Oneroa-Hill v District Court at Tauranga
[2017] NZHC 2471
•16 October 2017
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TAURANGA MOANA ROHE
CRI-2017-070-000015 [2017] NZHC 2471
BETWEEN HIKITIA TEATATAWHIA AHURANGI
ONEROA-HILL Appellant
AND
DISTRICT COURT AT TAURANGA Respondent
Hearing: 13 July 2017 Appearances:
Appellant in Person
Sam Davison for the RespondentJudgment:
16 October 2017
JUDGMENT OF MOORE J
This judgment was delivered by me on 16 October 2017 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
ONEROA-HILL v DISTRICT COURT AT TAURANGA [2017] NZHC 2471 [16 October 2017]
Introduction
[1] The appellant, Hikitia Teatatawhia Ahurangi Oneroa-Hill, accumulated substantial traffic fines but had no means to pay them.
[2] At a hearing before a District Court Judge she was re-sentenced and ordered to undertake 150 hours of community work. On completion of that work the fines would be remitted.
[3] She claims that by the time she was re-sentenced she had already completed part of a community work sentence of 160 hours imposed for the same purpose by Nga Tapuwai O Muriwai Paa Kooti (“Paa Kooti”). She says that since then she has completed more than the balance of the 160 hours.
[4] Her complaint on this appeal is that the District Court failed to recognise or properly take into account the hours of community work she completed.
Background
[5] Between May 2015 and November 2016 Ms Oneroa-Hill accumulated $3,045 in fines for various motor vehicle offences. Her offending was not serious. It involved matters such as exceeding the speed limit, failing to display a warrant of fitness and not wearing a seat belt.
[6] Ms Oneroa-Hill did not pay her fines because she could not afford to. As a result, she was directed to appear before the Deputy Registrar of the Tauranga District Court on 1 February 2017 to explain why her fines had not been paid and for the Deputy Registrar to examine her as to her means. It is not clear whether Ms Oneroa-Hill attended Court on that date. However, it is apparent that at some point the Deputy Registrar undertook a means assessment. He considered that Ms Oneroa-Hill, as a stay-at-home mother in receipt of a benefit, did not have the ability to pay her outstanding fines. Indeed, her weekly budget revealed a modest deficit after all outgoings, including regular payments towards fines, were taken into account.
[7] Her case was referred to a District Court Judge with a recommendation that a sentence other than an order to repay the fines be considered.
The District Court hearing
[8] On 16 March 2017 Ms Oneroa-Hill appeared before Judge S J Coyle. Judge Coyle explained to Ms Oneroa-Hill that because of her difficult financial circumstances he could substitute a sentence of community work which, when completed, would result in the remission of the outstanding fines. He asked her if she was able to undertake community work to which she responded “yes”.
[9] However, Ms Oneroa-Hill advised the Judge that she was already undertaking community work. She produced a bundle of documents which she said proved this.
[10] Judge Coyle carefully and courteously explained to Ms Oneroa-Hill that the Court did not and could not recognise the jurisdiction of Paa Kooti. He correctly observed that decisions of the Higher Courts make it clear that only Courts recognised by the New Zealand Parliament are authorised to pass sentence; self appointed Courts have no such power. He concluded by noting he was satisfied Ms Oneroa-Hill did not have the means to pay her fines and that attempting to pay them was causing her great financial hardship. For that reason he re-sentenced her to
150 hours’ community work in substitution of the fines which he ordered would be remitted once the community work had been completed.
[11] The material which Ms Oneroa-Hill placed before Judge Coyle included a number of documents which are familiar to the Courts in the context of Māori sovereignty claims and challenges to the Court’s jurisdiction. These feature colourful seals, images of the flag of the Confederated Tribes of Aotearoa and statements claiming that the New Zealand Parliament has no lawful constitution because the New Zealand Constitution Act 1856 did “not receive Royal assent from Queen Elizabeth the Second, is therefore null and void of all lawful process”. Other documents filed included assertions such as “The Principles of the Treaty of Waitangi 1840 grant whānau the right to self-determination in accordance to the Pre-Amble and whānau/hapū Tikanga”.
