Waaka v Police HC Dunedin CRI-2007-412-000016

[2007] NZHC 1797

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2007-412-000016

MICHAEL LEE WAAKA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 June 2007

Counsel:        Appellant In Person

C E R Power for Respondent

Judgment:      6 June 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      Mr Waaka appeals against sentences imposed in relation to two offences of theft  and  one  of using  offensive  language.    On  24  March  he  stole  fruit  and  a newspaper from the foyer area of a residential hall at the university.  Mr Waaka, I note, lived immediately next door.

[2]      Then on 17 April he again took a copy of the Otago Daily Times and when spoken to by the head of the hall, he used grossly offensive language in response to

her.

M L WAAKA V NZ POLICE HC DUN CRI-2007-412-000016  6 June 2007

[3]      The appellant appeared in the District Court on 26 April with reference to all three charges.  He entered immediate pleas of guilty and was fined the sum of $200 on each of the theft charges, $500 on the offensive language charge, and ordered to pay court costs of $130 on each charge.  Hence the total fine was $900 plus court costs of $390.

[4]      At that appearance Mr Waaka was represented by the duty solicitor.   It is difficult to tell what was said about the appellant’s financial circumstances.  I have asked him a number of questions about that aspect today.   In January of this year Mr Waaka returned from Sweden where he has been for a period teaching English. He has enrolled at the Polytechnic and is seeking to obtain a qualification which will enable him to resume English teaching.  He presently supports himself by working part-time as a kitchen hand and by receiving an allowance from WINZ.  His weekly income appears to be about $280.   Unsurprisingly, in imposing the sentence the Judge said little about the case, although he made reference to the appellant’s lengthy criminal  conviction  list  and  to  the  “disgraceful  and  disgusting”  nature  of  the language which was used to the head of college.   No reference was made to the appellant’s financial circumstances.

[5]      It seems to me that the fines in total are excessive, given this appellant’s means.  Section 40 of the Sentencing Act provides that in determining the amount of a fine the court must take into account the financial capacity of the offender.  Once that is done it seems to me inevitable that the present penalties must be regarded as excessive.    The thefts were very minor  offences of their  kind.    They are  most reprehensible for their arrogance.  It seems the appellant took the view that because this was a residential college he could act as he saw fit and then to make matters worse, when he was brought to account, he responded in a way which was totally offensive and over the top.

[6]      With reference to his criminal record he has quite a significant number of convictions incurred in the 1980s when he was in his teens.  This culminated in a six month sentence of imprisonment imposed in 1991, but for an offence which was committed some few years earlier.  I do not doubt it was appropriate to have some regard to his past, but as I have already said the Judge also had to have regard to the

appellant’s financial means and this was not done.   For these reasons I allow the appeal.

[7]      In relation to the thefts, to my mind the real penalty is the entry of conviction in itself, and on those the appellant will be convicted and discharged.

[8]      With reference to the offensive language, I allow the appeal and substitute a fine  of $300.           The  orders to  pay court  costs will stand,  meaning  that  the  total

financial penalty is $690 rather than almost twice that sum.

Solicitors:

Appellant – Mr M L Waaka, Flat 4, 919 Cumberland Street, Dunedin
Wilkinson Adams Lawyers, Dunedin for Respondent