Hallett v Police

[2020] NZHC 3472

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-110

[2020] NZHC 3472

BETWEEN

PETER HALLETT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 December 2020
Appearances:	The Appellant in person G Banuelos for Crown
Judgment:	21 December 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 21 December 2020 at 3.30 pm Registrar/Deputy Registrar

Date:

HALLETT v NEW ZEALAND POLICE [2020] NZHC 3472 [21 December 2020]

[1]    The appellant, Peter Hallett, has appealed a decision of Judge M A MacKenzie in the District Court at Taupo. Judge MacKenzie found Mr Hallett guilty of two charges of unlawful hunting and two charges of wilful trespass1 and sentenced him to 300 hours community work.2

[2]    Although the appeal filed by Mr Hallett was filed as an appeal against sentence, following discussion with Mr Hallett it is clear that his primary concern was in fact his conviction disputing that he had been either trespassing or hunting, while maintaining that the sentence was too harsh.   In the circumstances I have treated   Mr Hallett’s appeal as both an appeal against conviction and sentence.

Background

[3]    On 14 March 2019 Mr Hallett was trespassed from both the Lake Taupo forest and the Rotoaira forest for a period of two years. Both forests are involved in commercial forestry operations and operate under a permit system whereby a hunting permit can be obtained to access the forest during proscribed hours.

[4]    Despite being trespassed, on 30 March 2019 Mr Hallett, together with an associate (Mr Kemp), arrived in a vehicle at the Rotoaira forest at 1.00 am. The forest security officer requested their permits be produced and was told they had “a tangata whenua permit”. The Police were called and Mr Hallett failed to produce a permit to the Police Officer. Two firearms were observed in the vehicle and Mr Hallet made a comment that it “was always a good night for filling up the cupboard”.

[5]    Again, despite being trespassed, on 11 April 2019 Mr Hallett, together with an associate, went to the Lake Taupo forest at approximately 7:20 pm. One was driving the vehicle and the other was on the roof. The pair were stopped by a security officer who recognised Mr Hallett. Mr Hallett informed security he was going to continue to hunt anyway.

1      Police v Hallett [2020] NZDC 5645 (“the Conviction decision”).

2      Police v Hallett [2020] NZDC 15900 (“the Sentence decision”).

The Conviction decision

[6]    In finding Mr Hallett guilty on the two hunting charges, Judge MacKenzie began by setting out s 8 of the Wild Animal Control Act 1977, which she noted made it an offence for a person to hunt across any land, without the express authority of the owner or occupier.3 Having then noted the meaning of the different terms in the section, including hunt or kill, Judge MacKenzie turned to s 38 of the Act which set out a presumption with regard to the hunting or killing of wild animals.4 As her Honour noted, this section provides that where a person is found in an area where wild animals are usually present, and that person had with them or under their control any firearm or vehicle, and in the case of the vehicle it was adapted or equipped as to be capable of being used for the hunting or killing of any wild animal, the Court must presume that the person was hunting or killing wild animals in the area.

[7]    At that point Judge MacKenzie considered whether Mr Hallett was on the land without the express authority of the owner or occupier and in doing so noted that the lands involved, Lake Taupo forest and Lake Rotoaira forest, were managed by trusts on behalf of the owners pursuant to Te Ture Whenua Māori Act 1993.5 After reviewing the evidence available which included details of the access policies developed over both forests as well as the fact that Mr Hallett is an owner of both forests. Having considered these matters Judge MacKenzie concluded:6

In summary, I am satisfied that the Lake Taupo Forest Trust and the Lake Rotoaira Forest Trust are the owners of the land. As the definition section of the Act notes, land is defined as land of any tenure. The uncontroverted evidence of the Chairs of the two trusts, Mr Ellis and Mr Smith, is that the trustees are the owners of the land. Although I cannot say definitively that Eriwata applies,7 the statement of general principle at paragraph [8] of Eriwata is helpful and relevant. That is to say, when legal ownership is vested in trustees, it is for them to control the land and they have a power to permit occupation.

