Kawiti (aka Brown) v The Queen - [2014] NZCA 222

IN THE COURT OF APPEAL OF NEW ZEALAND

CA203/2013
[2014] NZCA 222

BETWEEN	MITAI-PARAONE KAWITI (AKA MITAI ROBIN BROWN) Appellant
AND	THE QUEEN Respondent

Hearing:	28 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	The Appellant in person C A Harold for Respondent
Judgment:	4 June 2014 at 12.45 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

The appellant, Mitai-Paraone Kawiti (also known as Mitai Robin Brown), was convicted following a trial before Judge Callander and a jury in the Whāngarei District Court on one charge each of cultivation of cannabis, possession of cannabis for supply and manufacturing cannabis oil. Mr Kawiti was sentenced on 15 January 2013 by Judge Callander to three years and six months’ imprisonment.[1]
[1]R v Tua DC Whangarei CRI-2010-088-1371, 15 January 2013.
Mr Kawiti now appeals against his sentence. He says that the Court should recognise his inherent right to be dealt with under customary law, in reliance on arguments of Māori sovereignty. He says the Court should fully recognise the determination of Te Kooti Marae, during a whānau hui in which he participated. He also says that the Judge’s sentencing decision, when compared to other sentences for like offending, failed to give sufficient recognition to the remorse and prospects of rehabilitation demonstrated by his participation in that marae process.
Mr Kawiti’s appeal was filed two months out of time. In the circumstances, and given that he represents himself and the Crown does not oppose, we grant an extension of time for filing the appeal.

Facts

In April 2010 the police conducted a search at the home of Mr Kawiti and his extended family at Tikipunga. There police located a large quantity of cannabis. The estimated yield of the cannabis head material found was 5.2 kilograms with a value of between $46,000 and $52,000 if sold by the ounce. Approximately 3.5 kilograms of cannabis leaf was also located at the address, capable of producing between 157 and 228 grams of cannabis oil. There was evidence that cannabis oil had indeed been manufactured.
Mr Kawiti faced trial along with three other members of his extended family. His defence at trial was that someone else was responsible for the offending.

The challenged sentencing decision

By the time of his sentencing, Mr Kawiti had accepted primary responsibility for the offending.
The Judge identified, on the basis of this Court’s guideline judgment in R v Terewi, a starting point sentence of three years and nine months’ imprisonment.[2] Given the amount of cannabis material and Mr Kawiti’s acknowledged intention, recorded in his pre-sentence report, of selling the cannabis to pay for rates owed on his family land, there can be (and is) no challenge to that.
[2]R v Terewi [1999] 3 NZLR 62 (CA).
The Judge then considered the mitigating circumstance of the remorse that had been exhibited at the family hui. The Judge had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZCA 222
Decision Date: 4 June 2014 at 12.45 pm

CaseChat Overview and Summary

In Kawiti (aka Brown) v The Queen, Mitai-Paraone Kawiti, also known as Mitai Robin Brown, appealed against his sentence imposed by the Whangarei District Court. Kawiti was convicted on charges of cultivating cannabis, possessing it for supply, and manufacturing cannabis oil. The District Court sentenced Kawiti to three years and six months in prison. Kawiti argued that the court should have recognised his right to be dealt with under customary law, citing arguments of Māori sovereignty and the decision of Te Kooti Marae. He also argued that the court did not adequately recognise his remorse and prospects of rehabilitation, evidenced by his participation in the marae process. The Crown did not oppose the late filing of the appeal, and the Court of Appeal granted an extension of time for the appeal to be heard. The Court of Appeal dismissed Kawiti's appeal against his sentence. The Court found that the decision of Te Kooti Marae was not binding on the sentencing judge and that the laws of New Zealand must be administered in the interests of society as a whole. The Court also found that the sentencing judge was in the best position to form an overview of the significance of the factors relevant to sentencing, and that Kawiti had not persuaded the Court that the judge had erred in his sentencing decision.

The Court of Appeal dismissed Kawiti's appeal against his sentence. The Court granted an extension of time for the appeal to be filed but found that Kawiti's arguments regarding the recognition of customary law and the significance of the marae process were not persuasive. The Court found that the sentencing judge was in the best position to assess the relevance of the factors in the sentencing decision and that the judge had not erred in his decision. The Court upheld the sentence imposed by the District Court.

Orders