Eastwood v Police
[2023] NZHC 3885
•22 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2023-404-149
[2023] NZHC 3885
BETWEEN VINCENT EASTWOOD
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI 2023-404-150 BETWEEN
WILLIAM TE KAHIKA
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 31 July 2023 Appearances:
P Borich KC and M Hague for Mr Te Kahika N Batts for the Mr Eastwood
M Nathan for the New Zealand Police
Judgment:
22 December 2023
Reissued:
2 February 2024
JUDGMENT OF CAMPBELL J
[Appeals against Conviction and Sentence]
This judgment was delivered by me on 22 December 2023 at 12.00 pm
Registrar/Deputy Registrar
EASTWOOD and TE KAHIKA v NEW ZEALAND POLICE [2023] NZHC 3885
[1] Mr Te Kahika and Mr Eastwood were each convicted by Judge P Winter in the District Court under s 26 of the COVID-19 Public Health Response Act 2020 (the COVID Act) of intentionally failing to comply with an Order under the COVID Act by organising a gathering in an outdoor place in an alert level 4 area, and of intentionally failing to comply with the Order by attending a gathering in any outdoor place in an alert level 4 area.1 Judge Winter sentenced Mr Te Kahika to four months’ imprisonment in respect of the “attending” charge and convicted and discharged him on the “organising” charge.2 Mr Eastwood was sentenced to three months’ imprisonment.3
[2]Mr Te Kahika and Mr Eastwood appeal both their convictions and sentences.
Background
[3] On 17 August 2021, the New Zealand Government announced a new COVID- 19 community outbreak in New Zealand. In response, the Minister for COVID-19 Response made the COVID-19 Public Health Response (Alert Level Requirements) Order (No 9) 2021 (the COVID Order) under the COVID Act. The COVID Order came into effect at 11.59 pm on 17 August 2021.
[4] The COVID Order defined an “alert level 4 area” as the whole of New Zealand. Clause 15 required all persons within the alert level 4 area to stay at home, subject to some exceptions. This was generally referred to as a lockdown.
[5]Clause 21 of the COVID Order provided:
Prohibition on gatherings in outdoor places
(1)A person must not attend a gathering in any outdoor place in an alert level 4 area.
(2)A person must not organise a gathering in any outdoor place in an alert level 4 area.
The COVID Order had a definition of “gathering”:
1 New Zealand Police v Eastwood [2022] NZDC 23022.
2 New Zealand Police v Eastwood [2023] NZDC 6485 at [41]–[42].
3 At [46]–[47].
gathering—
(a)means people who are intermingling in a group; but
(b)excludes people who remain at least 2 metres away from each other so far as is reasonably practicable
[7]Section 26(1) of the COVID Act provides:
A person commits an offence if the person intentionally fails to comply with a COVID-19 order.
[8] Mr Te Kahika and Mr Eastwood were in Te Awamutu on 17 August 2021 when they heard about the imposition of the lockdown. Together, they decided to organise a protest against the lockdown the next day, outside the Television New Zealand (TVNZ) building in Victoria Street, Auckland. They promoted the protest on the internet. They asked for donations for their expenses of organising the protest.
[9] On the morning of 18 August 2021, at 7.55 am, Mr Te Kahika sent a text message to a police officer (with whom he had liaised about previous protests) advising that he would be protesting in Auckland at midday at TVNZ. The officer called Mr Te Kahika to tell him that the COVID Order had come into effect and did not allow gatherings and that people may be liable to be arrested. Mr Te Kahika told the officer it was his right to protest under the New Zealand Bill of Rights Act and that he was aware of the COVID Order. Mr Te Kahika told the officer he estimated about 200 people would attend the protest.
[10] The protest went ahead. About 80 to 100 people attended, including Mr Te Kahika and Mr Eastwood. According to Police, there was no social distancing between any of the protestors. Some of the protestors physically embraced Mr Te Kahika. At trial, Mr Te Kahika said that most of the protestors were not two metres apart.