[12] However, also included amongst this material were documents which on their face indicated that Ms Oneroa-Hill had engaged in a marae-based process of “whānau/hapū mahi” (“mahi”) or community work, purportedly in lieu of paying her outstanding fines.
[13] These documents suggested on their face that on eight occasions, between
27 February 2017 and 14 March 2017, Ms Oneroa-Hill had completed 49½ hours of mahi. Other than the assertion that the mahi was undertaken on nominated dates and times it was not apparent what the nature of the work was or where it was completed.
High Court hearing and further submissions
[14] Before me Ms Oneroa-Hill commenced her oral submissions by stating, unequivocally, that her appeal was not based on a Māori sovereignty claim. In doing so she referred to the written submissions filed by Mr Davison for the Crown which, unsurprisingly given the contents of the notice of appeal, focused on an anticipated jurisdictional argument founded on a sovereignty claim.
[15] However, as the argument before me developed, it emerged that Ms Oneroa-Hill’s primary concern was the extent to which any mahi already completed by her should have been taken into account for the purposes of setting the appropriate sentence.
[16] Ms Oneroa-Hill produced a bundle of documents which appeared to be the same as those presented to the District Court and which suggested that 49½ hours of mahi was undertaken by her.
[17] In documents filed after the hearing it would appear Ms Oneroa-Hill has since completed 169 hours of mahi, nine more than that purportedly ordered by Paa Kooti and 19 more than that ordered by Judge Coyle. Furthermore, the additional documents filed indicate Ms Oneroa-Hill, on 11 separate occasions, undertook a miscellany of tasks at the marae including food preparation and general kitchen duties, cleaning, tidying, general maintenance and gardening, including preparing, propagating and caring for seedlings for the marae’s garden. In other words, on their face, these documents indicate that Ms Oneroa-Hill has undertaken substantial mahi
in recognition of the remission of her outstanding fines. For sentencing purposes, this could be viewed as a pre-emptive effort indicative of remorse, an acceptance of fault and an offer to make amends.
[18] At the hearing Ms Oneroa-Hill impressed me as sincere. She was assisted by a McKenzie friend and supported by a large number of friends and whānau in the public gallery. Throughout the hearing she was courteous and respectful.
[19] I raised with Mr Davison the question of whether the sentencing Court should have taken into account such voluntary work as matters of mitigation. Given the contents of the notice of appeal and its focus on sovereignty issues, Mr Davison was not in a position to address me on this question.
[20] Following the hearing I issued a Minute seeking further submissions on the question of whether the District Court should have taken Ms Oneroa-Hill’s efforts into account at her re-sentencing. I pointed out that this principle is reflected in several provisions of the Sentencing Act 2002 (“the Act”).
[21] For example, s 8(i) of the Act provides pathways by which Māori customary considerations may be taken into account in the sentencing process.
[22] There is also s 10 of the Act which requires the sentencing Court to take into account offers of amends and matters of that kind. Section 10 provides:
“10 Court must take into account offer, agreement, response, or measure to make amends
(1) In sentencing or otherwise dealing with an offender the court must take into account—
(a) any offer of amends, whether financial or by means of the performance of any work or service, made by or on behalf of the offender to the victim;
(b) any agreement between the offender and the victim as to how the offender may remedy the wrong, loss, or damage caused by the offender or ensure that the offending will not continue or recur;
(c) the response of the offender or the offender’s family,
whanau, or family group to the offending;
(d) any measures taken or proposed to be taken by the offender or the family, whanau, or family group of the offender to—
(i) make compensation to any victim of the offending or family, whanau, or family group of the victim; or
(ii) apologise to any victim of the offending or family, whanau, or family group of the victim; or
(iii) otherwise make good the harm that has occurred;
(e) any remedial action taken or proposed to be taken by the offender in relation to the circumstances of the offending.