Therefore, Mr Hallett’s beneficial interest in the land as an owner cannot override the powers of the trustees of the Lake Taupo and Lake Rotoaira Forest Trusts. This is because I accept the evidence of Mr Ellis and Mr Smith that

3 Conviction decision at [19].

4 At [27].

5 At [35].

6      At [57]-[59].

7      Because the evidence did not reveal whether they are Ahu Whenua trusts. If so, Eriwata would be a complete answer, even though it was decided in a different context and in relation to an injunction under TTWMA.

the trustees have the right to make the decisions about the land as owners, including the right to make decisions about the land. As I have said, their evidence is congruent with general law applicable to the operation of trusts.

For the sake of completeness, I also consider that the combined weight of the evidence also would suggest that NZFM meets the definition of an “occupier” as set out in s 2 and bearing in mind Smith v Nolan. I appreciate this was not the primary focus of the prosecution case, but the evidence shows that NZFM are contracted to manage the commercial forestry operations of the Lake Taupo and Lake Rotoaira Forests by the respective forest trusts, including the management and implementation of the access policy for both forests. As such, I assess NZFM has a right to occupy the forests given the contractual arrangements s to manage the forests on a day to day basis.

(citation included)

[8]    Judge MacKenzie concluded that Mr Hallett did not have express authority from the owners and occupiers to hunt on the land.8

[9]    Judge MacKenzie then turned to consider the two specific incidents for which Mr Hallett had been charged, namely 30 March 2019 and 11 April 2019.

[10]   In relation to the 30 March 2019 incident Judge MacKenzie concluded that the presumption under s 38(1) of the Wild Animal Control Act applied, and in the absence of any evidence called by Mr Hallett concluded that Mr Hallett was guilty of unlawful hunting.9

[11]   In relation to the second incident on 11 April 2019, Judge MacKenzie noted the presumption in s 38 did not apply because there was no evidence before the Court that Mr Hallett had a firearm with him but she was nonetheless satisfied that Mr Hallett was hunting, noting that there was no dispute that Mr Hallett was in the Lake Taupo forest on 11 April 2019 without the express authority of the owner or occupier and, by his own admission to the security officer in the forest, he was hunting.10

[12]   With regard to the trespass charges Judge MacKenzie, based on the evidence provided by the Lake Taupo and Lake Rotoaira forests that it was reasonable to issue trespass notices, was satisfied that Mr Hallett had been warned to stay off the Lake

8 At [67].

9 At [82].

10 At [95].

Taupo and Lake Rotoaira forests when served with a trespass notice on 14 March 2019 and was subsequently found on the properties on 30 March 2019 and 11 April 2019. Given that position Judge MacKenzie concluded with reference to the cases that Mr Hallett wilfully trespassed on both 30 March 2019 and 11 April 2019 on the basis that he was deliberately in those forests on those dates when he knew that access permits issued by the forest trusts were required.11

The Sentence decision

[13]   In sentencing Mr Hallett Judge MacKenzie noted there is no tariff case for unlawful hunting or wilful trespass, and that the sentencing would need to be determined on a first principles basis, looking at the aggravating and mitigating features of the offending.12 Her Honour was of the view that Mr Hallett was the principal offender, and Mr Kemp played a lesser role.13

[14]   For the purposes of denunciation and deterrence the prosecution sought a “stiff community-based sentence”, either a substantial amount of community work or a term of community detention.14 At the hearing Mr Hallett raised the issue of “sovereignty”, however, her Honour simply noted that in a prior minute she had already informed Mr Hallett “the Courts must obey the laws of Parliament” and that “any challenge to the Court’s jurisdiction…must fail”.15 Her Honour then recorded the various other matters raised by Mr Hallett, including, among others that:

(a)he would like to have his consent to gather kai recognised by the Court;

(b)he is a rangatira and a living being;

(c)he cannot accept anything that will force him to bend to New Zealand’s laws;

(d)the common law was not upheld by the Court; and

11 At [130].

12 The Sentencing decision at [13].

13     At [14] – [15].

14     At [16] – [17].

15     At [18](b).

(e)the sentence will put systemic pressure on his whānau and hapu.