[11] Mr Te Kahika addressed the protestors. During a pause in his address, a Police Sergeant approached Mr Te Kahika and read a notice to him. The notice told Mr Te Kahika that he was in breach of the COVID Order by organising and attending a gathering. Once the Sergeant had finished reading the notice, Mr Te Kahika refused
to accept the notice, instead walking away towards protestors. A short time later, Police arrested Mr Te Kahika.
[12] The Sergeant then approached Mr Eastwood and read a notice in the same terms to him. After it was read, Mr Eastwood refused to accept the notice. He was subsequently arrested.
District Court judgment: conviction
[13] Judge Winter said that the elements of the charges faced by Mr Te Kahika and Mr Eastwood were that:4
(a)The COVID Order was in effect. (This was not in dispute.)
(b)Mr Te Kahika and Mr Eastwood did not comply with that Order.
(c)Their failure to comply was intentional.
[14] The Judge then outlined the evidence in considerable detail. I refer to the relevant parts of the evidence below.
[15] The Judge reminded himself that the defendants did not have to give evidence and that it was for the prosecution to prove each element of the charges beyond reasonable doubt.5
[16] The Judge said that as soon as Mr Te Kahika and Mr Eastwood became aware of the lockdown, they set about organising a gathering.6 He found that they both intentionally chose not to comply with the COVID Order.7
[17] The Judge then addressed the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). The Judge said the COVID Order was a restriction on rights guaranteed under the Bill of Rights Act and it was therefore necessary to interpret the
4 New Zealand Police v Eastwood [2022] NZDC 23022 at [5].
5 At [71].
6 At [72] and [106].
7 At [73] and [105].
Order in a rights-consistent manner, as mandated in R v Hansen.8 If there was an inconsistency, a determination was required as to whether the inconsistency was justified.9
[18] Judge Winter noted that s 9(1)(ba) of the COVID Act provides that the Minister, when making an order under that Act, must “be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the … Bill of Rights Act”. The Judge said the Minister must therefore have considered that the COVID Order was a justified restriction of certain rights, including the right of public protest. His Honour said that the Court of Appeal had previously held that the COVID-19 pandemic could justify such restrictions. He held that the Order was validly enacted “so far as I have jurisdiction to determine”.10
[19] The defendants argued that a rights-consistent interpretation of the COVID Order was to read in a clause permitting peaceful protest. The Judge rejected the argument.11
[20] The defendants also argued that there was a sufficient two-metre distance between the protestors. The Judge said there may have been times when persons were two metres apart but there were many times when they were not.12
[21] Judge Winter said that the defendants also argued that s 26(1) of the COVID Act requires the prosecution to prove the defendants intentionally failed to comply with the COVID Order. The Judge said that interpretation would “contradict the purpose of the Order and its provisions”.13 At first blush this was an odd statement, given that s 26(1) says that a person commits an offence if the person “intentionally fails to comply with a COVID-19 order”. But it appears the Judge treated the argument as being that the prosecution had to prove that the defendants knew that their (intentional) actions constituted a failure to comply with the COVID Order. This is because the Judge, in rejecting the argument, referred to the principle that
8 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
9 At [82].
10 At [83]–[85].
11 At [86]–[89].
12 At [91].
13 At [92].
“ignorance of the law is no excuse”. The Judge also said that, even if the defendants’ argument were accepted, he found that the defendants “were both aware that they were intentionally failing to comply” with the COVID Order.14
[22]Finally, the Judge said:15
Although it is not an element of the charge which required proof by the prosecution, I find that there was no social distancing, that is distancing of two metres or more between those at the gathering …
[23] For these reasons, the Judge found Mr Te Kahika and Mr Eastwood guilty of the charges they faced.