(2) In deciding whether and to what extent any matter referred to in subsection (1) should be taken into account, the court must take into account—
(a) whether or not it was genuine and capable of fulfilment; and
(b) whether or not it has been accepted by the victim as expiating or mitigating the wrong.
(3) If a court determines that, despite an offer, agreement, response, measure, or action referred to in subsection (1), it is appropriate to impose a sentence, it must take that offer, agreement, response, measure, or action into account when determining the appropriate sentence for the offender.
(4) Without limiting any other powers of a court to adjourn, in any case contemplated by this section a court may adjourn the proceedings until—
(a) compensation has been paid; or
(b) the performance of any work or service has been completed; or
(c) any agreement between the victim and the offender has been fulfilled; or
(d) any measure proposed under subsection (1)(d) has been completed; or
(e) any remedial action referred to in subsection (1)(e)
has been completed.”
[23] I noted that although the primary focus in s 10(1) is on victims, s 10(1)(e)
might well have application in the present case.
[24] I also observed s 27 of the Act may be relevant. This provides:
“27 Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender
(1) If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—
(a) the personal, family, whanau, community, and cultural background of the offender;
(b) the way in which that background may have related to the commission of the offence;
(c) any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence;
(d) how support from the family, whanau, or community may be available to help prevent further offending by the offender;
(e) how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.
(2) The court must hear a person or persons called by the offender under this section on any of the matters specified in subsection (1) unless the court is satisfied that there is some special reason that makes this unnecessary or inappropriate.
(3) If the court declines to hear a person called by the offender under this section, the court must give reasons for doing so.
(4) Without limiting any other powers of a court to adjourn, the court may adjourn the proceedings to enable arrangements to be made to hear a person or persons under this section.
(5) If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1).”
[25] Although s 27(1) requires the offender to make a request before the section is engaged (and in the present case Ms Oneroa-Hill has made no such request), s 27(5)
permits a Court, notwithstanding, to suggest to an offender, that it may be of assistance to hear a person or persons called by the offender on any of the matters specified in subsection (1).
[26] I thus invited further submissions on the question of the proper course this Court should adopt in the event it was to decide that greater scrutiny of the documents and the circumstances of Ms Oneroa-Hill’s claims of community work was desirable. I also noted that pursuant to s 251(2) of the Criminal Procedure Act
2011 (“the CPA”) the first appeal Court has various powers including the power to remit the matter back to the District Court for re-sentencing. I invited submissions on the question of disposition.
[27] Furthermore, recognising the issues raised in my Minute might have practical implications for first instance Courts at sentence, I invited counsel to make submissions on whether wider representation or submissions from an amicus curiae should be called for.1
[28] Specifically, I invited further submissions on the following topics:
(a) Whether, if proved, the community work and the circumstances in which it was undertaken are matters which the Court may take into account on sentence?
(b) If so, on what statutory or other basis?
(c) What are the relevant matters in mitigation?
(d)How should they be proved (sworn evidence, oral testimony etc) and by whom?
(e) Should s 27(5) be invoked and if so who should be heard and in respect of what?
1 Ms Oneroa-Hill made no submissions on this issue. Mr Davison submitted that no other parties should be invited to make submissions because the appeal engaged straightforward sentencing principles.
(f) Should the matter be remitted back to the District Court for re- sentencing? If so, what other orders (if any) should be made?
(g) Should the appeal hearing be re-opened to receive oral submissions
(and/or evidence) or can the matter be dealt with on the papers?
(h)Are there any further orders, directions or submissions the parties consider necessary to be made in the circumstances?
[29] Both Ms Oneroa-Hill and Mr Davison accepted my invitation to file further submissions and I record my gratitude to both for their focused and helpful assistance.
Grounds of appeal
[30] Ms Oneroa-Hill’s notice of appeal against sentence is dated 23 March 2017.
