Tahiti v Police HC Auckland CRI 2010-404-330

[2010] NZHC 2224

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-330

WAYNE MATA TAHITI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 December 2010

Appearances: T J Darby for the Appellant

P Singh for the Crown

Judgment:      10 December 2010

RESERVED JUDGMENT OF ELLIS J [On Application for Leave to Appeal]

This judgment was delivered by me on 10 December 2010 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Parnell Law, PO Box 37748, Auckland 1151

TAHITI V POLICE HC AK CRI-2010-404-330  10 December 2010

[1]      Mr Tahiti has applied for leave to appeal all aspects of my decision dated

1 November 2010 to the Court of Appeal.  In that decision I dismissed an appeal by Mr Tahiti in relation to the sentence imposed on him by Judge Everitt in the District Court following his conviction on one charge of possession of cannabis for supply.

[2]      The application for leave was filed approximately two weeks out of time in terms of s 144 of the Summary Proceedings Act but I am prepared to deal with it on its merits.

[3]      Prior to hearing the submissions of counsel I had been minded to grant leave to appeal on one question arising from my judgment, essentially being whether my rejection of Mr Tahiti’s argument as to the basis upon which Judge Everitt fixed the sentencing starting point (that argument being summarised in [8] of my judgment) was erroneous in law.   The basis for my thinking on that was that the argument advanced on Mr Tahiti’s behalf by Mr Darby has now been raised in this Court on numerous occasions (see paragraph [10] of my judgment) and there appeared to be some merit in having the determinative light of higher authority shined upon the issue.  As well, to the extent such arguments appear to be invited by an absence of legislative clarity (noted by me at [15], [16] and [19] – [21] of my judgment and by others), it might similarly be conducive to have the matter considered by the Court of Appeal.

[4]      When I raised my initial thinking with Mr Darby he was in general agreement with them and indeed indicated that the “other reasons” favouring the grant of leave that he wished to advance were similar to the two matters to which I have just referred.    He  also  indicated  tentative  acceptance  that  the  other  aspects  of  my judgment that were sought to be appealed by Mr Tahiti did not lend themselves so readily to the s 144 criteria.

[5]      Mr Darby also addressed me on some of the finer points of the matters he wished to argue in any appeal but in light of the conclusion I have reached it is not necessary for me to set them out here.

[6]      Ms Singh for the respondent maintained her opposition to the grant of leave even on the even more circumscribed basis I have outlined above.  In particular she submitted the only conceivably relevant point of law raised by Mr Tahiti’s appeal to this Court was whether Judge Everitt’s sentence in the District Court was manifestly excessive.  In that respect she stressed the numerous authorities that have stated that in sentencing matters it is not the method by which a final sentence is reached but rather the final sentence itself that is the proper focus of any appellate process.  It followed that the Court of Appeal could not and should not concern itself with the kinds of matters raised by the s 6(3) argument which essentially was one going to sentencing methodology rather than the substantive sentencing outcome.

[7]      Ms Singh helpfully referred me to the decision of the Court of Appeal in

Waitakere City Council v Hertzke[1] in which the Court said:

Only in rare cases will a sentencing matter raise a question of law of such importance as to justify a further appeal to this Court (R v Goodwin (unreported 13 October 1993, CA426/93)).  One case where leave was given to appeal on a sentencing matter was R v McPhee (unreported 20 July 1981, CA38/81); leave was granted because the High Court Judge and counsel had overlooked the appropriate maximum sentence; the sentence imposed on appeal to the High Court by the Solicitor-General was 12 months imprisonment for possession of cannabis for supply.  This was the maximum sentence possible because the charge had been laid summarily.   The High Court Judge had been under a misapprehension that the maximum sentence was higher as it would have been, had the information been laid indictably. Consequently, the High Court Judge’s sentence could not reflect the factors of leniency which he had expressed.  This Court reduced the sentence to 6 months’ imprisonment in order to reflect those facts.  The Court considered that  the  Judge’s  misapprehension  about  the  maximum  sentence  was  a material mistake of law, raising a question of law sufficient to justify the grant of special leave to appeal.

[1] Waitakere City Council v Hertzke [1997] NZRMA 222.

[8]      It is perhaps notable that the McPhee decision (in which leave was granted) involved exactly the same statutory provision as the one at issue in the present case. In my view, and notwithstanding what I accept is a very restrictive approach to second appeals in this area, there will be cases where questions of methodology have potentially such an impact on the substantive outcome (and therefore the central legal question of manifest excessiveness) that they are capable of qualifying under the first limb of the s 144 test.  If, as in McPhee, the sentencing court has proceeded

on a premise that is wrong in law, then I would think that by definition there is a legal question involved that may well go to, but is distinct from, manifest excessiveness.

[9]      In the present case I maintain the view that it would probably be possible to articulate such a question of law.  That said, Mr Tahiti has not succeeded in doing so in his application for leave and in light of the decision I have reached on the leave application I shall not attempt it here.  I have, however, already referred to the “other reasons” that might in my view warrant leave to appeal could such a question be appropriately framed.

[10]     Although it will be evident that I do not entirely accept Ms Singh’s principal submission, I do not consider that leave to appeal should be granted.  That is in part because I do not consider that the arguments that Mr Tahiti wishes to advance in relation to any such question have any realistic prospect of success.  As noted in my judgment all the other High Court Judges who have considered the issue have been of one mind.

[11]     Perhaps more significantly, however, the reality is that Mr Tahiti has now been released from custody.  I was not aware of this prior to my hearing the leave application on 7 December.   The issue (as regards him, at least) is therefore now moot.   I decline to approach the matter as suggested by Mr Darby namely that a successful appeal might nonetheless give rise to some kind of “credit” for Mr Tahiti at some time in the future in the event of subsequent offending on his part.

[12]     As  I have already indicated,  I also decline leave to  appeal on  the other matters identified in the application simply on the grounds that they do not qualify as questions of law.  Nor are there good reasons why they should be permitted to be

reargued on appeal.

Rebecca Ellis J