District Court judgment: sentencing
[24] The maximum penalty for the charge of attending a gathering in breach of the COVID Order is six months’ imprisonment. Judge Winter found that Mr Te Kahika’s offending was at the upper end of seriousness, if not the most serious for this type of offending. The Judge said that, further, Mr Te Kahika did not respond to multiple warnings to disperse and had shown no remorse. His Honour adopted a starting point of five months’ imprisonment, allowed ten per cent for previous good character and ten per cent for time spent subject to restrictive bail conditions. The end sentence was four months’ imprisonment.
[25] The Judge treated the charge of organising a gathering in breach of the COVID Order as an infringement offence. His Honour convicted and discharged Mr Te Kahika on that charge.
[26] The Judge accepted that Mr Eastwood’s role was slightly less serious than Mr Te Kahika’s. He adopted a starting point of four months’ imprisonment. He allowed ten per cent for previous good character and ten per cent for time on restrictive bail. The end sentence was three months’ imprisonment for the charge of attending the gathering. The Judge convicted and discharged Mr Eastwood on the charge of organising a gathering.
14 At [93]–[94].
15 At [102].
The conviction appeals
Principles governing conviction appeals
[27] To succeed on their conviction appeals, the appellants must, under s 232(2)(b) and (c) of the Criminal Procedure Act 2011 (the CPA), establish that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason. A miscarriage of justice means, relevantly, any error or irregularity in or in relation to the trial that has created a real risk that the outcome of the trial was affected.16
Grounds of appeals
[28] In large part, Mr Te Kahika and Mr Eastwood advanced the same grounds for their conviction appeals.
First ground: cl 21 of the COVID Order was unlawful
[29] The appellants say that cl 21 of the COVID Order was unlawful because it was an unjustified limitation on rights guaranteed by the Bill of Rights Act. Mr Te Kahika says cl 21 was unlawful also because the Minister failed to comply with statutory notice requirements before the Order commenced.
[30] An initial issue raised by this ground is whether the appellants are entitled to mount a collateral challenge in this criminal proceeding to the lawfulness of cl 21, or whether such a challenge must be made by way of a separate judicial review proceeding. This collateral challenge issue was not raised by any party in the District Court, and so was not addressed by Judge Winter.
[31] The law governing collateral challenges was summarised by Venning J in Grueber v New Zealand Transport Agency:17
[16] In summary, while a collateral challenge may, in principle, be raised in the defence of a criminal prosecution, whether it is applicable in any particular case will depend on the circumstances of the case. That requires consideration of the challenged act, bylaw or decision in issue, the relationship
16 Criminal Procedure Act 2011, s 232(4).
17 Grueber v New Zealand Transport Agency [2014] NZHC 2924, [2015] NZAR 54.
between the decision-maker and prosecuting authority, the nature of the alleged offending and the statutory context.
[32] Whether the lawfulness of the COVID Order can be collaterally challenged in a criminal proceeding was at issue in Chapman v Police.18 Mr Chapman was charged in the District Court with intentionally failing to comply with the COVID Order by attending an outdoor gathering on 19 August 2021 in protest against the Order. He wished to defend the charge by challenging the validity of the Order, which he said breached his rights under the Bill of Rights. The District Court Judge held, in a pre-trial ruling, that Mr Chapman could not make a collateral challenge. Mr Chapman appealed.
[33] Dismissing the appeal, Cull J said the general principle is that a collateral challenge to the lawfulness of subordinate legislation may be raised in a criminal prosecution that is based on an alleged breach of that legislation.19 Her Honour agreed with and applied the summary of law set out by Venning J in Grueber.20 She found that, for four reasons, the COVID Order could not be collaterally challenged. The four reasons were:21
(a)The nature of the Order and its decisionmaker. The Minister of Health made the Order. The Minister had no relationship to the prosecuting authority. The Minister would need to be party to any proceeding challenging the lawfulness of the Order. Non-defendants cannot be joined as parties to a criminal proceeding.
