Te Whata v Police
[2014] NZHC 428
•11 March 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-485-000079 [2014] NZHC 428
BETWEEN MANU SHARON TE WHATA Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 11 March 2014
Counsel: F Minehan for Appellant
M J Ferrier for Respondent
Judgment: 11 March 2014
JUDGMENT OF COLLINS J
Introduction
[1] The question I have to consider is whether Judge Hastings erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred1 when he convicted Ms Te Whata of:
(1) wilfully damaging a car;2 and
(2) assault.3
Background
[2] Ms Te Whata lives in a property that adjoins land that was leased by Mr and
Mrs Lackner for grazing. The Lackners leased the land from the Akura Lands Trust
(the Trust). Ms Te Whata and Mr Lackner, who is a relative of Ms Te Whata’s, are
1 Criminal Procedure Act 2011, s 232(2)(b).
2 Summary Offences Act 1981, s 11(1)(a).
3 Crimes Act 1961, s 196.
TE WHATA v NEW ZEALAND POLICE [2014] NZHC 428 [11 March 2014]
beneficiaries of that Trust. Prior to 2010 Ms Te Whata chaired the Trust. Ms Te Whata’s position as Chairperson of the Trust was terminated, after which Ms Te Whata left the Wairarapa area for approximately one year. She returned to the home she now occupies in late 2011.
[3] There was a longstanding arrangement whereby the Lackners would access water from a tap that was driven from a pump that was in the garage of the property where Ms Te Whata lived. Ms Te Whata says she cancelled this arrangement on or about 3 February 2012 following a dispute over the felling of a tree on the land which the Lackners leased. Mrs Lackner appears not to have known about the severing of the electricity to the water pump.
[4] On about 12 February 2013 Mrs Lackner became concerned that stock on the property she and her husband leased were distressed. Mrs Lackner drove to Ms Te Whata’s house to ask her to re-connect the electricity to the water pump.
[5] An altercation developed between Ms Te Whata and Mrs Lackner that resulted in Ms Te Whata being charged with intentionally damaging Mrs Lackner’s car and assaulting Mrs Lackner.
[6] After the incident Mrs Lackner drove straight to the Masterton Police Station and explained to Constable Joblin that Ms Te Whata had thrown stones at her face and back and that she had also thrown rocks at Mrs Lackner’s car, causing damage to the vehicle.
[7] Constable Joblin noted welts on Mrs Lackner’s face and in particular, her forehead. Constable Joblin photographed damage to Mrs Lackner’s car. The photographs were of a broken windscreen, panel damage and of a rock that was wedged between a side mirror and a side window of the car.
[8] The following day Constable Hutton spoke to Ms Te Whata. She denied assaulting Mrs Lackner or causing any damage to her car. Ms Te Whata complained that Mrs Lackner had assaulted her by kicking Ms Te Whata in the region of her
wrist and forearm. Ms Te Whata visited her doctor on 14 February 2013. The
medical notes record bruising to Ms Te Whata’s forearm and on her abdomen.
Judge Hastings’ decision
[9] Judge Hastings heard evidence from four witnesses, namely: (1) Mrs Lackner;
(2) Constable Joblin, who spoke to Mrs Lackner;
(3) Constable Hutton, who spoke to Ms Te Whata; and
(4) Ms Te Whata.
[10] Judge Hastings concluded Ms Te Whata assaulted Mrs Lackner when she threw stones at her. He accepted Constable Joblin’s evidence that there were welts on Mrs Lackner’s forehead soon after the alleged assault. Judge Hastings concluded those welts were consistent with Mrs Lackner’s evidence that Ms Te Whata had thrown stones at her.
[11] Part of Judge Hastings’ decision was based on Ms Te Whata’s evidence that she picked up a rock and said to Mrs Lackner “if you don’t get off my property, I’m going to smash your face”.
[12] Judge Hastings also concluded Ms Te Whata had thrown rocks at Mrs Lackner’s car and in doing so had caused intentional damage to the vehicle. Judge Hastings accepted Mrs Lackner’s evidence that this damage occurred during the incidents at Ms Te Whata’s property, a short time before Mrs Lackner went to the police station.
[13] When sentencing Ms Te Whata Judge Hastings entered the convictions and ordered Ms Te Whata to come up for sentence if called upon within six months.4
4 Sentencing Act 2002, s 110(1) and (2).
Grounds of appeal
[14] Ms Te Whata’s appeal against conviction is based upon the following grounds
that:
(1)She was acting in self-defence and in defence of her property rights to stop Mrs Lackner from using her power without her consent.
