Iti v R
[2012] NZCA 307
•16 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA306/2012 [2012] NZCA 307 |
| BETWEEN TAME WAIRERE ITI |
| AND THE QUEEN |
| CA363/2012 |
| AND BETWEEN TE RANGIKAIWHIRIA KEMARA |
| AND THE QUEEN |
| Hearing: 3 July 2012 |
| Court: Wild, Heath and Keane JJ |
| Counsel: E R Fairbrother for Applicant Iti |
| Judgment: 16 July 2012 at 11 am |
JUDGMENT OF THE COURT
Both applications for bail pending appeal are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
By applications filed on 20 and 22 June respectively, Messrs Iti and Kemara apply under s 70 of the Bail Act 2000 for bail pending the hearing of their appeals.
Each man is appealing against both his conviction and his sentence. The appeals are to be heard on 22 August.
On 24 May Rodney Hansen J sentenced each applicant to two and a half years’ imprisonment.[1] The background to the sentencing is captured in these opening paragraphs of the Judge’s sentencing remarks:
[1] Mr Iti, Mr Kemara, Mr Signer and Ms Bailey, you appear for sentence having been found guilty by a jury of charges of unlawful possession of firearms and a restricted weapon. Each of you were found to be in unlawful possession of firearms at military-style camps in the Urewera Ranges in January, September and October 2007 and, with the exception of Mr Signer, at a camp in June of that year. You were also found to be in possession of a restricted weapon, namely Molotov cocktails, at the September camp and to be in possession of firearms when the police operation terminated on 15 October 2007.
[2] You were found not guilty on four charges relating to camps in November 2006 and April and August 2007. The jury was unable to reach a verdict on a charge of participating in an organised criminal group.[2] On the application of the Crown, a stay of proceedings has since been entered on that charge.
[1] R v Iti HC Auckland CRI-2008-004-20749, 24 May 2012.
[2] A charge under s 98A of the Crimes Act 1961.
The Judge had convicted them after a jury had found them guilty of charges of unlawful possession of firearms and a restricted weapon, namely Molotov cocktails.
Bail pending appeal is governed by s 14 of the Bail Act 2000. That places the onus on the applicant “to show cause why bail should be granted”: s 14(2). Section 14(1) provides that:
… the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.
Of the permissory considerations set out in s 14(3) of the Act, the applicants rely only on (a), the apparent strength of the grounds of appeal.
The applicants rightly accept that s 14 confronts them with a high threshold. That is because, once an offender has been convicted and sentenced, the Court will grant bail pending appeal only in exceptional circumstances. Section 14 encapsulates well settled principles stated by this Court in Ellis v R:[3]
… Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice. As to the first, the Court in Moananui[4] accepted that the applicant had an arguable case on the points intended to be advanced in the appeal but concluded that none of them pointed overwhelmingly to the ultimate success of the appeal. As to the second, what has to be weighed along with the length of the sentence is any previous delays in dealing with the appeal and the prospective delay in bringing it to finality.
[3] Ellis v R [1998] 3 NZLR 555 (CA) at 560.
[4] Moananui v R (1984) 1 CRNZ 231 (HC).
The appeals against conviction of both applicants will involve challenges to aspects of the Judge’s summing up to the jury. But, as the summing up is not yet available, Mr Fairbrother, for Mr Iti, relied solely on the merits of Mr Iti’s appeal against sentence. We think Ms Fairbrother took the same stance; she certainly accepted the difficulty in basing Mr Kemara’s application on alleged errors in a summing up not yet available to this Court.
Mr Fairbrother accepted that in sentencing Mr Iti on the firearms charges, the Judge was entitled to consider the purpose for which Mr Iti possessed the firearms. But he contended the Judge was not entitled to have regard to evidence admitted on the s 98A charge on which the jury were unable to reach a verdict.
Mr Fairbrother submitted that the alleged unlawful purpose of waging urban warfare went “off the table” with the staying of the s 98A charge. The purpose for which Mr Iti had the firearms had to be gleaned from the evidence admissible on the firearms charges. Even accepting that the co-conspirators rule[5] applied to those charges, the evidence established nothing beyond the goal of military style training on private land. Thus, all that the admissible evidence established was what Mr Fairbrother termed “regulatory” offences rather than criminal offences.
[5] In s 12A of the Evidence Act 2006.
