Te Wake v Police

[2016] NZHC 1629

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000107 [2016] NZHC 1629

BETWEEN

KAREN TE WAKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 July 2016
Appearances:	D Nairn for Appellant C Howard for Respondent
Judgment:	19 July 2016

JUDGMENT OF VENNING J

This judgment was delivered by me on 19 July 2016 at 11.30 am, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Kayes Fletcher Walker, Auckland

Copy to:            D Nairn, Auckland

TE WAKE v NEW ZEALAND POLICE [2016] NZHC 1629 [19 July 2016]

[1]      Following a defending hearing in the District Court at Papakura Ms Te Wake was convicted of an offence under s 21 of the Summary Offences Act 1981, namely that with intent to intimidate Dollar Mataia, she threatened to injure him.1   Judge G F Hikaka sentencing her to 40 hours community work and nine months supervision.2

[2]      Ms  Te Waka  appeals  against  conviction.    She  argues  an  element  of  the offence was not proved and, in the alternative that she should have been discharged without conviction.

[3]      The offending arose out of a domestic incident.  The police were called to an address in Papakura following advice that there was alleged offending involving a threat to stab.  The appellant had called the police.  Three police officers attended. Sergeant Ramsay spoke to the appellant and asked her about the knife. The appellant told her “He has taken it off me” indicating the room next door.  The Sergeant then located a male, the appellant’s partner, in that room on the bed.  He did not want to speak to the Police.  The Sergeant then heard the appellant say that she wanted to stab him, “I’m going to fucken stab you”.   The appellant said those words while looking  to  the  bedroom  where  her  partner  was.    The  appellant  was  arrested. Constable Adams  confirmed  that  he  had  heard  words  to  the  same  effect.    His evidence supported that of Sergeant Ramsay.

[4]      The Judge rejected a submission of no case to answer made on the basis there was no evidence that Mr Mataia was frightened or felt intimidated.  The Judge also rejected a submission that the threat was in effect a cry for help by the appellant. The Judge was satisfied beyond reasonable doubt that there had been a threat to injure Mr Mataia which he said was, of itself, an intimidating thing.  The Judge held there was no need for Mr Mataia to be frightened for the offence to be made out.

[5]      In support of the appeal against conviction counsel submits again that the

appellant’s intent in making the threat was to ensure she was taken to respite care as her mental health had deteriorated.  He submitted she had called the police to ask to

1      New Zealand Police v Te Wake [2016] NZDC 6142.

2      New Zealand Police v Te Wake [2016] NZDC 6146.

be taken into respite care.  It is submitted that the Judge had not expressly addressed the intention of the appellant.

[6]      To prove the charge the Crown must establish that the appellant made the threat to injure her partner, with intent to frighten or intimidate him.  A defendant will have the necessary intent if she acts with the purpose of causing the result or in the knowledge it is virtually certain to result.  It is not a necessary element of the charge that the victim felt or was intimidated.3

[7]      The difficulty for the principal argument advanced in support of the appeal is that there was no evidence to support the submission that the threat was made, not with intent to frighten or intimidate the appellant’s partner, but rather with intent to obtain respite care.  The police officer’s evidence was that she had concerns for the appellant’s  mental  health,  but  that  was  in  relation  to  her  concerns  about  the appellant’s  actions  and  volatility,  which  led her to direct the arrest.   While the appellant had called the police, she had not said she did so in order to obtain respite care.  Nor did she ask for that in her dealings with the police.

[8]      In the absence of any evidence from the appellant as to her reason for making the threat, the Court was left with evidence of the threat in the circumstances where the appellant was in proximity to the person she had directed the threat to at the time, an acknowledgement by the appellant to Sergeant Ramsay that there had been a knife, and escalating volatility in the appellant’s behaviour.

[9]      The Judge was entitled to infer, on the basis of that evidence, (and to find proved beyond reasonable doubt), that the appellant had made the threat with intent to intimidate her partner.   Even though the Judge did not expressly identify that element of the offence in his judgment he did refer to the threats and the appellant’s actions as intimidating.  As counsel for the respondent submits it could arguably be implicit from the Judge’s comment:  “That in and of itself is an intimidating thing to do”,  that  he  had  drawn  the  inference  that  the  appellant  must  have  intended  to

intimidate.

3      Farquhar v Police HC Dunedin CRI-2011-412-000001, 8 April 2011.

[10]     However, even if Mr Nairn is correct and the Judge did not address the matter, on appeal this Court can draw its own conclusion from the evidence and circumstances referred to above that the appellant had the necessary intention in the circumstances described above.

[11]     As  to  sentence,  given  the  appellant’s  previous  record  which  includes  a number of breaches of Court orders, disorderly behaviour, common assault and other violent offending, this was not a suitable case for discharge without conviction.

[12]     The supervision directed was rehabilitative.   Given the past offending the sentence of community work was an appropriate response to the appellant’s actions in this case. The 40 hours is the minimum that the Judge could impose.

Result

[13]     The appeal against conviction and sentence is dismissed.

Venning J