(b)A defendant in a criminal proceeding does not have to disclose his or her defence. If a collateral challenge were available, the Minister and other Crown witnesses conceivably might not be made aware of the nature of the challenge until the defence case opened.
(c)The proposed challenge was to the legality of the Order by asserting it was made ultra vires the COVID Act. The District Court lacked
18 Chapman v Police [2023] NZHC 1435.
19 At [9].
20 At [10] and [19].
21 At [21]–[27].
jurisdiction to hear an ultra vires challenge. Even if the criminal proceeding were transferred to the High Court, the defendant would need to issue judicial review proceedings to overcome the hurdles reflected in the first reason.
(d)Section 13 of the COVID Act expressly preserved a judicial review challenge, including one based on breach of the Bill of Rights Act.
[34] Mr Chapman argued that an impediment to bringing judicial review proceedings was the inaccessibility of funding to bring such proceedings. Cull J said this was not a matter that could be addressed by the Court on appeal.22
[35] Mr Hague, counsel for Mr Te Kahika on his conviction appeal, submitted that Chapman could be distinguished. First, he said the Police had been on notice from prior to trial that Mr Te Kahika intended to make a collateral challenge. It is not clear to me that such notice was given. But, even if it was, it does not distinguish Chapman, where Police were on notice through the pre-trial process. Secondly, he said the current appeal was not against a pre-trial ruling as in Chapman, but rather was a substantive appeal in which this Court could exercise its full judicial review jurisdiction. This is not a relevant distinction. In Chapman, Cull J made clear in her third reason that it would not have made any difference if the criminal proceeding had been transferred to the High Court.
[36] Mr Hague also submitted that there was a tikanga aspect to this appeal. He said that refusing to allow a collateral challenge would leave the matter unresolved and not brought to a conclusion. He said this was contrary to the tikanga position, which supports the idea of further probing and examination with a view that this may assist in resolving the matter and getting to a state of ea. I disagree. Even assuming that Mr Hague’s summary of the tikanga position is accurate,23 refusing a collateral challenge will not necessarily leave the matter unresolved. The matter can still be resolved by a judicial review.
22 At [27].
23 Mr Hague referred to [65] of the Statement of Tikanga in Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239.
[37] Mr Batts, counsel for Mr Eastwood, submitted that I should not follow Chapman. He said that the jurisprudence on collateral challenge in New Zealand, as summarised by Venning J in Grueber, was so restrictive it effectively removed any prospect of a collateral challenge to secondary legislation in a criminal proceeding. He submitted that the extra cost involved in a judicial review proceeding was relevant. If a defendant had no realistic ability to bring a challenge by way of judicial review, the restrictions on collateral challenges undermined a fair trial and access to justice.
[38] I am not prepared to depart from the approach in Grueber. The approach is consistent with that taken in a series of High Court decisions that were cited by Venning J. Nor am I prepared to depart from the decision of Cull J in Chapman. The most compelling reason for not allowing a collateral challenge in this case is that the Minister has no relationship to the prosecuting authority and could not be joined to the criminal proceeding. This was the first of Cull J’s reasons and was prominent in Venning J’s reasons for declining to permit a collateral challenge. It was also regarded as a significant factor by MacKenzie J when he held a collateral challenge was not permitted in Moore v Police.24 I do not accept Mr Batts’ submission that this reason reduces the scope for collateral challenge to the point of invisibility. As MacKenzie J observed in Moore:
[31] … In many cases, enforcement proceedings will be taken by the authority responsible for the bylaw or administrative act relied on. The extent of possible challenge may be greater in such a case.
[39] I also do not accept that this result undermines a fair trial or restricts access to justice. These matters cannot, in this context, be viewed solely from a defendant’s perspective. If a collateral challenge is allowed to proceed in the absence of the decision-maker, that may lead to an unfair trial. Further, I am not satisfied that the avenue of judicial review would be any more costly than trying to determine the lawfulness of the COVID Order in the absence of the Minister. The Supreme Court has indicated that the greater accessibility of judicial review (relative to England and Wales) is relevant in this respect.25 Numerous judicial reviews have been brought
24 Moore v Police [2010] NZAR 406 at [24] and [30]–[31].
25 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [206], n 255.
challenging the legality of subordinate legislation made to respond to the COVID-19 pandemic.
