Hepi v The King
[2024] NZHC 3098
•24 October 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-000078
[2024] NZHC 3098
BETWEEN TE WIKAITARA HEPI (aka HARE TE TITAHA)
AppellantAND
THE KING
Respondent
Hearing: 21 October 2024 (by VMR) Appearances:
Appellant in Person
C Megala for Respondent
Judgment:
24 October 2024
JUDGMENT OF VENNING J
[Sentence appeal]
This judgment was delivered by me on 24 October 2024 at 12.00 pm.
Registrar/Deputy Registrar
Date……………
Solicitors: Marsden Woods Inskip Smith, Whangarei Copy to: Appellant
HEPI v R [2024] NZHC 3098 [24 October 2024]
Introduction
[1] On 16 July 2024, in the District Court at Kaikohe, Te Wikaitara Hepi pleaded guilty to one charge of unlawful possession of an air rifle and one charge of presenting the air rifle. Judge G R Tomlinson convicted and discharged him on the charge of possession of the air rifle (and ordered its destruction), and on the charge of presenting the air rifle, convicted Mr Hepi and ordered him to undertake 40 hours’ community work and six months’ supervision.1
[2] Mr Hepi appeals the conviction. He wants to revisit his decision to plead guilty to the charges and to defend them.
Background
[3] The summary of facts Mr Hepi pleaded guilty to records that he lives in a cabin on a property at Ōheaewai, Northland. The paddocks surrounding his property are leased by the victim’s employer, who grazes stock on them. At about 5.30 pm on 2 July 2024, the victim was moving stock on behalf of his employer through the paddocks where Mr Hepi lives. At the time the victim was accompanied by his partner and four year old son. There was a confrontation between Mr Hepi and the victim. The argument escalated between Mr Hepi and the victim. Mr Hepi went into his cabin and approximately 30 seconds later returned holding a black air gun. The victim and his family believed the air gun was a firearm. The summary records Mr Hepi was clearly seen aiming the air gun at the victim and his family and as a result the victim’s partner called the Police.
[4] Members of the Armed Offenders Squad attended and arrested Mr Hepi. During the search of his property the Police located the black air gun inside his cabin. Mr Hepi admitted possession of the air gun. The summary records he admitted pointing it in the direction of the victim and his family.
1 New Zealand Police v Hepi [2024] NZDC 18951.
The appeal
[5] Mr Hepi represents himself. In support of his appeal, he has filed a memorandum and an affidavit of complaint which I understand he intends to file (or has filed) with the Māori Land Court at Whangārei to support his application for an injunction against the victim’s employer in relation to the leased property. Mr Hepi has also provided a copy of the Ahu Whenua Trust Order made in the Māori Land Court. In his memorandum Mr Hepi seeks to make the point that on his investigation, the purported lease to the victim’s employer has no standing and therefore the victim had no legal right to be on his land in the first place. That is not a matter that requires determination for the purposes of this appeal.
[6] Mr Hepi then takes issue with the actions of the Police. Apparently, Mr Hepi’s dog was shot and killed during his arrest. Again, those matters are not germane to this appeal. Next, he says that when he was before Judge Tomlinson on 16 July 2024, he was under duress. He says that he understood that if he did not take the offer he would have missed out on the birth of his mokopuna as the Judge could not guarantee bail would be granted. Further, any condition of bail would likely have had him unable to return to his home. For these reasons he says he has been subject to a miscarriage of justice.
[7] In the affidavit of complaint, which was sworn before a registrar of the District Court on 3 October 2024, Mr Hepi says the victim’s partner had said that “my partner will fuck you up” during the initial verbal exchanges. Mr Hepi says he rang the employer and after the conversation with the employer ended he felt he was being stood over. The employer seemed to think the matter was funny. As Mr Hepi has injured knees, he says he went into self-defence mode so he walked to his bach to retrieve his air gun as a safety precaution. Mr Hepi said he approached them with the air gun in his hands but did not threaten to use it or shoot them with it. He just wanted them to leave and to deter the victim from attacking him.