The grounds of the appeal are set out below:
“Failed to recognise Paa Kooti/Parts of the paper work I filed into the Tauranga District Court (restorative justice). Format. Proclaimed Sovereign Authority, lawfully constituted in accordance with He Whakaputanga O Te Rangatirangatana O Niu Tirini of 1835, with full acknowledgment of Te Tiriti O Waitangi 1840 whilst exercising Hapu/Kawa/Tikanga within the territories of Niu Tirini Aka Aotearoa/NZ.”
[31] Although in retrospect it may be said the notice does, in fact, disclose Ms Oneroa-Hill’s primary ground of appeal, its prominence is all but lost amongst the extensive references to claims of sovereignty.
Approach on appeal
[32] Appeals against sentence to this Court are governed by s 250 of the CPA
which requires the Court to allow the appeal if:
(a) for any reason there is an error in the sentence imposed on conviction;
and
(b) a different sentence should be imposed.
[33] In any other case the Court must dismiss the appeal.2
[34] Thus there is a dual cumulative requirement that for the appeal to succeed there must not only be an error but a different sentence should be imposed.
[35] An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning or as a result of additional material submitted on the appeal which vitiates the first instance sentencing decision.3
Analysis
[36] The issue before this Court is simply stated. It is whether the District Court should have taken into account Ms Oneroa-Hill’s claims she completed other community work in lieu of fines.
[37] Plainly the Paa Kooti’s purported order of 160 hours of mahi has no formal legitimacy as an enforceable Court-sanctioned order. Ms Oneroa-Hill conceded as much when she eschewed any challenge to the District Court’s decision on the grounds of Māori sovereignty. And, of course, such an argument could never have succeeded as this and other Courts have repeatedly emphasised. Paa Kooti has no official standing and Judge Coyle was right to disregard its “orders”. The question at issue is whether some allowance should have been given for Ms Oneroa-Hill’s claim she had completed some hours of mahi in the belief this was in mitigation of her failure to pay her outstanding fines. The Courts have been increasingly prepared to take cognisance of family, whānau, community and the cultural backgrounds of offenders particularly in the context of sentencing jurisprudence. Furthermore, as is more fully discussed below, there are various provisions in the Act which require the Court to take into account cultural factors in the sentencing process.
[38] In R v Mason, Heath J accepted on the evidence before him that prior to the
Declaration of Independence 1835 and Treaty of Waitangi 1840, Māori operated a customary system that could deal with “alleged breaches of societal norms of a type
2 Criminal Procedure Act 2011, s 250(3).
3 R v Shipton [2007] 2 NZLR 218 (CA).
we would not characterise as ‘serious crime’”.4 He held this system had been extinguished by the Crimes Act 1961, but custom could still play a meaningful role in criminal proceedings, including the sentencing process, provided it could be accommodated within the existing statutory system.5
[39] Mason simply reflects the Court’s increasing willingness to take into account
Māori customary law and tikanga, not only in the context of criminal and sentencing jurisprudence but also in other areas of legal endeavour.6
[40] In addition to these general principles, the Act specifically requires the Court to take into account both the offender’s personal, whānau and cultural backgrounds in imposing a sentence with a partly or wholly rehabilitative purpose. These principles are reflected in s 8(i) which I have discussed above. I set out the provision for convenience:
“8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
…
(i) must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose;”
[41] Without deciding the point it may be that in the context of the present case this provision is be engaged. Section 8(i) requires the Court to take into account these wider factors if it is considering the imposition of a sentence having a rehabilitative purpose. It is, however, questionable whether a sentence of community work imposed in lieu of fines is a sentence with a rehabilitative purpose.
[42] Ms Oneroa-Hill, in her helpful supplementary written submissions, suggests that it may be of assistance to the Court to hear Georgina Turanga to speak on
Ms Oneroa-Hill’s whānau background, the processes she has followed in order to
4 R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at [28].
5 At [37]-[38].
6 R v Mason above n 4; see too Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 1486, [2016]
3 NZLR 378.
resolve the offence, including whānau support available to her for rehabilitative purposes.
