Heke v Police

[2014] NZHC 2395

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000044 [2014] NZHC 2395

MAURI HEKE Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	(On the papers)
Counsel:	Greg Tomlinson for the Appellant Nicholas Belton for the Respondent
Judgment:	1 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by  on 1 October 2014 at 2:15pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

HEKE v NEW ZEALAND POLICE [2014] NZHC 2395 [1 October 2014]

[1]       In the early hours of the morning of 29 June 2014 Mr Heke was with a group of Black Power associates.   He was the only one in the group wearing full Black Power gang regalia including a patch and bandana.

[2]      Mr Heke was exchanging insults and challenging a rival group to a fight. The Police intervened and warned him to stop and to leave immediately.  He ignored these instructions and was arrested for disorderly behaviour.

[3]      On 16 July 2014 he was sentenced in the Whakatane District Court.

[4]      The Judge, after describing the conduct and the effect it would have had on members of the public, sentenced Mr Heke to 140 hours community work and ordered forfeiture of his gang patch.

[5]      Mr Heke does not appeal the sentence but he does appeal the order forfeiting his gang patch.  He submits that it was not his and the Court was aware of that.

[6]      The respondent accepts that there was no jurisdiction to make the forfeiture order.  The instrument forfeiture powers contained in the Sentencing Act 2002 are not engaged because they require “a qualifying instrument forfeiture offence”, the pre-requisite for which is an offence carrying a maximum penalty of five years or more.  A conviction for disorderly behaviour carries a maximum of three months’ imprisonment.

[7]      This issue was considered by this Court in Hansen v Police.1     There the Crown conceded that the District Court did not have jurisdiction to order the destruction of a gang patch and the order was quashed.

[8]      Although there is a minor factual difference between Hansen and the present case in that in the former involved a destruction order and the present a forfeiture

order, the issue of want of jurisdiction is common to both.

1 Hansen v Police HC Rotorua CRI-2009-463-63, 30 November 2009, Harrison J.

[9]      For that reason the appeal is allowed and the order made in the District Court

in relation to the forfeiture order of the gang patch worn by Mr Heke is set aside.

Moore J

Solicitors:

Mr Tomlinson, Rotorua

Crown Solicitor, Tauranga