[40]Accordingly, I find that this first ground of appeal fails.
Second ground: a gathering for a peaceful protest is impliedly excluded from cl 21
[41] Mr Batts submitted that cl 21 of the COVID Order could in effect be read as prohibiting a person from attending or organising “a gathering in any outdoor place in an alert level 4 area unless that gathering is a peaceful protest”. The key basis upon which he put this interpretation of cl 21 forward was that:
(a) Fundamental rights should not be overridden by general words.
(b)Section 6 of the Bill of Rights Act provides that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.” The Supreme Court in Fitzgerald v R confirmed that this could extend as far as reading in implicit exceptions to the otherwise plain words of a statute.26
[42] Reliance on Fitzgerald is misplaced. That case was concerned with the right, in s 9 of the Bill of Rights Act, not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. The Supreme Court held that this right was so fundamental, or “absolute”, that no limit on it could be justified. This meant that s 5 – which provides that the rights and freedoms in the Bill of Rights Act “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” – had no room to operate.
[43] In this case, the rights that the appellants say are engaged are the rights in ss 14 (freedom of expression), 16 (freedom of peaceful assembly) and 17 (freedom of association). But the appellants acknowledge that these rights are not absolute and
26 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
so can be limited in accordance with s 5. In such instances the interpretative approach in R v Hansen,27 rather than that in Fitzgerald, is appropriate.28
[44]In Hansen, Tipping J summarised the approach as follows:
[92] A summary may be helpful:
Step 1. Ascertain Parliament’s intended meaning.
Step 2. Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom.
Step 3. If apparent inconsistency is found at step 2, ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5.
Step 4. If the inconsistency is a justified limit, the apparent inconsistency at step 2 is legitimised and Parliament’s intended meaning prevails.
Step 5. If Parliament’s intended meaning represents an unjustified limit under s 5, the Court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.
Step 6. If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament’s intended meaning be adopted.
[45] The intended meaning of cl 21 of the COVID Order was plain. It was to prohibit the organisation of, or attendance at, any outdoor gatherings. Plainly, and as the Police accepted, the rights to peaceful assembly (s 16) and association (s 17) were limited by this meaning. I consider the right to freedom of expression (s 14) was also limited. Peaceful assemblies are often the manner in which people express themselves. The COVID Order limited that manner of expression.29
[46] Section 5 requires such limits to be “prescribed by law”. Mr Batts submitted they were not, because the definition of “gathering” was insufficiently precise to amount to a “prescribed” limit.30 I disagree. The definition uses plain words. It uses
27 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
28 Borrowdale v Director-General of Health [2021] NZCA 520, [2022] 2 NZLR 356 at [139]–[141].
29 In Steedman v Police [2023] NZHC 1617 at [40] McQueen J held that a COVID Order that prevented travel across regional boundaries did not engage the right to freedom of expression. I respectfully disagree.
30 Mr Batts relied on, among other authorities, R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at
[180] per McGrath J.
terms such as “reasonably practicable” which are commonly found in legislation. That such terms may occasionally be difficult to apply does not mean that the limits are so imprecise as to not be “prescribed by law”.
[47] The next question is whether they were reasonable limits that could be demonstrably justified in a free and democratic society. I consider they plainly were, essentially for the reasons advanced by Mr Nathan, counsel for the Police. The limits were minimal. People were still free to assemble and associate and to express their opinions while doing so, as long as they kept two metres apart (except where it was not reasonably practicable). The purpose of the limits was to prevent, and limit the risk of, the outbreak or spread of COVID-19,31 “thereby protecting the health and wellbeing of all people in New Zealand and preserving the capacity of the public health system”.32 Given that purpose, the minimal limits were both reasonable and justified.