[8] During Mr Hepi’s appearance in support of the appeal he stood up and demonstrated to the Court how he was holding the air gun. He confirmed he had not held it at shoulder height aiming it towards them but rather was holding it with two
hands in front of his body with his elbows bent at around the mid part of his body walking towards them.
[9] In addition, at previous appearances before the Court on this appeal, Mr Hepi has advised the Court that he accepted a deal from Judge Tomlinson because things happened very quickly, and he did not have proper time to consider his options. He considers he was acting in self-defence being in lawful occupation of his land and that the victims were trespassing.
Applicable law
[10] As Mr Hepi pleaded guilty and was sentenced, the remedy is an appeal against conviction.2
[11] Section 229 of the Criminal Procedure Act 2011 (CPA) provides for a right of appeal against conviction. Section 232 provides:
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
……
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3)The first appeal court must dismiss a first appeal under this subpart in any other case.
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
2 R v Kihi CA395/03, 19 April 2004 at [14].
(b)has resulted in an unfair trial or a trial that was a nullity.
(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[12] Section 232(4) and (5) confirm that on an appeal such as this one brought by Mr Hepi, the Court must consider whether there has been a miscarriage of justice by the entry of the guilty pleas in his case.
[13] In R v Le Page, the Court of Appeal confirmed the correct approach to an appeal against conviction following the entry of a guilty plea:3
[16] Despite the understanding which Mr Le Page and his counsel (not Mr Neutze) had at the time the pleas were entered and at the time of sentencing, it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.
[14] The Court went on to identify three broad categories where a miscarriage of justice will be indicated:
(a)where the appellant did not appreciate the nature of, or did not intend to plead guilty to a particular charge;4
(b)where the appellant could not in law have been convicted of the offence charged;5 or
(c)where the plea was induced by a ruling which embodied a wrong decision on a question of law.6
3 R v Le Page [2005] 2 NZLR 845 (CA).
4 At [17].
5 At [18].
6 At [19].
[15] In R v Merrilees, the Court of Appeal added a further category where previous counsel erred in their advice as to the non-availability of certain defences, inducing the client to plead guilty under a mistaken belief the defence did not exist.7
Analysis
[16] The matters Mr Hepi refers to could only relate to the charge of presenting a firearm. I deal with the issues that Mr Hepi raises or that could be raised on what he has outlined to the Court.
Duress or pressure to plead guilty
[17] When Mr Hepi appeared on 16 July he was represented by Mr Dudley on behalf of Mr Watkins. The matter was called at 2.21 pm. The Court was advised bail would be opposed because of Mr Hepi’s past history. Apparently he was subject to s 12 of the Bail Act 2000. The Court was also addressed by Mr Hepi’s brother on Mr Hepi’s behalf. The Judge then noted that, if Mr Hepi wanted to go “hands up” and plead guilty then he would be sentenced to community work and supervision, to bring the matter to an end and get him out of the jail and the court system so that he would not have to worry about bail conditions. The Judge then expressly said:
But I do not like people just rolling over just for convenience, they have got to buy into it, they have got to accept they did wrong.
So, the Judge stood the matter down to enable Mr Dudley to talk to Mr Hepi about whether he wanted to get it sorted that day. Again, the Judge expressly said:
If you can – because a lot of pressure you standing there and a judge offers a deal, right, you go oh I will take it, and then after you go oh no, that was a bad idea. So we stand it down, let people have a think about it. Come to it a bit clinically and dispassionately, make up their mind, we can deal with it. I have got some concerns about bail, I do not have so much concerns about resolving today. So we will stand it down. Mr Dudley, you have a chat to him, if it can resolve, ka te pai, if it cannot, I will hear you on bail, okay?
The Court then adjourned shortly after 2.25 pm. The Court resumed at 3.04 pm so approximately just under 40 minutes later, and Mr Dudley advised the Court that Mr Hepi wished to enter guilty pleas to the two charges through counsel.
