Tahapehi v Police - [2018] NZHC 2666

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-74 [2018] NZHC 2666

BETWEEN
LEA BLAIR TAHAPEHI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 October 2018

Appearances:

K L Chalmers for Appellant
C J Boshier for Respondent

Judgment:

17 October 2018

JUDGMENT OF NICHOLAS DAVIDSON J

A. INTRODUCTION

[1] Ms Tahapehi was convicted at trial in the District Court on one charge of possession of ammunition and one charge of possession of a knife.1 The Judge sentenced her to five months home detention.2

[2] She appeals against her convictions. She says the car search which gave rise to the charges was unlawful, and that the Judge erred in finding that she was in possession of the knife in a public place.

[3] Otherwise, she appeals against the sentence, saying the Judge was wrong to place no weight on her version of the facts, and that the sentence is manifestly
excessive.

1 Police v Tahapehi [2018] NZDC 20520.
2 Police v Tahapehi [2018] NZDC 15744.

TAHAPEHI v POLICE [2018] NZHC 2666 [17 October 2018]

Jurisdiction and approach to appeal

[4] Ms Tahapehi appeals as of right.3 The Court must allow the appeal against conviction if it finds that a miscarriage of justice has occurred.4 A miscarriage of justice is defined as any error, irregularity, or occurrence in or in relation to the trial that created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.5

[5] The Court may only allow an appeal against sentence if it is satisfied there is an error in the sentence imposed and that an alternative sentence should be imposed.6
If the sentence can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be manifestly excessive or inappropriate if the sentencing Judge's discretion is to be interfered with.

The alleged offending

[6] On the morning of 14 December 2017 Ms Tahapehi was at an address on Barbadoes Street which was under Police surveillance. At 8:30 am she left the address in a car driven by an associate, her then boyfriend. Police followed the car and pulled it over in circumstances which are challenged in this appeal. A knife was seen in the back seat and as a result the car was searched. The sheathed hunting knife, a bag with a face mask and a roll of insulation tape, and a loaded shotgun were seized from the car.

[7] Ms Tahapehi and her associate were arrested and searched. In Ms Tahapehi's bra was found a plastic zip-lock bag with 32 rounds of ammunition and a bag of BB-gun pellets. She said that she had seen the ammunition in the car and put it in her bra when she realised they were going to be searched. She said she had no knowledge
of the shotgun.

3 Criminal Procedure Act 2011, s 229 and 244.
4…

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: [2018] NZHC 2666
Decision Date: 17 October 2018

CaseChat Overview and Summary

In Tahapehi v Police, the appellant, Ms Tahapehi, appealed against her conviction for possession of ammunition and a knife, as well as her sentence. The court was required to decide whether the car stop and subsequent search were lawful, and if not, whether the evidence obtained should be excluded. The court also had to determine if the appellant was in possession of a knife in a public place, and whether the sentence imposed was appropriate.

The court found that the car stop was lawful, as the officers had a genuine purpose under the Land Transport Act to serve a demerit points suspension notice. Although the officers were initially interested in the car and its occupants for other reasons, the lawful purpose of the stop was established when they learned of the demerit points notice. The court held that the continued detention after the legitimate purpose was spent was unlawful, but the evidence obtained was admissible under the balancing test in s 30 of the Evidence Act. The court concluded that the evidence was highly probative and crucial to the prosecution's case.

The court found that Ms Tahapehi was in possession of a knife in a public place. The evidence established that she had touched the knife at some point and was in the car with it in plain view. The combination of her fingerprint on the blade and her presence in the car with the knife gave rise to the inference of possession and control.

Regarding the sentence, the court found that the starting point of nine months was too high. The court considered the appellant's version of events and the lack of direct connections between her and the other items found in the car. The court determined that the appropriate starting point was six months imprisonment, with a one-month uplift for possession of a knife, resulting in an overall sentence of seven months imprisonment. However, the court found that a sentence of three months two weeks home detention was the appropriate outcome, as it adequately met the objective of deterrence.

The appeals against conviction were dismissed, and the appeal against sentence was allowed. The sentence was quashed and replaced with one of three months two weeks home detention.

Orders