of the Sentencing Act 2002.   The Judge considered a number of factors, balanced those factors,  and  concluded  that  the  consequences  of  conviction  were  not  out  of proportion to the gravity of the offending.

[5]      Mr W   appeals.   It is said that the sentence imposed on him is manifestly excessive.   It is said an appropriate sentence was a discharge without conviction pursuant to s107 of the Act.

[6]      Section 107 of the Act reads:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[7]      What Judge O’Driscoll was  concerned with at sentencing, and what  this Court is concerned with on appeal, is whether or not the consequences of the offending are out of all proportion to the gravity of that offending.

[8]      In part, much of the argument has focused on sentences imposed on others involved in this behaviour in the north end of Dunedin.   While this incident was much larger and attracted more publicity, difficulties with student behaviour in the north end of Dunedin are well known and have been well known in this city for some time.   No student attending the university could be unaware of it unless they deliberately turned a blind eye to some of the criticism that has appeared in the local media.

[9]      The major ground (or the only ground in fact) to say that this is a manifestly excessive sentence, which I take to be another way of saying the consequences of the conviction are out of all proportion to the gravity of the offending, is that Mr W   plans, on the completion of his degree, to travel to the United States of America and to  continue  some  form  of  study  in  Florida.    It  is  said  the  consequences  of  a conviction may possibly interfere with that.  It seems the position is that the United States Embassy will neither confirm nor deny that such a conviction will lead to the refusal  of  a  visa.    Nothing  from  the  Embassy  was  placed  before  the  learned sentencing Judge.

[10]     As I say, there have been references to other sentences imposed in relation to these particular events in the north end of Dunedin.  The Crown has placed before me a summary of people called Hope, Thompson and Kruger.  Two of those involve more serious fines than here.  Another, for offending the Crown characterises as ‘less serious’ than this, was a discharge without conviction.  With respect, that particular person’s behaviour I think is as bad, if not worse, than this and it seems to me he was treated with extreme leniency.  The Court, of course, does not have the full facts and details of those cases before it.

[11]     In Police v Roberts [1991] 1 NZLR 205 the Court of Appeal said that the words “out of all proportion” point to an extreme situation which speaks for itself, and that the Court must balance all the relevant public interest considerations as they apply to a particular case. That is what this Court is required to do in this particular matter.

[12]     In the appellant’s submissions it is suggested that the learned District Court Judge failed to give appropriate weight to the range of sentences available.  Reading his judgment, I do not think that is the case.  It is said that he did not sufficiently turn his mind to the culpability of the appellant.  A reading of the decision, in particular [13] – [16], [21] and [24] make it clear that he has turned his mind to those factors. It is also said that he failed to take into account mitigating factors under s9(2) of the Sentencing Act, but clearly, again, when one reads the judgment he has taken into account those mitigating factors such as age, no prior criminal history, early guilty plea, previous good character, remorse and limited involvement in the offending.

[13]     It is also submitted that this  appellant’s  actions  were so  trivial  as  to  be negligible.  This places his offending in a vacuum.  I consider the Crown is right to say that it must be looked at contextually in an appropriate manner.   It would be artificial to look at what this man did out of context with what was going on all around him.

[14]     In this matter I consider the Judge has very carefully weighed all of the appropriate factors.   It was the exercise of a discretion.   It is necessary for the appellant to show that the Judge took into account irrelevant factors, failed to take into account relevant factors, or was plainly wrong.  I do not think that one can say that.  The highest the appellant can put this matter is that there may possibly be some impact on his future travel plans.  That is not enough.  It has not been shown to the Judge, nor has it been demonstrated to me, that the consequences of a conviction are out of all proportion to the gravity of the offending.   It follows that the appeal is dismissed.

Solicitors:

S N Claver, Dunedin

Crown Solicitor, Dunedin