[43] Additionally, Ms Oneroa-Hill submits that s 10(1)(e) is engaged in the present case. As set out above, s 10(1)(e) relevantly provides as follows:
“10 Court must take into account offer, agreement, response, or measure to make amends
(1) In sentencing or otherwise dealing with an offender the court must take into account—
…
(e) any remedial action taken or proposed to be taken by the offender in relation to the circumstances of the offending.”
[44] I am satisfied s 10(1)(e) may be engaged in the present case although the reference to “remedial”, in the sense of curative may be inapt in the absence of an identifiable victim. In the present case the victim is society. If the motive to undertake the mahi is on account of an acceptance of wrongdoing to society, then it goes to remorse and a willingness to accept fault.
[45] In any event, even if the provisions discussed above have no application in the present circumstances, s 9(4)(a) permits the Court to take into account any other aggravating or mitigating factor the Court thinks fit. Mr Davison accepts that any mahi undertaken by Ms Oneroa-Hill may be taken into account by virtue of this provision. He submits that, if proved, the hours of community work undertaken by Ms Oneroa-Hill may be considered by the Court when setting a sentence of community work in lieu of fines. However, he submits that before this factor may be taken into account the sentencing Court should have some proof that the work has, in fact, been undertaken. I agree that is the correct approach.
[46] There is merit in requiring sworn evidence to be filed. This course will not only permit confirmation of the actual hours of community work completed, but also provide the Court with evidence to explain the context and circumstances which led Ms Oneroa-Hill to undertake the mahi. Such evidence would also provide details of the work actually undertaken, when it was completed and under whose supervision.
Evidence of this kind would meet the legislative purpose which sits behind s 27 and would also provide potentially helpful information in terms of the Court’s sentencing responsibilities as reflected in ss 8, 9 and 10 of the Act.
[47] For the reasons given I have determined that Ms Oneroa-Hill’s appeal should be allowed. As Mr Davison properly accepted, irrespective of which particular provision or combination of provisions, the Act required the sentencing Court to have regard to Ms Oneroa-Hill’s claims she undertook mahi in lieu of fines. Failure to have regard to this factor amounts to an error of principle. However, it will be for the Judge on sentencing to determine to what extent, if any, the circumstances of Ms Oneroa-Hill’s mahi do, in fact, operate to influence the end sentence.
[48] The next question is whether, in terms of s 251(2) of the CPA, I should set aside the sentence and impose another sentence or whether I should remit the matter back to the District Court for re-sentencing and, if so, whether I should make any further directions.
[49] Mr Davison says the matter should be remitted back to the District Court for re-sentencing. He submits an order should be made that the District Court “may” consider the hours of mahi when considering the appropriate sentence.
[50] I agree with Mr Davison that remitting the sentence to the District Court is the proper course. I also direct, for the reasons given, that evidence be filed in the form of an affidavit, possibly from Wiremu Tautari and/or Georgina Turanga, confirming the nature of the work undertaken, the hours completed and any other matters which may be relevant to the sentencing process. The affidavit should also exhibit any documentary material tending to support Ms Oneroa-Hill’s claims.
[51] In so directing, I wish to make it plain that this course has been adopted in recognition of the unique circumstance this particular case presents. It is a course suggested by the Crown and one which I agree is likely to be helpful to the sentencing Judge in deciding what weight and value, if any, may be given to Ms Oneroa-Hill's efforts. It is a procedure which should not be seen as setting any
kind of precedent for future cases which will, of course, need to be decided on the particular facts and circumstances which confront the Judge at sentencing.
[52] On the question of whether I should make any further directions in terms of s 251(2), I consider such a course is necessary. I have decided that the District Court’s failure to consider Ms Oneroa-Hill’s claim she had undertaken mahi amounts to reversible error. At re-sentencing the Court will need to examine the context and circumstances of the mahi and assess its influence, if any, on the end sentence. Implicit in my judgment is the requirement on the sentencing Court to have regard to these claims of mitigation. It will be for the Court to assess their value for sentencing purposes.