For Mr Kemara, Ms Fairbrother adopted the grounds advanced by Mr Fairbrother for Mr Iti. She emphasised that Mr Kemara had no previous criminal convictions, and had adhered to his bail conditions, without issue over a period of some five years up to the trial.
In sentencing the applicants the Judge dealt first with their applications for a discharge without conviction under s 347(3) of the Crimes Act 1961 and s 106 of the Sentencing Act 2002. In the course of doing that the Judge recorded that the Crown alleged that the organised criminal group had as their objective the commission of further serious offences of violence. He quoted Mr Burns opening for the Crown:[6]
The training exercises the Crown says is to equip them to do such things as kidnap people, to commit acts of sabotage and commit basically armed combat. For want of a better word, to commit guerrilla warfare.
[6] At [11].
Later, when dealing with the aggravating factors relevant to sentence, the Judge said this:
[43] … The question of whether the four of you participated in a criminal group, which had as its objective the commission of serious crimes of violence, is quite distinct from the issue of why you acquired the firearms and deployed them at the camps. Your intention in that latter sense is highly relevant to an assessment of your culpability and there is sufficient evidence on that issue to satisfy me to the standard of beyond reasonable doubt.
[44] The firearms were used to train participants in military-style exercises. The intention was to train participants in the use of weaponry with the potential to operate for paramilitary purposes. Although there were elements of Dad’s Army in the group and some of the firearms drills attracted critical comment, the intent was serious. …
The Judge then summarised the evidence establishing that serious intent and continued:
[47] As I view the evidence, in effect, a private militia was being established. Whatever the justification, that is a frightening prospect in our society, undermining of our democratic institutions and anathema to our way of life.
Turning to the mitigating factors, the Judge said:
[51] … The first of these features is that the ultimate goal to which possession of the weapons was directed was not a criminal one. That is not intended to convey any view on the charge of participating in a criminal group. It is simply to acknowledge what is common ground, namely, that your activities were directed to the objective, in a general sense, of redressing Tuhoe grievances and, more specifically, to achieving mana motuhake or a form of self government for Tuhoe. …
A little later in his sentencing remarks the Judge elaborated:
[53] While the fact that your offending occurred in pursuit of altruistic motives cannot excuse what has happened, it can be appropriately recognised on sentence. It is also highly relevant, in my view, that there was no immediate intention or imminent prospect of violent offending. The Crown case was that the strategy was to realise Tuhoe aspirations by peaceful means if possible. If negotiations did not achieve those goals, violent means would be adopted. Negotiation was Plan A, force was Plan B. …
Those passages provide no support for the applicants’ argument that the sentences they appeal were based on evidence which was admissible only on the s 98A charge. On the contrary, they suggest that the Judge drew a clear distinction between the (by then) stayed s 98A charge, and the firearms offences for which he was sentencing the applicants.
In any event, the applicants’ arguments will need to be assessed in light of a ruling the Judge gave before counsel made their final addresses. That is contained in a Minute issued by the Judge on 12 March 2012.[7]. The Judge ruled, in reliance on R v Messenger,[8] that the documentary evidence in question was admissible both on the question of whether the firearms found in the possession of the accused were for a lawful proper or sufficient purpose, and on the question whether the objectives of the criminal group were shared by the accused. This was a point emphasised by Mr Burns for the Crown in opposing bail.
[7]R v Iti HC Auckland CRI-2008-004-20749, 12 March 2012 (Minute (No 13): As to evidential issues).
[8] R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779.
We may have gone into too much detail in attempting to grasp, and assess the strength of, the applicants’ arguments. We say that because an extensive analysis of the merits of an appeal is neither necessary nor appropriate upon an application for bail such as this: R v de Bruin.[9]
[9] R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R.
However, for the reasons we have given, our firm view is that these applications, necessarily restricted to the merits of the appeals against sentence, do not meet the high threshold set by s 14 for granting bail pending appeal.
Also relevant to our decision on these two applications is that the time to the hearing of the appeals on 22 August is quite short. On the Crown’s calculation, by the date of hearing, the applicants will have been in custody for approximately three months. The Crown submitted this is unexceptional in the context of a two and a half year sentence of imprisonment. That submission was not really contested by counsel for the applicants.
Accordingly, the two applications are dismissed.
Solicitors:
Fairbrother Family Law, Napier for Applicant Iti
Ord Legal, Wellington for Applicant Kemara
Crown Law Office, Wellington for Respondent
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