Tahere v Police

[2014] NZHC 570

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-000089 [2014] NZHC 570

BETWEEN  DAVID JOSEPH TAHERE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   25 March 2014

Appearances:           M Dorset for Appellant

N Tahana for Respondent

Judgment:                25 March 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 25 March 2014 at 4.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Rotorua

Copy to:            M Dorset, Rotorua

Appellant

TAHERE v NZ POLICE [2014] NZHC 570 [25 March 2014]

[1]      David Joseph Tahere pleaded guilty to one count of assault with intent to injure and one of threatening behaviour.  On 11 September 2013 in the District Court at Taupo Judge Weir sentenced him to nine months’ imprisonment on the lead charge of  assault  with  intent  to  injure  and,  in  addition  to  standard  release  conditions, imposed special release conditions, including a drug and alcohol assessment and a psychiatric assessment.

[2]      Mr Tahere lodged an appeal, initially on 23 October 2013.  In his appeal he challenged  the  entry of  the conviction  for  assault  with  intent  to  injure and  the imposition of the release conditions.

[3]      The appeal file was before the Court on 25 February 2014.  As Wylie J noted at that time:

[3]       There have been difficulties with this matter. A Mr Hall was initially instructed by Mr Tahere. As I understand it, he received instructions from Mr Tahere to proceed with the appeal.  However, Mr Hall is no longer instructed and did not appear before me today.  Rather, an appearance on Mr Tahere’s behalf was entered by Ms Dorset.  She has very recently been assigned by the Legal Services Agency.  She has received the file and she has spoken to Mr Hall.  She has not, however, been able to speak to Mr Tahere.  Ms Dorset was not in a position where she could offer any meaningful submissions in relation to the appeal.

[4]      Wylie J adjourned the appeal for call to 25 March 2014.

[5]      The difficulties continue.  This morning Ms Dorset appeared.  Mr Tahere also appeared  in  person.    Ms  Dorset  explained  the  difficulty  she  had  experienced obtaining instructions from Mr Tahere but confirmed his appeal was on the basis that he had not intended to plead guilty to an assault with intent to injure and that he challenged the imposition of the release conditions for drug and alcohol assessment and for a further psychiatric assessment.  Ms Dorset advised that she felt constrained to seek to withdraw as counsel if the matter was to be further adjourned.  In those circumstances I asked Mr Tahere to address the Court himself.

[6]      Mr Tahere confirmed that he considered he had not pleaded guilty to assault with intent to injure and that there was no reason for the Judge to have imposed the special release conditions he had.  Drugs and alcohol were not part of the offending

for which he was convicted and he considered there was no need for him to be further assessed by a psychologist or psychiatrist.  He noted that in the past the Court had lifted such conditions.  Mr Tahere confirmed that he did not challenge the length of the sentence itself.  Indeed he has served the sentence.

[7]      It is in the interests of justice and Mr Tahere to have this matter determined rather than further put off.  There is really nothing further that can be said on behalf of Mr Tahere.  Two counsel have been made available to him for the appeal, but both have apparently experienced difficulties in obtaining proper instructions.

[8]      The record of the proceeding in the District Court is clear.   The charging document is clear Mr Tahere was charged with the offence of, with intent to injure Nikki Te Aroha Karaitiana assaulted the said Nikki Te Aroha Karaitiana.  Mr Tahere appeared before the Court on 3 July in the District Court at Taupo and then on three subsequent occasions, including on 31 July when he entered a guilty plea and was convicted and remanded for sentence.  On the last three of those occasions he was represented by Ms Opai.

[9]      Ms Dorset confirmed that Ms Opai was an experienced practitioner who had retired from practice and shifted to Amsterdam with her family.   It is simply not credible to suggest that Mr Tahere was not aware of the offence he was charged with given that he had assigned counsel and that the guilty plea was entered on the third appearance after he appeared with assigned counsel.  There is no confusion in the charging documents nor in the summary of facts.   Counsel would no doubt have discussed the charge with Mr Tahere before the entry of the guilty plea.

[10]     As to the post release conditions, the probation officer recommended special conditions that Mr Tahere attend and complete an appropriate drug and alcohol programme and that he undertake a psychological assessment, in both cases to the satisfaction of the probation officer and service provider.  In light of the information on the file and in particular, a letter from the probation officer of 4 July 2013 to the presiding Judge with an accompanying letter from a locum psychiatrist, there is evidence of past and long-term drug use by Mr Tahere supporting the special condition to that effect.   Further, it is apparent that the psychiatrist had identified

issues which again supported the imposition of the special term that he undertake a further psychiatric assessment and complete such counselling and treatment as may be required.

Result

[11]     In the circumstances the appeal must be and is dismissed.  I thank Ms Dorset for her assistance as counsel assigned in this case.

Venning J