[48] Further, the limits were less intrusive than the orders that were at issue in Borrowdale v Director-General of Health.33 There, Dr Borrowdale accepted that the limits were justified under s 5, so the Court did not have to determine the point. Nonetheless, the Court of Appeal said that Dr Borrowdale would have faced an “insurmountable hurdle” had he tried to argue that the limits were not justifiable.34 One reason was that the limits were:35
… clearly justified in a free and democratic society in order to protect the health and wellbeing of members of society by preventing and limiting the impact of contagious diseases, such as COVID-19.
[49] It follows that the intended meaning of cl 21 prevails, and that the second ground of appeal fails.
31 COVID-19 Public Health Response (Alert Level Requirements) Order (No 9) 2021, cl 3.
32 Steedman v Police [2023] NZHC 1617 at [68] (dealing with a different COVID Order, but the same purpose is evident in this Order).
33 Borrowdale v Director-General of Health [2021] NZCA 520, [2022] 2 NZLR 356.
34 At [160].
35 At [162].
Third ground: a peaceful protest is excluded from the definition of “gathering”
[50] As an alternative interpretative submission, Mr Batts submitted that the plain words of the COVID Order could be read (without having to resort to a Hansen analysis) as authorising a peaceful protest. He said the definition of “gathering” had to be read as a whole. This meant that para (b), which excluded “people who remain at least 2 metres away from each other so far as is reasonably practicable”, carved out an exception from the gatherings defined in para (a), namely “people who are intermingling in a group”. From this, Mr Batts submitted that gatherings for the purpose of protest:
… are precisely the sort of group intermingling where it is not reasonably practicable to maintain 2 metre distancing. Protests gain their communicative force from the close congregation and unison of participants.
[51] I do not accept this submission. The two parts of the definition do have to be read together, and para (b) did carve out an exception to the gatherings in para (a). But the definition used plain words. They simply needed to be applied to circumstances as they arose: were people intermingling in a group; if so, were they remaining two metres apart so far as was reasonably practicable. By no stretch did those words mean that any peaceful protest was excluded from the definition. This ground of appeal fails.
Fourth ground: intention to fail to comply with Order not proved
[52] Section 26(1) of the COVID Act provides that a person commits an offence if they intentionally fail to comply with a COVID Order. Mr Batts submitted that this meant that the Police needed to prove that a defendant “actually intended that non- compliance with a COVID-19 order be the consequence or outcome of their conduct”. He said this was not to advance a defence of mistake of law. It was simply to give effect to the words of the Act. He said this element was not proven against Mr Eastwood. He accepted that there was evidence that both appellants were aware of the restrictions contained in the COVID Order but said that they consistently maintained that the gathering was nevertheless lawful in light of their rights protected by the Bill of Rights Act.
[53] I accept that Police had to prove that the appellants intended to fail to comply with the COVID Order. Section 26(1) plainly required that. As Mr Batts acknowledged, the evidence supported the Judge’s finding that the appellants had such an intention. It matters not that the appellants may have believed, however sincerely, that their non-compliance with the Order was lawful because of their rights under the Bill of Rights Act. Section 26(1) requires proof of an intention to fail to comply. It does not require proof of an intention to unlawfully fail to comply. I therefore do not accept Mr Batts’ argument.
[54] Mr Hague also advanced an argument on intention. He submitted that s 26(1) required proof that the appellants intended two things: (i) to organise or attend a group of people who were intermingling and (ii) that the people in the group would not stay at least two metres away from each other so far as was reasonably practicable. He submitted that the Police had failed to prove the second element beyond reasonable doubt.
[55] Mr Hague’s argument assumed that para (b) of the definition of “gathering” was an element of the offence. I received limited submissions on that issue. I consider para (b) is not an element of the offence. It operates as a true exception, signalled by the words “but excludes …”. This means the Police only had to disprove the exception if the appellants first raised an evidential foundation for its operation.
