Hohepa v Police

[2012] NZHC 180

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-169 [2012] NZHC 180

BETWEEN  TAMAHIKI HOHEPA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 February 2012

Counsel:         D G Young for Appellant

A R Longdill for Respondent

Judgment:      17 February 2012

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL

David G Young (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

HOHEPA V POLICE HC AK CRI-2011-404-169 [17 February 2012]

[1]      Mr Hohepa has filed a notice of appeal against conviction and sentence in respect of a sentence of Judge DM Wilson QC handed down in the District Court at Auckland on 21 September 2009.  The notice of appeal was received in this Court on

31 May 2011 and despite numerous attempts it has proved impossible to advance to a final hearing.

[2]      In June 2011 Mr Hohepa filed an affidavit in which he deposed that he had entered  a not  guilty plea to the charge in question, namely converting a motor vehicle.   He says, in essence, that the sentencing was in error because he had not pleaded guilty and neither had there been a trial.   In submissions filed with the

affidavit, Ms Kemp of the Public Defence Service submitted:[1]

It appears that this matter was accidentally remanded to a sentencing date and  sentenced,  together  with  other  matters,  without  having  proceeded through the defended hearing process.

[1] Submissions in support of appeal against conviction and sentence, dated 27 June 2011, at para 4.

[3]      On 26 August 2011 the respondent filed submissions in opposition to the application.  With the submissions was an affidavit of Mr Hohepa’s counsel at t he time.  The affidavit of Daniel Anthony Rawlings sworn on 21 August 2011 makes it clear that, although the charge in question had been remanded to a sentencing day, he had advised Mr Hohepa of the merit in having the charge dealt with along with the others.  He deposes that Mr Hohepa accepted his advice and instructed him that he would plead guilty to the charge of unlawfully converting a motor vehicle.   He further deposes that Mr Hohepa appeared for his sentencing and entered a guilty plea to that charge.

[4]      Since then, despite further callovers, the matter has not been able to  be progressed.  Following the callover on 1 December 2011 I directed the Court staff to send a copy of my minute to Mr Hohepa’s last known address and I asked the prosecution  to  use  its  best  endeavours  to  draw  the  minute  to  the  attention  of Mr Hohepa.  I am advised that the minute was served personally on Mr Hohepa and

he is today represented by Mr Young.

[5]      Mr Young has filed a memorandum dated 13 February 2012 in which he tells me that he had a very brief meeting with Mr Hohepa shortly before Christmas. Mr Young says he has not had any contact with Mr Hohepa since then and all efforts to contact him by telephone or writing have been unsuccessful.

[6]      Mr  Young  has  asked  for  a  further  adjournment.    He  has  told  me  that Mr Hohepa has failed to appear at another proceeding in the District Court and that he has a history of mental problems.

[7]      Despite Mr Young’s request, my view is that in all of the circumstances it is

time  to  put  this  matter to  rest.   Accordingly,  I dismiss  the  appeal  for  want  of prosecution.

Brewer J