Tumarae v The Queen - [2015] NZHC 1477

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000018 [2015] NZHC 1477

BETWEEN
ERROL TE AROHA TUMARAE

Appellant

AND

THE QUEEN Respondent

Hearing: 29 June 2015

Appearances:

P N Ross for Appellant
M Mitchell for the Respondent

Judgment:

29 June 2015

(ORAL) JUDGMENT OF ANDREWS J

TUMARAE v THE QUEEN [2015] NZHC 1477 [29 June 2015]

Introduction

[1] Mr Tumarae was convicted in the Napier District Court on 22 October 2014 after pleading guilty to a charge of intimidation under s 21(1)(e) of the Summary Offences Act 1981 and sentenced to 250 hours of community work. He has applied for an extension of time to appeal against his sentence.

Facts

[2] On 1 September 2014, Mr Russell Tully shot and killed two staff members at a WINZ office in Ashburton and shot at two other staff members, seriously injuring one of them.

[3] The following day, 2 September 2014, Mr Tumarae went to the WINZ office in Napier wearing a jacket with a hood over his head. Once inside the building he stood in a queue with five other people. A security guard approached him and asked him to remove the hood, but he refused. The local WINZ manager then asked him to remove the hood and he responded by saying, “who the fuck are you” and swearing and verbally abusing her.

[4] The manager then asked Mr Tumarae if she could take his papers for him and asked him to move out into the foyer as his behaviour was upsetting other staff and people waiting in the queue. Mr Tumarae walked out into the foyer but then suddenly rushed back towards the manager, stopping just short of her. She feared he was going to assault her but he swore some more and again turned to walk away. However, Mr Tumarae again rushed back at the manager and said, “No wonder you guys get shot at” and “I might as well do it myself”.

[5] Mr Tumarae then left the building. He was apprehended outside and arrested.

The District Court judgment

[6] The Judge’s decision was brief and can be set out in full:1

[1] I cannot stress enough, Mr Tumarae, how serious the community considers this to be. I am not joking. It is really taken very seriously by the police, by the Court, by WINZ. It is so terrifying for people being on the other end of something like this and there will be a section of the public out there that would be expecting someone like me to jail you for that sort of thing. Well, whether you are fine with it or not I am going to give you a chance and give you a lot of community work, but you do anything like this again and you will be straight inside.

[2] You are convicted and sentenced to250 hours of community work. It reflects the seriousness of this offending, in my view, and you are lucky to get that. That is my opinion and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tumarae v The Queen

Details

AGLC: Tumarae v The Queen [2015] NZHC 1477
Case: [2015] NZHC 1477
Decision Date: 29 June 2015

CaseChat Overview and Summary

Errol Te Aroha Tumarae was convicted in the Napier District Court of a charge of intimidation under s 21(1)(e) of the Summary Offences Act 1981 and sentenced to 250 hours of community work. He applied for an extension of time to appeal against his sentence. The appeal was filed late, as a result of an error by counsel. The appellant submitted that the delay, although extensive, was not inordinate and that the respondent would not be prejudiced by an extension of time being given. The respondent did not oppose the extension of time, other than on the merits of the appeal.

The appellant submitted that there is a tension between offences such as that of intimidation and the rights of freedom of speech and freedom of association set out in the New Zealand Bill of Rights Act 1990. He submitted that in the present case, while they were unwelcome and unpleasant for the victim, both the comments made by Mr Tumarae and his gestures were forms of expression. The appellant submitted that the comments were gratuitous and offensive and followed after the offence of intimidation was completed by his lunging at the manager. The appellant submitted that it would be wrong to visit a higher penalty than was justified by the offending by virtue of the terrible tragedy of the previous day. The appellant submitted that a sentence of 100 hours community work would have been appropriate even taking into account Mr Tumarae's significant history of previous similar offending. The respondent submitted that the sentence of 250 hours was appropriate for the offending which fell at the higher end of the scale. The respondent submitted that the Bill of Rights Act considerations had no bearing in this case. The respondent submitted that Mr Tumarae’s conduct is not protected by the Act as there is no protective right to deliberately frighten or intimidate people. The respondent submitted that the comments made by Mr Tumarae were significant in their timing, and an integral part of the offending which elevated its seriousness.

The Court held that the appellant was not making a protected expression, he was not making a legitimate protest, he was being threatening and intimidating. The Court held that the Bill of Rights Act considerations had no bearing in this case. The Court held that the appellant’s offending involved two separate instances of rushing or lunging at the WINZ manager, and two instances of verbally abusing her, one of which was the reference to the killing the previous day. The Court held that the fact that the appellant made the comment about the previous day’s killing, in which two WINZ officers had been killed and two others shot at and injured, made that comment particularly and severely intimidating to the victim in this case – another WINZ manager. The Court held that the appellant has an extensive history of convictions for threatening and offensive behaviour dating back to 2001, with 12 separate convictions. Previous sentences have not deterred the appellant from further offending, so a deterrent sentence was required. The Court held that while the sentence was undoubtedly stern, and was at, or near, the top of the range that is available for this sort of offending, it was not persuaded that the sentence that was imposed was so outside the available range as to be manifestly excessive.

The Court dismissed the appeal against sentence. The Court granted an extension of time for the appeal to be brought.

Orders