Kahu v Police
[2015] NZHC 1925
•12 August 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-419-24 [2015] NZHC 1925
BETWEEN TUNIA PIWI KAHU
Plaintiff
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 August 2015 Counsel:
S M Lawrey for plaintiff
T A Needham for respondentJudgment:
12 August 2015
ORAL JUDGMENT OF KATZ J
Solicitors: Almao Douch, Crown Solicitor, Hamilton
Counsel: S M Lawrey, Barrister, Hamilton
KAHU v NEW ZEALAND POLICE [2015] NZHC 1925 [12 August 2015]
Introduction
[1] Tunia Kahu was sentenced by Judge M L S F Burnett in the District Court at Hamilton to six weeks’ imprisonment for contempt of court. He appeals that sentence on the basis that it is manifestly excessive.
Factual background
[2] Mr Kahu was charged with assault and intentional damage, arising out of a domestic incident involving his partner. He sought a sentencing indication, which was given by Judge A S Menzies on 12 June 2015. The sentencing indication was for seven months imprisonment. After giving the sentencing indication Judge Menzies remanded Mr Kahu in custody to appear by AVL link a week later, on
19 June 2015. The adjournment was to allow time for Mr Kahu to consider the sentencing indication and provide instructions to his counsel as to whether to accept it or not.
[3] On 19 June 2015 Mr Kahu appeared before Judge Burnett, by way of AVL link. He accepted the sentencing indication and entered guilty pleas to both charges. The following exchange then occurred:
THE COURT: Right, accepts sentence indication, so pre-sentence report and restorative justice.
MR LAWREY: Well Ma’am has indicated that he would be, his preference would be to be sentenced today. I was outside with the victim and the matter is in the back of Court here, Ma’am, who approached me. I sent her to the victims advisor and I believe we may have a memorandum from the victims advisor saying that she’s not seeking restorative justice in that instance, so if it is possible I would ask that the matter be sentenced today, Ma’am.
…
THE COURT: It says here that she is interested in restorative justice.
MR LAWREY: Sorry Ma’am I couldn’t really speak to the victim, obviously I advised her to see the victims advisor but she’s looking rather surprised at that information
THE COURT: You’re not interested?
VICTIM: Um, what sorry?
THE COURT: You’re not interested in restorative justice? VICTIM: Yes.
THE COURT: Are you? You are? DEFENDANT: No. Oh –
VICTIM: Yeah nah I’m not. No I’m not sorry.
THE COURT: Well I’m going to remand it for restorative justice anyway.
DEFENDANT: Ah, fuckin gees. THE COURT: And reparation? DEFENDANT: Fuckin hell man. THE COURT: All right and – VICTIM: Sorry Ma’am I don’t –
THE COURT: and I’m going to, would you just turn off the sound please
and Mr Lawrey I’m going to, you need to talk to him about contempt. MR LAWREY: Yes Ma’am. If I could see him in the AVL suite Ma’am. THE COURT: Thank you.
MR LAWREY: I’ll see him now.
…
THE COURT: Well he’s not going to be released until he takes a seat in any event.
VICTIM: I don’t even know what that is (inaudible 12:13:33).
THE COURT: Excuse me Madam I’m going to ask you to leave the
courtroom all right?
VICTIM: Well I’m not going to your stupid meeting. Bring my boyfriend
home (bangs fist on table).
[4] Mr Kahu was then stood down so that Mr Lawrey could speak to him about contempt of court. He was later recalled and offered an apology to the Judge for swearing.
[5] Mr Kahu was then sentenced for contempt of court. In her sentencing notes the Judge noted that the restorative justice template had recorded that the victim was interested in the process of restorative justice.1 She then stated that:
[4] The defendant wanted to be sentenced today to the seven month term of imprisonment and became agitated when there was discussion about whether or not that would happen. In plain sight of myself and everybody else in the courtroom he effectively directed the complainant that she was not to be interested in restorative justice as he wished to be sentenced today, and he regarded that restorative justice would simply stand in his way, despite the fact that she was wanting to be involved in the restorative justice process.
[5] The defendant, in doing this, used the “F words” a number of times and quite clearly intimidated the victim. Not only is he here for offending against her, but her was quite brazen and quite open in his intimidation (even in the courtroom), albeit appearing by AVL. As a consequence of his intimidation, the victim said that she was no longer interested in restorative justice and she just wanted, in effect, for him to get what he wanted and therefore said she would withdraw.
[6] Now I regard that as contemptuous behaviour on two grounds; one is the foul language used which I accept is probably an everyday language for the offender, but is not to be tolerated in Court. And as importantly, if not more importantly, his undisguised intimidation of the victim directing her that her participation in her decision for restorative justice was not to be proceeded with. I stood him down and he spoke to Mr Lawrey.
