Peka v Police - [2019] NZHC 2128

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-26

[2019] NZHC 2128

LARS MARLON PEKA

v

NEW ZEALAND POLICE

Hearing (via AVL): 27 August 2019

Counsel:

W R Hawkins for Appellant M M Mitchell for Respondent

Judgment:

28 August 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 15 July 2019, the appellant, Mr Peka, was convicted and sentenced by Judge Adeane in the Napier District Court to six months’ community detention following a Judge-alone trial on four charges of failing to comply with reporting obligations arising from his registration on the Child Sex Offender Register (the Register).1

[2] He appeals against this conviction on the ground that the Judge erred by ruling that the notice of reporting obligations on the Register was valid and, therefore, a miscarriage of justice has occurred. It is contended that the notice was invalid as it

1 New Zealand Police v Peka [2019] NZDC 14389; Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 39: maximum penalty one year’s imprisonment and a $2000 fine.

PEKA v NEW ZEALAND POLICE [2019] NZHC 2128 [28 August 2019]

was not accompanied by an instrument of delegation from the Chief Executive of the Department of Corrections (the Chief Executive).

[3] The respondent’s position is that no such document was required to accompany the notice and, therefore, it was valid. Alternatively, it is submitted that even if the notice was invalid, provided the contents of the notice have unequivocally been brought to the attention of the defendant, he is obliged to comply with it and any invalidity does not absolve the defendant of his obligation to comply.

Background

[4] Mr Peka has been on the Register since December 2018 and, as such, was required to report the address of each of the premises at which he generally resided and, if he did not generally reside at any particular premises, the name of each of the localities in which he could generally be found. This information was required to be reported 48 hours prior to any changes.

[5] He was also required to report the details of any telecommunication services used, including the phone number and service provider, providing such information within 72 hours of any change.

[6] On 26 January 2019, Mr Peka advised that he had been asked to leave his approved address but had been given time to find another suitable address. The Police reminded him at this time of his obligation to report any changes to his residential address 48 hours prior to any change. Mr Peka also said that he did not have a cellphone but intended speaking with Work and Income New Zealand later that day in an effort to get a phone.

[7] On 19 February 2019, Police completed a home visit and were advised that Mr Peka had moved out around 4 February 2019. Enquiries revealed that he had since travelled to Mahia, Wairoa and Flaxmere. Further enquiries showed that Mr Peka…

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: [2019] NZHC 2128
Decision Date: 28 August 2019

CaseChat Overview and Summary

Lars Marlon Peka appealed against his conviction and sentence imposed by the Napier District Court. He was convicted and sentenced to six months’ community detention on four charges of failing to comply with reporting obligations arising from his registration on the Child Sex Offender Register. He argued that the Judge erred by ruling that the notice of reporting obligations on the Register was valid and, therefore, a miscarriage of justice has occurred. He contended that the notice was invalid as it was not accompanied by an instrument of delegation from the Chief Executive of the Department of Corrections. The respondent submitted that no such document was required to accompany the notice and, therefore, it was valid. Alternatively, it was submitted that even if the notice was invalid, provided the contents of the notice have unequivocally been brought to the attention of the defendant, he is obliged to comply with it and any invalidity does not absolve the defendant of his obligation to comply.

The court found that a plain reading of the clause would indicate that the Chief Executive was required to ensure that a procedure was in place whereby offenders placed on the Register were to be informed of their reporting obligations. The wording of the clause is "must cause written notice to be given" rather than "must give written notice", which suggests that the act of giving notice is to be carried out by someone other than the Chief Executive and does not require formal delegation. That giving of notice is an administrative requirement, rather than the exercise of a statutory power or function. Mr Peka was informed of his reporting obligation and the penalties for failing to comply with those obligations in writing when he was placed on the Register, and was reminded, at least of the residence reporting obligation, by Police on 26 January 2019. The written notice that was served on him was not invalid and the District Court Judge made no error in finding that the Act was one of a "machinery" nature which did not require the Chief Executive to formally delegate her authority to employees of the Department of Corrections.

Accordingly, the appeal was dismissed.

Orders