[53] While it will be for the sentencing Court to assess the impact on sentence of the mahi undertaken by Ms Oneroa-Hill, I make the following general observations which may have relevance to that assessment.
[54] First, I reiterate that Paa Kooti’s so-called order of 160 hours of mahi has no formal legitimacy as an enforceable Court-sanctioned order. That must be the starting point.
[55] Secondly, as s 56 of the Act makes clear, community work is a sentence designed to hold the offender accountable to and compensate society at large. Under s 56(1)(a) the Court, in considering whether to impose a sentence of community work, “must give particular consideration to whether the nature and circumstances of the offending make it appropriate for the offender to be held accountable to the community by making compensation to it in the form of work”. The emphasis is on accountability and compensation to the community. While the actual work undertaken will, of course, only directly benefit a small portion of the community, the sentence is designed with the interests of society as a whole in mind. This could be relevant when considering the mitigating effect of work undertaken voluntarily by a member of a particular group or organisation for that group or organisation. If at re-sentencing the Judge is satisfied the mahi was nothing more than the sort of voluntary work any responsible member of a community would undertake to support that community, then very modest credit might be given.
[56] Thirdly, the Act requires a probation officer to oversee a sentence of community work. It is the probation officer who is charged with determining where the offender is to be placed and it is the probation officer who is charged with supervising completion of the work. In discharging these duties the probation officer is guided by the relevant provisions of the Act. As Fogarty J observed in
Terry v Department of Corrections:7
“Section 61 imposes an obligation on the probation officer to decide how the community work will be done, and ss 62 and 63 give guidance on that judgment. Section 64 addresses when the community work is to be done and it is to be at times which are fixed by an agreement between the probation officer and the agency and notified in writing to the offending. …”
[57] Thus, the clear scheme of the Act is to confer decision-making authority and supervision to the probation officer to help ensure the sentence of community work achieves its statutory objectives. Voluntary work undertaken independently of the Court system circumvents this statutory process.
[58] All of these points simply reinforce that the mahi undertaken voluntarily by Ms Oneroa-Hill is merely evidence from which to infer the existence of mitigating factors such as acceptance of responsibility and completion of remedial action. It is not work which operates in any way as a substitute for the community work which would have otherwise been imposed by a sentencing Court. Offenders who may attempt to pre-empt a sentence of community work by undertaking work voluntarily therefore risk receiving limited, or even no, recognition at sentencing for that work.
[59] For this reason, institutions such as Paa Kooti as well as offenders wishing to undertake significant amounts of voluntary community work would be well advised to work co-operatively with the Department of Corrections and the Courts to protect against unnecessary and significant duplication of work. To do otherwise would be to run the very real risk that work undertaken outside the auspices of properly regulated Government agencies, will not be taken into account. This will have the effect that offenders will find themselves duplicating their efforts by not only
completing community work within their own societal structures but also being
7 Terry v Department of Corrections HC Greymouth CRI-2010-418-1, 10 March 2010 at [21].
required to complete the full amount of any sentence of community work imposed by the Court.
[60] Lastly, I record that it will be open for Ms Oneroa-Hill to request the Court to hear from Ms Turanga at the hearing.
Result
[61] The appeal is allowed and the sentence of 150 hours’ community work is quashed.
[62] The sentence is remitted back to the District Court for re-sentencing pursuant to s 251(2)(c).
[63] In remitting the sentence I direct the District Court to consider the extent to which any hours of mahi which the District Court is satisfied were undertaken by the appellant are to be taken into account when considering the appropriate sentence.
[64] I direct that an affidavit/s, covering the matters of mitigation as discussed in this judgment, be sworn and filed in the District Court within 15 working days of
the date of this judgment.
Moore J
Solicitors:
Crown Solicitor, Tauranga
Copy to:
The Appellant
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