Te Hiwi v Police

[2016] NZHC 2819

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

CRI-2016-419-000019

[2016] NZHC 2819

BETWEEN

JOHN WINARA NATANA TE HIWI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

24 November 2016

Appearances:

Appellant in person

ML Dillon for Respondent

Judgment:

24 November 2016

ORAL JUDGMENT OF TOOGOOD J

Te Hiwi v New Zealand Police [2016] NZHC 2819 [24 November 2016]

[1]    On 12 February 2016, John Winara Natana Te Hiwi was convicted, following a defended hearing in the District Court at Hamilton before Judge MLSF Burnett, on a charge of refusing to permit a blood specimen to be taken after having been required to do so under s 72 of the Land Transport Act 1998.   The offence, committed on    13 August 2015, was a third or subsequent offence of that type.

[2]    On 9 March 2016, Mr Te Hiwi was sentenced to undertake 150 hours of community work and placed under intensive supervision for 12 months, subject to conditions recommended by the Probation Service. He was disqualified from driving for a period of 14 months and a final warning was imposed, to the effect that if there was further offending of its kind then a term of imprisonment was inevitably the starting point.

[3]    Mr Te Hiwi appeals against his conviction and sentence. The grounds of appeal set out in the notice of appeal which was filed on 11 March 2016 refer, in addition to the New Zealand Bill of Rights Act 1990, to a number of United Kingdom and New Zealand statutes which are certainly of historical interest but they are relied upon by Mr Te Hiwi to establish, he says, that where he was stopped on River Road, Hamilton, was Māori customary land. The other documents which may be relevant to his point appear to relate to a Māori incorporation known as the Te Hiwi Piahana Māori Incorporation, and there is a copy of an extract of signatures to a document which appears to be Te Tiriti ō Waitangi.

[4]    Mr Te Hiwi's point, which he has put to me succinctly in his oral submissions, is that the Police had no authority to arrest and charge him for an offence allegedly committed on Māori customary land. He has not, however, addressed the findings of the District Court Judge which included her being satisfied that Mr Te Hiwi refused unlawfully to permit a blood specimen to be taken under the Land Transport Act after he was stopped at an alcohol check point on River Road, Hamilton. The Judge was not required to determine as a matter of law whether Mr Te Hiwi was driving on a road at the time of his apprehension, but that was clear from the evidence and the Judge was entitled to find that proved.

[5]    Mr Te Hiwi's submissions do not address the finding of the District Court Judge that the prosecution had proved his prior convictions, meaning that the present conviction was his third or subsequent offence. In fact, the criminal history sheet shows that Mr Te Hiwi was first convicted in 1980 on a charge of driving with excess breath alcohol in February of that year, and that he was convicted on 9 October 1980 of having committed the same offence in June. In March 1989, September 1991 and October 1993, Mr Te Hiwi was again convicted of driving with excess breath alcohol. His sixth conviction for driving with excess breath alcohol was entered in March 2006 for an offence committed in March 2001.

[6]    A seventh conviction for this type of offending would normally have resulted in a term of imprisonment but, in adopting a more lenient approach, the Judge noted the 14-year gap between the present offending and the most recent previous offence.

[7]    Nothing Mr Te Hiwi has filed with the Court or said today bears any consideration in relation to this offending because he does not address the relevant issues and, particularly, the ingredients of the offence.

[8]    Having reviewed the evidence, the judgment and the sentencing notes, I am satisfied that the Judge was entitled to enter the conviction for the reasons she gave and that the sentence was one which was open to her to impose.

[9]I dismiss the appeals.

...............................................

Toogood J