(2)She did not assault Mrs Lackner because Mrs Lackner chose to remain on her property when she had several alternative options to immediately depart the property.
(3)She picked up the rock to defend herself and because she was afraid for her own safety.
(4)It was an error for Judge Hastings to find Mrs Lackner had a fear of apprehension of immediate physical contact from her.
(5)It was wrong of Judge Hastings to have convicted her of wilful damage because she did not use any stones against the vehicle at all.
[15] Even if she were properly convicted, Ms Te Whata submits that she should have the benefit of a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.
Did Judge Hastings err in his assessment of the evidence?
[16] I have carefully read the transcript of evidence, and examined the exhibits that were produced in the District Court. In my assessment, Judge Hastings did not err in his assessment of the evidence. My reasons for reaching this conclusion are:
(1)There was independent evidence of Mrs Lackner having recently been assaulted when Constable Joblin observed welt marks on her forehead a short time after Ms Te Whata is said to have thrown stones at Mrs Lackner.
(2) There was photographic evidence that suggested Ms Lackner’s
vehicle had been damaged by items such as rocks.
(3)Ms Te Whata’s suggestion that the wedging of the rock between the car’s side mirror and window was implausible is not a persuasive submission. It is quite feasible that a rock thrown with force could wedge between a side mirror and the window of a car and remain there for a considerable period of time.
(4)The injuries inflicted on Mrs Lackner, and the damage to the car were not reasonable and did not provide a foundation in the circumstances for a defence of self-defence. Similarly, the injuries to Mrs Lackner and the damage to her car was out of all proportion to Ms Te Whata’s issues over the Lackners’ use of electricity that was used to drive the water pump to the bore on the land which the Lackners leased.
[17] Ms Te Whata’s admission that she threatened Ms Lackner with a rock in her hand provided a sound evidential foundation to assist Judge Hastings when he concluded that Ms Te Whata had both assaulted Ms Lackner and wilfully damaged Ms Lackner’s vehicle. The evidence entitled Judge Hastings to reject Ms Te Whata’s claim of self-defence and that she was defending her property.
[18] In my assessment, the evidence before Judge Hastings entitled him to reach the conclusions which he reached. Accordingly, there was no miscarriage of justice.
Should Judge Hastings have considered a discharge without conviction?
[19] Under s 106(1) of the Sentencing Act 2002 a court has a discretion to discharge an offender without conviction when they have either been found guilty or pleaded guilty to an offence.
[20] Section 107 of the Sentencing Act 2002 provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[21] The correct approach to applying ss 106 and 107 of the Sentencing Act 2002 is:
(1)first, to assess the gravity of the offending. In undertaking this exercise the court should consider all of the aggravating and mitigating factors relating to the offending and the offender;
(2)second, the Court should identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence;
(3)third, the Court must ultimately decide whether it should exercise its residual discretion to grant a discharge without conviction, although it will be a rare case where a Court will refuse to grant a discharge where the offender has passed the first two thresholds in the process followed when applying ss 106 and 107 of the Sentencing Act 2002.5
[22] I will now apply this methodology to the circumstances of this case.
Gravity of the offending
[23] In my assessment, the offending in this case was at the lower end of the spectrum of criminal offending, but nevertheless it did involve a risk of harm to
Mrs Lackner and to her property.
5 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27] and Blythe v R [2011] NZCA
190, [2011] 2 NZLR 620.
Consequences of a conviction
[24] Ms Te Whata submits that she wishes to pursue a law career. She is enrolled to commence an LLB in 2014 at Victoria University of Wellington.
[25] I am, however, far from convinced that a conviction of this nature will impede Ms Te Whata’s ambitions to pursue a career in law. The fact that she was convicted and ordered to come up for sentence if called upon within six months is a strong indication that Ms Te Whata’s offending was at the lower end of the spectrum of criminal offending, and her convictions are highly unlikely to prevent her from practising law if she has the opportunity to do so in the future.
Overall assessment
[26] I am not satisfied the consequences of a conviction would be out of all proportion to the gravity of Ms Te Whata’s offending. In my assessment, this is a situation in which the sentence imposed by Judge Hastings was the very minimum that could have been imposed in the circumstances.
Conclusion
[27] Ms Te Whata’s appeal is dismissed.
[28] The convictions and sentence entered by Judge Hastings stands.
D B Collins J
Solicitors:
Crown Solicitor, Wellington for Respondent
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