Matiaha v Police

[2021] NZHC 375

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-425-31

[2021] NZHC 375

BETWEEN

DONALD TEWHAIWHAIA MATIAHA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 March 2021
Appearances:	T J McCullum for Appellant R W Donnelly for Respondent
Judgment:	4 March 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 4 March 2021 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

MATIAHA v NEW ZEALAND POLICE [2021] NZHC 375 [4 March 2021]

[1]    Following a judge-alone trial before Judge Brandts-Giesen, the appellant, Donald Matiaha, was convicted on one charge of intimidation.1 He was ordered to pay $300 in emotional harm reparation. Mr Matiaha appeals against his conviction and sentence.

[2]    Mr Matiaha filed his notice of appeal one day out of time. No prejudice arises to the respondent and, in the absence of opposition, leave to appeal out of time is granted.

Background

[3]    On 22 March 2020 Mr Matiaha parked his vehicle outside the Work and Income office (WINZ) in Invercargill. Ms Jeannine Mander was employed as a security guard at WINZ. Because Mr Matiaha had previously caused issues at the office, Ms Mander was tasked with serving him with a trespass notice.

[4]    Ms Mander approached Mr Matiaha’s car and served the notice on him through the window of his vehicle. She explained the notice and its general effect. Mr Matiaha responded with abuse. He said to Ms Mander, “You are a fucking bitch” and asked if she knew what she was doing. Mr Matiaha then said, “I will shut the fucking place down and be back to finish you all off”, or words to that effect.

[5]    Ms Mander immediately went back to the WINZ office and followed the protocol that placed the building into lockdown. Mr Matiaha left before the police arrived. He was subsequently located at his house. He denied all knowledge of the incident.

District Court decision

[6]    After outlining the circumstances that gave rise to the charge, the Judge canvassed the threat that had been made to Ms Mander. He noted that threats had been made against other Ministry offices in other parts of the country, including Ashburton some years ago.

1      Summary Offences Act 1981, s 21(1)(a).

[7]    The Judge found Ms Mander to be a truthful witness and, based on her evidence, drew what he described as “the inevitable inference” that the words said were meant to frighten Ms Mander and were a threat to her and other staff members in the building. The Judge concluded the words “finish them off” were a threat that the victims could be killed or injured if he carried out the threat. Further, that the threat was a real one. The Judge found the charge proved beyond reasonable doubt .

The appeal

[8]    Ms McCullum, who appeared on behalf of Mr Matiaha, submitted that a miscarriage of justice had occurred because the elements of the offence had not been proved. Counsel contended there was  no  evidence  that  Mr  Matiaha  threatened Ms Mander. It was also submitted that it had not been proved that Mr Matiaha intended to frighten the security officer. Ms McCullum further argued there was no evidence that Ms Mander was frightened by anything Mr Matiaha had said, and that the witness’s description of her reaction to Mr Matiaha’s words, that she was “uncomfortable”, was insufficient.

Discussion

[9]Section 21(1)(a) of the Summary Offences Act 1981 provides:

21       Intimidation

(1)Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

(a)threatens to injure that other person or any member of his or her family, or to damage any of that person's property

[10]   Mr Matiaha was charged that: “With intent to frighten [Jeannine] Ellen Mander [he] threatened to injure that person”. The elements of the offence required to be proved were:

(a)That Mr Matiaha made a threat to injure Ms Mander; and

(b)that the threat was made by Mr Matiaha with an intention to frighten her.

[11]   Whether the words and/or actions used constituted a threat to injure is to be assessed objectively.2 It is not necessary to prove that the person who uttered the threat had an intention to carry it out.3 However, the person making the threat must intend for it to be taken seriously.4

[12]The relevant parts of Ms Mander’s evidence were as follows:

Q.       How did he respond to [the trespass notice]?

…

A.… he called me “a fucking bitch” and asked me if I felt good about   what I was doing and I said, “no, I didn’t”

…

Q.       So, after that conversation, what did you do?

A.He then replied to me “I will fucking well shut this office down and I will be back to finish you all off”…

…

Q.       What did you take that to mean?

A. A threat to the office and the staff inside and we had clients also in the office so their safety and wellbeing is important.

…

Q.       How did it make you feel personally?

A.Uncomfortable and sort of felt that I had to look after my guards who all had been in and out of the outside as we do, so the office, as I say, was locked down until the police arrived and confirmed that the office was no longer under threat.

…

Q.       So, what did you take the threat to be?

A.That he was going to come in and cause problems. Well, I can’t say   that I thought he was going to be violent because I don’t 100% know

2      Taueki v Police [2012] NZHC 3598 at [17]. 3 R v Adams [1999] 3 NZLR 144 (CA) at [7]. 4 At [7].

whether he would have been or not, but I took it that staff had to be kept safe.

…

Q.       When you say “felt unsafe”, what do you mean by that?

A. Whether he would cause harm physically, verbally because he has verbally abused staff in there which they have felt quite unsafe and even clients in the office have felt that as well on previous occasions.