[7] He has been recalled and he offers his apology for the swearing and says it will not happen again. I accept the apology although I do not for one moment believe that it will not happen again, and I look at his lengthy conviction history which includes a number of convictions for violence among other things, and non-compliance with Court orders. I have got no confidence at all in his apology other than he did actually make it. As importantly, I am of the view that given his brazen intimidation of the victim, that he is in contempt of Court by derailing the Judicial process and accordingly, that the court is entitled to deal with that and I do so accordingly:
[8] The maximum that I could impose would be a term of three months’ imprisonment. Given the brazen and purposeful conduct and the result of this conduct, I am satisfied that half of the maximum three months would be appropriate and this also takes into account his apology.
1 Police v Kahu [2015] NZDC 11421 at [3].
Approach to appeal (CPA)
[6] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow an appeal and if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.2
[7] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.3 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.4
[8] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be determined in terms of the sentence given, rather than the process by which the sentence is reached.5
Discussion
[9] Section 365 of the Criminal Procedure Act 2011 (CPA) relates to contempt of court. It provides as follows:
(1) This section applies if any person—
(a) wilfully insults a judicial officer, or any Registrar, or any officer of the court, or any juror, or any witness, during his or her sitting or attendance in court, or in going to or returning from the court; or
(b) wilfully interrupts the proceedings of a court or otherwise misbehaves in court; or
(c) wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceedings.
(2) If this section applies,—
(a) any constable or officer of the court, with or without the assistance of any other person, may, by order of a judicial officer,
2 Criminal Procedure Act 2011, s 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
4 At [33], [35].
take the person into custody and detain him or her until the rising of the court; and
(b) the judicial officer may, if he or she thinks fit, sentence the person to—
(i) imprisonment for a period not exceeding 3 months; or
(ii) a fine not exceeding $1,000 for each offence.
[10] The Judge did not specifically identify which limb of s 365 Mr Kahu’s behaviour fell under. However, his behaviour likely constituted interrupting or misbehaving in court, under s 365(1)(b).
[11] Her Honour stated that she considered that Mr Kahu’s behaviour was contemptuous on two grounds, one being the foul language used and the other being Mr Kahu’s “undisguised intimidation” of the victim in directing her not to continue with her interest in participating in restorative justice.
[12] There is no dispute that Mr Kahu used foul language in court. This clearly falls within the scope of “misbehaviour” in Court. Whether Mr Kahu intended to intimidate the victim is less clear cut. Mr Kahu denies any such intent. Rather, his understanding was that the victim did not wish to engage in a restorative justice process. He was therefore frustrated that he could not be sentenced immediately, due to the Judge’s decision to refer the matter to a restorative justice conference.
[13] A careful analysis of the transcript indicates, in my view, that there may have been a miscommunication or misunderstanding during the court hearing regarding the victim’s wishes regarding restorative justice. The victim must have indicated an interest in restorative justice at an earlier stage of the proceedings, as this had been recorded on the template that was before the Judge. Immediately prior to the hearing before Judge Burnett, however, the victim approached Mr Kahu’s counsel, Mr Lawrey, and indicated that she no longer wished to pursue restorative justice. Quite properly, he referred her to the victim advisor. Mr Lawrey understood that a memorandum was possibly being prepared by the victim advisor, confirming that the victim did not wish to pursue restorative justice.
[14] The Judge sought to clarify the issue with the victim by asking her “You’re not interested in restorative justice”? The victim replied “Yes”. The Judge appears to have interpreted that “yes” response as the victim saying that she was interested in restorative justice. It is also possible (and perhaps likely) that what the victim was intending to convey was “Yes, you’re correct, I’m not interested in restorative justice.” Such a response would be consistent with her having approached Mr Lawrey only a brief time before, to convey that she was not interested in restorative justice. It would also be consistent with her comment at the end of the transcript when she was asked to leave the court. She said:
Well I’m not going to a stupid meeting. Bring my boyfriend home
(bangs fist on table).
[15] Mr Lawrey was acting for Mr Kahu at that time and, coincidentally, Ms Needham was also present in Court, on another matter. Ms Needham’s impression was that the victim was somewhat confused. Mr Lawrey advised me (also from the bar) that the victim apparently has a slight hearing difficulty.
[16] In my view expressing the question “You’re not interested in restorative justice?” in the negative could well have given rise to some confusion. “Yes” would, however, appear to be the most appropriate answer if the victim was not interested in restorative justice. The Judge, however, appears to have interpreted the victim’s response as an indication that she did want to attend restorative justice, which necessarily coloured the Judge’s views of Mr Kahu’s subsequent intervention.
[17] Mr Kahu understood from Mr Lawrey that the victim was no longer interested in pursuing restorative justice. His calling out “No” in response to the Judge’s attempt to clarify the victim’s wishes may not, therefore, have been an attempt to intimidate the victim into changing her mind. Rather, he may have simply been attempting to clarify his understanding of the victim’s position (or possibly get the victim to do that) in circumstances where he believed her “yes” answer had been misconstrued.
