R v Iti - [2012] NZHC 1130

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-004-20749

CRI-2007-063-4441

CRI-2007-004-23066

CRI-2007-085-7843 [2012] NZHC 1130

THE QUEEN

v

TAME WAIRERE ITI

TE RANGIKAIWHIRIA KEMARA URS PETER SIGNER
EMILY FELICITY BAILEY

Hearing: 24 May 2012

Counsel: AR Burns, E Finlayson-Davies and DM Robinson for Crown
R Fairbrother and GM Fairbrother for Tame Iti
JH Bioletti, CB Hirschfeld and NJB Taylor for Te Rangikaiwhiria
Kemara
CWJ Stevenson and EA Hall for Urs Signer
VC Nisbet and CAJ Fewkes for Emily Bailey

Judgment: 24 May 2012

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:
Crown Solicitor, Auckland ross.burns@meredithconnell.co.nz and emma.finlayson- davis@meredithconnell.co.nz
V C Nisbet, val.nisbet@xtra.co.nz
R Fairbrother Russell@fairbrother.net.nz
C Stevenson cstevenson@xtra.co.nz
J N Bioletti, acquit@xtra.co.nz

R V TAME WAIRERE ITI HC AK CRI-2008-004-20749 [24 May 2012]

Introduction

[1] Mr Iti, Mr Kemara, Mr Signer and Ms Bailey, you appear for sentence having been found guilty by a jury of charges of unlawful possession of firearms and a restricted weapon. Each of you were found to be in unlawful possession of firearms at military-style camps in the Urewera Ranges in January, September and October
2007 and, with the exception of Mr Signer, at a camp in June of that year. You were also found to be in possession of a restricted weapon, namely Molotov cocktails, at the September camp and to be in possession of firearms when the police operation terminated on 15 October 2007.

[2] You were found not guilty on four charges relating to camps in November

2006 and April and August 2007. The jury was unable to reach a verdict on a charge of participating in an organised criminal group. On the application of the Crown, a stay of proceedings has since been entered on that charge.

Application to discharge

[3] It is appropriate that I first rule on the applications made to discharge you without conviction. Those applications are advanced under s 347(3) of the Crimes Act 1961 and s 106 of the Sentencing Act 2002.

Section 347(3)

[4] The first obstacle to the applications for a discharge under s 347 is a jurisdictional one. In Attorney General v District Court at Auckland & Fong,1 a Full Court held that the entry of a conviction extinguishes the jurisdiction to discharge an accused under s 347(3). Convictions were entered following the verdicts of guilty in this case. There would appear therefore to be no jurisdiction to grant the
applications.

1 Attorney General v District Court at Auckland & Fong HC Auckland CIV-2006-404-5460,
2 April 2007 at [28].

[5] I will, however, proceed to consider (briefly, given the context in which this ruling is being given) whether even if there was jurisdiction, the application could succeed either by a discharge under s 347 or by way of a stay of proceedings under the Court’s inherent power to control its processes.

[6] The applications stem from the decision of the Supreme Court in Hamed v R2 which ruled surveillance evidence admissible against the four accused who faced charges under the Arms…

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.

Continue reading R v Iti

Details

AGLC: R v Iti [2012] NZHC 1130
Case: [2012] NZHC 1130
Decision Date: 24 May 2012

CaseChat Overview and Summary

In R v Iti, the High Court of New Zealand sentenced Tame Iti, Te Rangikaiwhiria Kemara, Urs Signer, and Emily Bailey for unlawful possession of firearms and a restricted weapon. The defendants were found guilty of possessing firearms at military-style camps in the Urewera Ranges in 2007 and possessing Molotov cocktails at one of the camps. The court denied applications to discharge the defendants without conviction and proceeded to sentencing. The court determined that the defendants' possession of firearms and restricted weapons was part of a larger plan to establish a private militia to address Tuhoe grievances. The court found the defendants' actions to be highly aggravating, noting the lengthy period and repetitive nature of the offending, the number of weapons involved, and the use of Molotov cocktails. However, the court also recognised mitigating factors, such as the defendants' intent to achieve their objectives through peaceful means if possible and the lack of immediate intention or imminent prospect of violent offending. The court sentenced Iti and Kemara to two and a half years imprisonment each, and Signer and Bailey's sentences were adjourned to enable reports on the possibility of serving a sentence of home detention at Parihaka or elsewhere.

Orders