7 R v Merrilees [2009] NZCA 59 at [34].
[18] While Mr Hepi may have been stressed given he had been arrested by the Armed Offenders Squad, held in custody overnight, and there may have been an issue as to bail, nevertheless he was supported by his whanau and was represented by a lawyer. He had time to consider the consequences of pleading not guilty as opposed to pleading guilty with his lawyer (and presumably his brother as well who was at court supporting him). The incident was pretty straightforward. Mr Hepi must have understood his situation. He had over half an hour to discuss matters with Mr Dudley. I also note that Mr Hepi does not pursue or suggest any issue of trial counsel incompetence. Mr Hepi clearly understood what he was facing and made an informed decision to plead guilty.
Available defence?
[19] The primary issue Mr Hepi relied on in this Court was that he had a valid defence to the charges. That was on the basis he was acting in self-defence and so had a lawful and sufficient purpose for presenting the firearm. As noted, he also suggested he did not aim the firearm at the victim.
[20] Self-defence in these circumstances would require Mr Hepi to prove, on the balance of probabilities, that he genuinely anticipated threatened danger that was reasonably imminent and, importantly, which must have been of such a nature it could not have been reasonably met by more “pacific” means. Both the subjective and objective elements of self-defence must be assessed in light of the circumstances as Mr Hepi saw them.8
[21] On the summary of facts which Mr Hepi accepted, it would have been difficult to establish that defence. Further, even if Mr Hepi had an arguable defence of self- defence, that is not sufficient to make out a miscarriage in this case. In Hussein v R, the Court of Appeal addressed the issue of an arguable defence:9
[22] Even if the offender has an arguable defence, if he or she freely pleads guilty after proper advice about the charges and the quality of the defence then it will be difficult to establish a miscarriage based on a lack of understanding of the possible defences unless the appellant can show the advice was deficient.
8 Gray v Police [2018] NZHC 3030 at [17] citing R v Sarich CA407/04, 16 May 2005 at [37].
9 Hussein v R [2011] NZCA 58 (footnote omitted). See also R v Stretch [1982] 1 NZLR 225 (CA).
[22] Mr Hepi was clearly alive to the possible defence at the time. I infer that the issue, which Mr Hepi now seeks to raise, was raised with Mr Dudley and considered. Mr Hepi does not suggest counsel incompetence or that he was not properly advised.
[23] It appears clear from the record that once he had received the Judge’s indication of the sentence Mr Hepi pleaded guilty in order to have the matter dealt with on the day. He had already spent two weeks in custody.
[24] As noted, Mr Hepi also took issue with the suggestion that he had aimed the firearm at the victims. The offence is presenting a firearm. This Court in Police v Ashby has said it is not necessary to directly aim a firearm at a person for the purposes of “presenting”.10 Brandishing or displaying a firearm in a threatening way is sufficient.11 In that case, Mr Ashby confronted the complainant with an unloaded shotgun, and even though it was not pointed at the complainant, it was being used in an intimidatory way. The Court accepted his conduct fell within a concept of presenting. The way Mr Hepi described to the Court him holding the firearm with both hands across the front of his body walking towards the victims, would satisfy the requirement for presenting a firearm in the circumstances. The fact it was not directly aimed at the victims is a relevant matter for sentence, but not to the establishment of the charge itself.
[25] As the Court has said in these cases, it will only be in exceptional circumstances that an appeal against conviction will be entertained after a guilty plea. No such exceptional circumstances arise in this case.
Result
[26] Even though Mr Hepi may feel he had a defence to the charge, because he was aware of the defence at the time and made a conscious decision to plead guilty due to the circumstances surrounding his custodial situation, there has been no miscarriage in the entry of convictions in his case.
10 Police v Ashby (1993) 12 CRNZ 114 (HC).
11 At 9.
[27]The appeal is dismissed.
Venning J
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