[15]   In assessing the appropriate sentence Judge MacKenzie noted this must be determined in light of the fact that the maximum penalty for unlawful hunting had been increased to a $100,000 fine, a factor that indicated Parliament had intended greater deterrence, which as a result, was a “major sentencing  consideration”.16 Judge MacKenzie referred to Parnwell v Police, the first sentencing decision following the increase in penalty, where a starting point of 400 hours community work had been adopted for moderately serious offending.17 Although noting Mr Hallett’s offending was different from that in Parnwell, Judge MacKenzie was of the view that as Mr Hallett went into the forests on two separate occasions, trespassing without a permit and in breach of the access policies, this offending was also moderately serious. Accordingly, her Honour adopted a starting point of 300 hours community work, in line with Parnwell v Police.18

[16]   As Judge MacKenzie identified no aggravating or mitigating factors relevant to Mr Hallett the end sentence was 300 hours community work.

The appeal

[17]   The notice of appeal filed with the Court is of limited assistance specifying the ground of appeal only as: “Regarding the circumstances which the trespass notice was issued the continuation of the sentence is no longer necessary in the interest of the community or appellant”.

[18]   Instead, as noted, at the hearing of the appeal Mr Hallett focused on the conviction decision, suggesting that he had been appropriately authorised by the trustees of the local marae, and/or considered he was lawfully on the forests and/or not hunting.

16 At [22].

17     Parnwell v Police [2015] NZHC 1214.

18 The Sentencing decision at [25].

[19]   In relation to the sentence decision Mr Hallett argued that Judge MacKenzie was wrong to rely on the decision of Parnwell v Police in sentencing Mr Hallett on the basis that the offending in that case was considerably more serious.

Discussion

[20]   Mr Hallett’s appeal is governed by the Criminal Procedure Act 2011 (“CPA”). Section 229(1) of the CPA allows a person to appeal against their conviction to the High Court with s 232 providing that an appeal against conviction must be allowed if in the case of a Judge alone trial the trial Judge erred in his or her assessment of the evidence to such an extent a miscarriage of justice has occurred or a miscarriage of justice has occurred for any other reason. In any other case the appeal has to be dismissed. Likewise, s 250(2) of the CPA provides that a Court must allow an appeal against sentence if satisfied that for any reason, there is an error in the sentence imposed, and a different sentence should be imposed. In any other case, the Court must dismiss his appeal.19

[21]   Turning first to consider Mr Hallett’s appeal against conviction, as I discussed with him at the hearing of the appeal, the fundamental problem is that because he chose not to give evidence or otherwise call evidence to challenge the evidence called by the prosecution with regard to the ownership and administration of the land and or what occurred at the time of each incident, there is no basis to now revisit the conclusions reached by Judge MacKenzie. It is clear that Judge MacKenzie went through the evidence carefully in reaching her conclusions and no issue has been taken with her legal analysis of any of the issues. As a result, there is no basis upon which Mr Hallett’s appeal against conviction can succeed.

[22]   In relation to the sentencing appeal, as Mr Hallett noted, Judge MacKenzie adopted a starting point of 300 hours community work by way of comparison to Parnwell v Police as the only other decision since the increase in penalties for unlawful hunting. In that case the appellants had entered private land with hunting dogs and a substantial amount of hunting equipment. Upon arriving at the property, they concealed their vehicle number plate with tape and cut through the locked gate to

19     Section 250(3).

access the forest. The appellants were in the forest for about five hours but did not kill any animals. The starting point of 400 hours community work was imposed, this being the maximum available.

[23]   Having considered Parnwell against Mr Hallett’s offending I am satisfied that the offending in that case was substantially more serious. Although Mr Hallett’s offending involved two separate incidents of unlawful hunting it did not involve any forced entry or any attempt to conceal his vehicle, still less was there any wilful damage. Moreover, there is no dispute that notwithstanding he had been trespassed from the forest a permit could have easily been obtained by Mr Hallett which would have enabled him to have carried out the hunting lawfully. Given the difference in circumstances I am satisfied that a sentence of 150 hours community work would have been more appropriate. As this is 50 per cent of the sentence imposed, I am satisfied that Mr Hallett’s sentence was in the circumstances, manifestly excessive and as a result the sentence appeal should be allowed.

Decision

[24]The appeal against conviction is dismissed.

[25]   The appeal against sentence is allowed. The sentence of 300 hours community work is quashed and a sentence of 150 hours community work imposed in its place.

Powell J