Kawiti (aka Brown) v The Queen
[2014] NZCA 222
•4 June 2014 at 12.45 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA203/2013 [2014] NZCA 222 |
| BETWEEN | MITAI-PARAONE KAWITI (AKA MITAI ROBIN BROWN) |
| AND | THE QUEEN |
| Hearing: | 28 April 2014 |
Court: | Harrison, Courtney and Clifford JJ |
Counsel: | The Appellant in person |
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 earlier commented on that hui in the following terms:
[61] The position with Mitai Brown is, I think, of considerable interest in that he really acknowledged to the writer of the pre-sentence report that he was the prime mover in this offending. He clearly indicated remorse for what he had done and as I think partly as a consequence of that it was decided that there would be the family hui to which I have already referred. That hui I thought was an excellent indication of the way in which an extended family addresses offending by family members in really what was a traditional way. The family hui was attended by about 35 people, other than the accused.
[62] The notes of that meeting record the outcome and on 12 January 2013 there was a degree of punishment meted out to all four of the accused, but of significance here was the fact that Mitai Brown apologised to his brother Stephen and to the nephew Jason and his son, Maihi, for what his actions had done to them and he sought forgiveness from the whanau. That I think is revealing and of considerable significance.
[63] The law, of course, recognises in terms of the provisions of s 10 Sentencing Act that a Judge may take into account the response of the offender, or the offender’s family, or whanau, to the offending and to bear in mind any measures that were taken by the family to what had occurred, and I intend to do that.
[64] The family hui came to the view that they would accept the remorse indicated by Mitai, but were troubled by what had happened. They directed all four family members, namely the four accused, to do two years of hapu service and directed that they were to report to senior members of the family as to what that service would be.
[65] I was interested to note in Judge Wilson’s sentencing notes with respect to Sandy Pihema that a similar hui had occurred after Sandy Pihema pleaded guilty, and the Judge took that into account as being of considerable significance as an exceptional display of remorse in front of the family.
[66] I accept that it is really quite a difficult thing for people to front up to their own family and to seek forgiveness, and I think it is not only of huge benefit to the individual offender, but also to the family as a collective to see that happen. So that is a factor that I think is important and which I intend to take into account.
Taking into account the remorse that was exhibited at the family hui, the Judge reduced Mr Kawiti’s sentence by three months, to three years and six months’ imprisonment.[3]
Analysis
Sovereignty
[3]At [85].
Mr Kawiti’s principal argument was that the District Court should have recognised and given effect to the decision taken at Te Kooti Marae in recognition of rights of self-determination enjoyed by his people.
There is, in our view, no scope for argument that the determination made by Te Kooti Marae was binding on the sentencing Judge. As this Court has said on a number of occasions,[4] whilst customary processes aimed at making amends are meaningful within the criminal justice system, the laws of New Zealand must be administered in the interests of society as a whole. The universal nature of the criminal jurisdiction of the courts is beyond doubt. Parliament has the sovereign power to legislate for criminal offending, such as that committed by Mr Kawiti.
[4]See for example R v Miru CA65/01, 26 July 2001; Phillips v R [2011] NZCA 225; R v Knowles CA146/98, 12 October 1998; R v Waetford CA406/99, 2 December 1999.
That aspect of Mr Kawiti’s appeal is dismissed accordingly.
Sufficient recognition of customary process
More specifically, Mr Kawiti submitted that the Judge had not given sufficient acknowledgement to Mr Kawiti’s remorse, as evidenced at the whānau hui. The three months’ discount equates to approximately seven per cent of the three year and nine month starting point sentence. Mr Kawiti said that, when compared with the way the Courts in R v Pihema, R v Cherrington and R v McPherson had taken account of similar processes on Te Kooti Marae and imposed sentences of home or community detention for cannabis offending, the failure of the Judge here became apparent.[5] Mr Kawiti argued that, in those cases, the Courts “took into account fully” the decisions of Te Kooti Marae.
[5]R v Pihema DC Kaikohe CRI-2007-027-237, 1 March 2010; R v Cherrington DC Kaikohe CRI‑2009-027-1375, 8 December 2009, R v McPherson HC Whangarei CRI-2008-488-18, 17 October 2008.
None of these authorities support that particular proposition. For instance, in Pihema, which Judge Callander explicitly acknowledged, participation in a hui was but one factor relevant to sentencing. Of greater significance was Mr Pihema’s guilty plea. And the decision in McPherson makes no mention of a hui in the context of sentencing.
We acknowledge, as the Crown did, that the discount given by the Judge by reference to the marae process was a modest one. At the same time, the Judge was in the best position, based on his local experience and from having presided at the trial and having heard all submissions at sentencing, to form an overview as to the significance of those factors. Mr Kawiti has not persuaded us that the Judge erred.
Accordingly this aspect of Mr Kawiti’s appeal is dismissed as well.
Result
This appeal was filed out of time but we grant an extension of time in which to appeal. Mr Kawiti’s appeal against sentence, however, is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent