Stanton aka Heke v Police - [2017] NZHC 1939

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2017-442-10 [2017] NZHC 1939

BETWEEN
LEWIS REGINALD STANTON (AKA

HONE MA HEKE) Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 July 2017

Counsel:

A R Goodison for Appellant
K B Bell for Respondent

Judgment:

15 August 2017

JUDGMENT OF ELLIS J

[1] Mr Stanton was convicted of common assault following a defended hearing before Judge Mill on 20 March 2017.1 The only issue for the Judge was whether Mr Stanton acted in self-defence. The Judge found he did not. On 20 April, Judge Mill sentenced him to three months’ imprisonment.2 He has now served that sentence.

[2] Mr Stanton appeals both conviction and sentence.

Conviction decision

The facts and evidence

[3] Mr Stanton has for some time been living on the street outside Farmers in the main street of Nelson, as a general form of protest against “the system”. He had a

1 Police v Stanton [2017] NZDC 10529.
2 Police v Stanton [2017] NZDC 8232.

STANTON (AKA HONE MA HEKE) v POLICE [2017] NZHC 1939 [15 August 2017]

bed and other property in boxes or spread around on the footpath. He also had some signs and placards displayed.

[4] Mr Stanton’s continued residence on the street is unwelcome to a number of local residents, some of whom have formed a protest group whose aim is to persuade the Council to evict him from the Nelson CBD.

[5] On 20 November 2016, about 20 members of this group gathered at the top of Trafalgar Street and marched towards Farmers. Their plan was to protest across the road from the store. Mr Stanton was aware of this plan, as the protest had been well-publicised. But as the group approached Mr Stanton on his side of the street, they were bombarded with water balloons by supporters of Mr Stanton who were gathering nearby. This, Judge Mill said, changed the character and mood of the crowd.

[6] Both the anti and pro-Stanton groups became intermingled on the Farmers side of the street, on or around Mr Stanton’s property. Tension mounted. Some of the protestors tried to replace Mr Stanton’s placards with their own, and these were quickly removed by Mr Stanton or his supporters. He remonstrated with the protestors, and soon became particularly focussed on the leader of the anti-Stanton group, Mr Dawson, who was well known to him. These events and what happened next, were all captured on film. The DVD footage was available to the Court.

[7] Mr Dawson’s evidence was that the two men were yelling at each other. Mr Stanton was saying that the deteriorating situation was all Mr Dawson’s fault. Mr Dawson said he tapped a box belonging to Mr Stanton with his foot, and told him to get his stuff and get out of town. He described the tap as a “symbolic” gesture. Then, without warning, Mr Stanton punched him in the right cheek, followed by a little jab. The punch was forceful and he was hurt…

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: [2017] NZHC 1939
Decision Date: 15 August 2017

CaseChat Overview and Summary

In Stanton v Police, the appellant, Lewis Reginald Stanton, also known as Hone Ma Heke, appealed both his conviction and sentence for common assault. The case originated from an altercation between the appellant and the leader of a protest group, Mr Dawson, outside Farmers in Nelson. The appellant was found to have punched Mr Dawson in the face, an act he claimed was in self-defence, as he believed his personal safety was under threat due to the confrontation. The District Court rejected the self-defence plea, finding the appellant was the aggressor, not the victim. The appellant was sentenced to three months’ imprisonment, a sentence he has since completed.

The central legal issue in the appeal was whether the District Court erred in rejecting the appellant’s claim of self-defence. The appeal court assessed whether the appellant genuinely believed he was under threat, if he used force in response to that perceived threat, and if the force used was reasonable. The court concluded that the evidence strongly suggested that the appellant believed there was a threat to his property, not his personal safety. Consequently, the court found that the appellant’s punch was not in self-defence, but rather an act of retaliation and frustration. The court also noted that even if the appellant’s belief was genuine, punching Mr Dawson was not a reasonable response given there was no immediate physical threat to the appellant’s person.

The appeal against the sentence was considered moot as the appellant had already served his sentence. However, the court noted that it would not have considered an order to come up if called upon appropriate, given the appellant’s history of assault. Due to the appellant’s refusal to comply with community-based sentences and his lack of a fixed address, imprisonment was deemed the only viable option. The sentence of three months was deemed within the appropriate range given the appellant’s previous convictions and the maximum penalty for the offence.

The appeal against both conviction and sentence was ultimately dismissed. The appellant’s claim of self-defence was rejected, and the sentence was deemed appropriate under the circumstances.

Orders