[13]   Ms McCullum then cross-examined Ms Mander, relevantly the evidence records:

Q.       He didn’t [threaten] you personally, did he?

A. I take it when he said “he was going to come and finish us all”, that included myself and the staff inside.

…

Q.… you confirmed that you did say before in your evidence that you   can’t be 100% sure that he was going to be violent in any way?

A. That’s correct, because I did not – we did not give him the opportunity. We brought everybody inside and kept them safe.

Q.…you’ve also said that you thought the threat was to the office and   the staff inside?

A.       That’s correct.

Q.Well the sergeant asked you before what you took the threat to mean, you never said anything about you took it as a threat to yourself?

A.       Well, I’m a staff member inside and I class myself as a staff member.

[14]   I consider the words “I will fucking well shut this office down and I will be back to finish you all off”, made outside the WINZ offices by Mr Matiaha constituted, at the least, a clear threat to injure, if not to kill. The threat was directed at Ms Mander. That is apparent from the words used: “… I will be back to finish you all off”. When Ms Mander was asked what she took that to mean, she said, “A threat to the office and the staff inside and we had clients also in the office …”. Ms Mander rejected the assertion made in cross-examination that she had not included herself in having been the subject of the threat. In response to such a suggestion, Ms Mander replied, “Well, I’m a staff member inside and I class myself as a staff member”. I consider the threat

was directed at Ms Mander and the District Court Judge was entitled to make that determination.

[15]   The second element that must be proven is an intention by the utterer of the threat to frighten the person to whom it is directed. Whether that person felt frightened or was frightened by the threat is not an element of the charge, although the person’s reaction may be relevant to an assessment of what was intended by the person making the threat.5 A person’s intention is to be inferred from all the facts.6 Mr Matiaha did not give evidence to contest what I consider is a reasonable inference to be taken from Mr Matiaha threatening that he would “be back to finish you all off”, that he intended to frighten Ms Mander. I cannot, in the circumstances, apprehend any other objective in saying such a thing.

[16]   The evidence was there had been previous friction between Mr Matiaha and WINZ staff, and the threat was made after he had been issued with a trespass notice preventing him from entering the office. Ms Mander’s raising of the alarm and the resulting lockdown of the office reflects the seriousness with which the threat was taken, which in turn is indicative of the serious way in which the threat was delivered. The nature of the threat and the context in which it was uttered provided an ample evidential basis upon which a fact-finder could conclude that it was made with the intention of frightening the person to whom it was directed. No error arises from the Judge’s conclusion in that regard.

[17]   Ms McCullum sought to emphasise that Ms Mander only described the threat as making her fell uncomfortable, but, as already observed, the effect of the threat on the person to whom it is made is not an element of the charge. It is the intent of the person making the threat that is the focus. Ms Mander was made to feel uncomfortable and her subsequent actions demonstrate that the threat affected her and that she was sufficiently moved by what Mr Matiaha said to take the matter seriously.

5      Farquhar v Police HC Dunedin CRI-2011-412-1, 8 April 2011; Te Wake v Police [2016] NZHC 1629.

6      Te Wake v Police, above n 5, at [14].

[18]   A further ground of appeal advanced by Mr Matiaha was that the Judge took into account extraneous matters in reaching his conclusion that the charge was proved. The Judge observed:

[5] In light of other attacks that have been made on Ministry’s offices in other parts of the country, most notoriously in Ashburton some years ago, it is understandable that the victim would be frightened by what was said by    Mr Matiaha. She went immediately back into the building and followed the protocol that the building be locked down and the police called….

[19]   While the Judge’s observation related to a matter of common knowledge, I accept it was not something that arose in the evidence and Ms Mander made no mention of these past incidents when giving her evidence. However, as already observed, whether a victim has felt frightened as a result of the threat is not an element of the offence. It follows that the Judge’s comment is of no material consequence to proof of the charge.

Decision

[20]   I do not consider any error or irregularity has occurred that created any real risk of affecting the outcome of the trial.7 I am satisfied that the elements of the charge were made out on the available evidence.

Sentence appeal

[21]   Mr Matiaha also appealed against his sentence, although no written or oral submissions were advanced in support it was noted by Ms McCullum that Mr Matiaha had spent some time in custody on remand. Mr Matiaha was ordered to pay reparation, which is one of the least restrictive outcomes under the Sentencing Act 2002.8 He has previous convictions for behaving threateningly, disorderly behaviour and criminal harassment. I agree with the observation made by counsel for the Police that Mr Matiaha received a relatively lenient sentence. The order to make an emotional harm payment of $300, to be paid at $20 per week, was neither manifestly excessive nor inappropriate.

7      Criminal Procedure Act, s 232(4).

8      Sentencing Act 2002, s 10A(2).

Result

[22]The appeals against both conviction and sentence are dismissed.

Solicitors:

Southern Law, Invercargill Crown Solicitor, Invercargill