[56] As to the organising charge, there was no evidence that the appellants intended that the protest take place with people remaining two metres apart so far as was reasonably practicable. Mr Hague referred to Mr Te Kahika having given active consideration to people management and crowd control and having engaged security personnel to assist with this. But Mr Te Kahika’s evidence referred merely to things such as a traffic management plan, the hours of the protest and keeping people off roads. He said the primary reason for organising security was to make sure that the confines of the protest were kept within a perimeter. There is not even a hint in Mr Te Kahika’s evidence that his planning and organisation was directed at ensuring that people remained two metres apart.
[57] As to the attending charge, there is no evidence that the appellants intended, while they were attending the protest, that people remain two metres apart so far as was reasonably practicable. Mr Te Kahika was engaging in physical embraces with others. The appellants accepted that there were many times when people were less than two metres apart. Mr Hague acknowledged that there was more than enough space to accommodate everyone at the protest and still maintain two-metre distancing. This is clear from a still from the video footage. It was therefore reasonably practicable for people to remain two metres apart.
[58]I therefore reject this ground of appeal.
Conclusion
[59] I reject all the grounds of appeal advanced by the appellants on their conviction appeals. There was no miscarriage of justice. I dismiss the conviction appeals.
Sentence appeals
Principles governing sentence appeals
[60] For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.36 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.37
Grounds of appeals
[61] Mr Borich KC, counsel for Mr Te Kahika on his sentencing appeal, submitted that Judge Winter adopted a starting point for the attending charge that was too high. He said there was no basis to fix the starting point at five months’ imprisonment, being one month less than the maximum. He said the Judge erred in taking into account, as an aggravating factor when sentencing on the attending charge, Mr Te Kahika’s role in organising the protest. Mr Borich submitted the Judge gave insufficient regard
36 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
37 At [36].
to personal mitigating factors. Finally, he submitted that the Judge failed to consider an electronically monitored sentence or other community-based sentence.
[62] Mr Batts adopted Mr Borich’s submissions. He added some brief points specific to Mr Eastwood.
Was the starting point too high?
[63] Judge Winter considered that for Mr Te Kahika s 8(c) and (d) of the Sentencing Act 2002 were engaged, namely that his offending was within the most serious of cases, or near to the most serious of cases, of that type. I accept Mr Borich’s submission that this was an error. First, the relevant offence is of intentionally failing to comply with any COVID Order. In considering whether this was the most serious of such cases, the court has to take into account the range of prohibitions or requirements found in various COVID Orders, and the way in which they might be intentionally breached. It is not a matter of simply considering whether Mr Te Kahika’s offending was among the most serious of possible intentional attendances at outdoor gatherings.
[64] Secondly, this gathering was relatively modest in number. Mr Te Kahika told Police about it in advance, and the evidence reveals respectful exchanges between Mr Te Kahika and the officers with whom he dealt. He took some steps to control the gathering (albeit not to ensure that two-metre distancing was followed). The gathering was for a purpose that is generally protected under the Bill of Rights Act (albeit not where, as here, two-metre distancing was not followed). The gathering was not violent. Mr Te Kahika did not attend for simple pleasure. He attended because of sincerely held beliefs about the existence and effect of COVID-19, about the public health response to the virus, and about freedom of expression and assembly. His beliefs about the virus and the public health response were misguided and to some extent fuelled by delusional conspiracy theories. But that is irrelevant to sentencing. Mr Te Kahika is not to be sentenced for his beliefs.
[65] Mr Borich also said Judge Winter inappropriately took into account, when setting the starting point, the organisational role that Mr Te Kahika had played.
Mr Borich said that while the maximum penalty for attending a gathering was six months’ imprisonment, Parliament had made organising a gathering only an infringement offence, the maximum penalty for which was a fine. Any organisational role should not therefore have been taken into account as an aggravating feature of the “attending” offending.
