Miru v Police

[2015] NZHC 1249

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-00005 [2015] NZHC 1249

BETWEEN

JOSEPH MIRU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 June 2015
Appearances:	Appellant in person C A Anderson for Respondent
Judgment:	4 June 2015

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Whangarei

MIRU v POLICE [2015] NZHC 1249 [4 June 2015]

[1]      On  9  February  2015  Joseph  Miru  was  sentenced  in  the  District  Court, Kaikohe, to imprisonment for one month, 14 days, on a review of a sentence of 120 hours community work imposed on 5 June 2013 for threatening behaviour.  He also appeared for a breach of that sentence, which had been established at a defended hearing.  He had completed, he tells me, 11 hours of his community work.

[2]      Mr Miru appealed his sentence on grounds outlined in his notice of appeal in the first instance.  He then identified two grounds of appeal.  First, he challenged the validity of the laws of New Zealand under which he had been convicted and sentenced.  Second, he put in issue the basis for his conviction for the breach, though he had not appealed his conviction.   Finally, he contended that his sentence was manifestly excessive.

[3]      On 18 May 2015, when Mr Muru’s appeal was set down for hearing, he did not appear due apparently to illness within his family.  Ellis J directed that he file and serve any submissions by 25 May 2015.   He did so by email, as the respondent accepts, on 21 May 2015.  He has also filed today materials supporting his appeal.

[4]      Mr Miru first contends that the laws of New Zealand are invalid when set against the laws of England, as they were when New Zealand was a colony.  In his notice of appeal he put their validity specifically in issue, as a result of his inability to obtain from England a copy of the New Zealand Constitution Act 1852 (Imp).  In effect, he contended, that Act must be a fiction and could not be a valid source for New Zealand’s laws.

[5]      That  argument   has   recently  been   rejected  in   the  Court   of  Appeal.1

Furthermore, as I have told Mr Miru, his wider basis for challenge cannot avail him either.  The decisions of the Court of Appeal, including that most recent decision, are constant to the theme that our Courts are bound to accept the validity of Acts of Parliament.

[6]      Mr Miru’s challenge to the sentence imposed on him, which he has already served, is that it was manifestly excessive.  He contends that the sentencing Judge,

Judge G L Davis, had a choice as to the breach: to imprison him within a three month maximum or to fine him within a $1,000 maximum.  Under the Sentencing Act 2002 a fine is the least restrictive option and imprisonment the most restrictive. The Judge, he says, was obliged to take the least restrictive option.  Mr Miru also relied on s 25(g) of the New Zealand Bill of Rights Act, but it is not in point.

[7]      Judge Davis, in his decision under appeal, dated 9 February 2015, was faced, as he said, not just with the breach, but with the application for review.  After Mr Miru completed 11 hours community work he presented the Probation Service with an invoice for $22,000, charging $2,000 for each of those hours.  When he was not paid he refused to serve the balance of his sentence.

[8]      The Judge concluded that Mr Miru would not complete any sentence of community work imposed on him.  Nor would he engage in any sentence short of imprisonment.  A number of warrants had been issued for his arrest, as recently as May - June 2014.  The Judge saw no alternative but to impose the ultimate sanction available to him.

[9]      Mr Miru contends today that, had the Judge considered as he was obliged to, a fine within a $1,000 maximum for the breach, he would have paid it.  That does not, however, answer the issue posed by the application for review, which extended beyond the breach.  Furthermore, Mr Miru has told me that, had a fine been imposed, he would have challenged its validity.  While, therefore, the Judge might not have considered a fine, plainly it was not a viable possibility.

[10]     Mr Miru has completed his sentence and he has not identified on this appeal any error of principle or any reason why a different sentence should have been imposed.2   The sentence was, I consider, within the Judge’s discretion.  I dismiss Mr

Miru’s appeal.

P.J. Keane J