[18] I also note that Mr Kahu’s intervention in the court process was not prolonged or sustained. He only made three comments in total. Firstly he said “No. Oh –” when the court was attempting to clarify with the victim whether she wished to attend restorative justice. He then said “Ah, fuckin gees” in response to the Judge stating that she was going to remand it for restorative justice anyway. Finally he said “Fuckin hell man” when the Judge asked “And reparation”?
[19] Obviously I do not have the advantage that the Judge did, of seeing the actual events unfold and being able to assess Mr Kahu’s demeanour and body language. Based on the transcript, however, there appears to be a real possibility of a misunderstanding or miscommunication.
[20] This case is somewhat unusual in that Mr Kahu’s conduct is open to at least two different interpretations. He was sentenced not simply for swearing in court, but also on the basis that he was attempting to intimidate the victim, which the Judge appropriately viewed as a serious matter. Indeed, such behaviour could well have founded a separate charge of perversion of the course of justice, pursuant to s 117 of the Crimes Act 1961. In that event, however, Mr Kahu would have had an opportunity to give or call evidence (including from the victim) to clarify any misunderstanding that may have arisen. His conduct, however, was dealt with under a “fast track” contempt of court process. The consequence of that is the usual court processes were not engaged. Rather, Mr Kahu was simply brought back into court after being stood down, apologised, and was then immediately sentenced.
[21] In the unusual circumstances of this case it is my view that Mr Kahu should be given the benefit of the doubt as to what his intent was when he interjected. I will accordingly approach this appeal on the basis that Mr Kahu’s relevant act of contempt was his angry outburst and swearing during the hearing. I put to one side the possibility that he may have been attempting to intimidate the victim into changing her mind regarding any engagement in the restorative justice process.
[22] Counsel referred to a number of previous contempt of court decisions that provide possible benchmarks against which Mr Kahu’s behaviour can be assessed. They include:
(a) Mihaka v Police: 28 days imprisonment for a “flagrant and provocative challenge to the authority of the Court”, upheld on appeal.6
(b) Wanahi v R: 28 days imprisonment reduced to 7 days on appeal, for a
17 year old appellant who failed to pay attention to the proceedings, put his finger in the air to his friends sitting in court and used the “f” word. 7
(c) Mair v Wanganui District Court: 21 days imprisonment for flagrantly disregarding a direction by the Judge, in a way that was calculated to challenge to the authority of the court, upheld on appeal, although Heron J said that “probably only a few days of sentence actually served would have been enough to make it plain to Mr Mair that such
obstruction was regarded very seriously”.8
(d)Greer v Police: 21 days imprisonment upheld on appeal for saying to Judge, after being refused bail, “I’m applying to the High Court on that you dickhead,” and then refusing to apologise.9
(e) Masiutama v District Court (Papakura): six weeks imprisonment reduced to four days on appeal for flashing a card to his friends from the public gallery with the words ”[expletive] justice” on it.10
Tompkins J indicated that the sentence may well have been slightly longer but for the fact that a longer sentence would require the appellant to go back into custody for just a few days (having been
released on bail pending appeal).
6 Mihaka v Police [2010] NZAR 504 (HC).
7 Wanahi v R HC Hamilton CRI-2007-419-061, 3 May 2007.
8 Mair v Wanganui District Court [1996] 1 NZLR 556 (HC) at 565.
9 Greer v Police HC Palmerton North AP53/97, 17 October 1997.
10 Masiutama v District Court (Papakura) HC Auckland AP 203/86, 3 October 1986.
(f) Wong Tong v Police: seven days imprisonment for, from the public gallery, calling out “Sieg Heil”, a well-known Mongrel Mob slogan, with his fist clenched and raised in front of a number of onlookers.11
(g) Pandey v Police: two months imprisonment, reduced to six weeks on appeal, for a witness who refused to take the oath or give evidence in court proceedings.12
[23] It goes without saying that all behaviour that is in contempt of court is serious. Such behaviour has the potential to undermine the administration of justice. Judicial officers should not be expected to tolerate the use of offensive language or abusive behaviour in court. The fact that Mr Kahu may have been upset and frustrated with the court process was no excuse. That said, other than Pandey, none of the cases I have referred to, some of which involved quite serious and sustained contempts of court, resulted in a sentence of more than 28 days imprisonment.
[24] The most comparable cases for present purposes appear to be Wanahi v R, Masiutama v District Court (Papakura) and Wong Tong v Police. Like this case, all of those cases involved the use of inappropriate language in the court room. Using those cases as a bench mark, a sentence of seven days imprisonment would, in my view, appropriately reflect the level of Mr Kahu’s culpability, taking into account his apology. It necessarily follows that a sentence of six weeks imprisonment is manifestly excessive.
Result
[25] The appeal is allowed. A sentence of seven days imprisonment is substituted for the sentence of six weeks imprisonment imposed in the District Court.
Katz J
11 Wong Tong v Police [2012] NZHC 3036, [2013] NZAR 21.
12 Pandey v Police HC New Plymouth CRI-2010-433-26, 15 December 2010.
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