[66] I consider that Mr Borich’s submission misreads the COVID Order and the COVID Act. The COVID Order prohibits various things and imposes some requirements. For most of these prohibitions and requirements, the Order says that a breach will be an infringement offence. When it creates infringement offences, the Order does not refer to intentional breaches. In some instances, such as cl 21, the Order creates an infringement offence for one prohibition (organising a gathering) but not another (attending a gathering).
[67] Section 26 of the Act deals with offences and infringement offences. Section 26(1) makes it an offence to intentionally fail to comply with a COVID Order. Section 26(3) says a person commits an infringement offence if the person does anything specified as an infringement offence in the Act or a COVID Order. The penalties in s 26(1) are, unsurprisingly, higher than in s 26(3).
[68] I consider that the plain meaning of s 26(1) is that any intentional failure to comply with a COVID Order, including an intentional failure to comply with a prohibition mere breach of which is an infringement offence, is an offence. Here, then, the appellants’ intentional failure to comply with the prohibition in cl 21(2) on organising a gathering was an offence under s 26(1). Their breach of that prohibition was also an infringement offence under s 26(3). In respect of their organisation of the gathering, the appellants were charged under both s 26(1) and (3).
[69] However, Judge Winter proceeded on the basis that the organising charge was fineable only, and accordingly convicted and discharged Mr Te Kahika and Mr Eastwood for that offending.38 The Police did not appeal that sentence. Indeed, in his written submissions Mr Nathan said he agreed that the organising charge was fineable only. This has two consequences. One is that it is not open to me to revisit
38 New Zealand Police v Eastwood [2023] NZDC 6485 at [42] and [47].
(upwards) the sentencing on the organising charge. But, also, sentencing on the attending charge can only occur on the basis of what occurred while the appellants were attending the gathering. It would be an error to treat, as an aggravating factor of that offending, prior organisational aspects on which the appellants have already been sentenced.
[70] That said, I agree with Mr Nathan’s submission that the appellants each played a leadership role while attending the gathering. This is an aggravating factor.
[71] Taking all these matters into account, particularly those I have set out at [64], I consider that this offending was well short of the most serious of its kind. At most, a starting point of a very short period of imprisonment, in the region of 14 days, would have been appropriate for each of Mr Te Kahika and Mr Eastwood. In reaching that view, I have taken account of the numerous cases to which Mr Borich referred me. These were so different from the present, and generally involved so little analysis, that I have found them of little assistance. They do, however, generally support the proposition that the starting points adopted by Judge Winter were well in excess of those that have been adopted in offending that featured roughly similar features to this case.
[72] Against his starting point, Mr Te Kahika is entitled to several allowances. He has no prior convictions. More significantly, he has spent much of his life making significant and varied contributions to his community. These factors warranted credit of at least 20 per cent against the starting point. He is also entitled to credit for being subject to restrictive bail conditions. Judge Winter gave credit equating to 15 days. That seems about right for the length of time that Mr Te Kahika was subject to restrictive conditions.
[73] The credit for time subject to restrictive bail conditions eclipses any remaining term of imprisonment that could possibly have been in prospect. In those circumstances, and given that Mr Te Kahika was also in custody overnight after his arrest, I consider the least restrictive sentence that is appropriate in the circumstances is a conviction and discharge. I add that, even if the adjusted starting point had been
a very short sentence of imprisonment, I consider that Judge Winter erred in not considering home detention or some other community-based sentence.
[74] All that I have said largely applies to Mr Eastwood in equal measure. He may not have made quite the same contribution to his community as Mr Te Kahika has, but as against that his leadership role in the gathering was not quite as significant as Mr Te Kahika’s. A conviction and discharge is the appropriate sentence.
Result
[75]I dismiss the appeals against conviction.
[76] I allow the appeals against sentence on the charges of intentionally attending a gathering. The sentences on those charges are quashed. In substitution, the appellants are each convicted and discharged.
Campbell J
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