MATIAHA v NEW ZEALAND POLICE [2021] NZHC 375

MATIAHA v NEW ZEALAND POLICE [2021] NZHC 375 [4 March 2021]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2020-425-31[2021] NZHC 375BETWEEN DONALD TEWHAIWHAIA MATIAHAAppellantAND NEW ZEALAND POLICERespondentHearing: 4 March 2021Appearances: T J McCullum for AppellantR W Donnelly for RespondentJudgment: 4 March 2021JUDGMENT OF MANDER JThis judgment was delivered by me on 4 March 2021 at 4 pm pursuant to Rule 11.5of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Following a judge-alone trial before Judge Brandts-Giesen, the appellant,Donald Matiaha, was convicted on one charge of intimidation.1 He was ordered topay $300 in emotional harm reparation. Mr Matiaha appeals against his convictionand sentence.[2] Mr Matiaha filed his notice of appeal one day out of time. No prejudice arisesto the respondent and, in the absence of opposition, leave to appeal out of time isgranted.Background[3] On 22 March 2020 Mr Matiaha parked his vehicle outside the Work andIncome office (WINZ) in Invercargill. Ms Jeannine Mander was employed as asecurity guard at WINZ. Because Mr Matiaha had previously caused issues at theoffice, Ms Mander was tasked with serving him with a trespass notice.[4] Ms Mander approached Mr Matiaha's car and served the notice on him throughthe window of his vehicle. She explained the notice and its general effect. Mr Matiaharesponded with abuse. He said to Ms Mander, "You are a fucking bitch" and asked ifshe knew what she was doing. Mr Matiaha then said, "I will shut the fucking placedown and be back to finish you all off", or words to that effect.[5] Ms Mander immediately went back to the WINZ office and followed theprotocol that placed the building into lockdown. Mr Matiaha left before the policearrived. He was subsequently located at his house. He denied all knowledge of theincident.District Court decision[6] After outlining the circumstances that gave rise to the charge, the Judgecanvassed the threat that had been made to Ms Mander. He noted that threats had beenmade against other Ministry offices in other parts of the country, including Ashburtonsome years ago.1 Summary Offences Act 1981, s 21(1)(a).[7] The Judge found Ms Mander to be a truthful witness and, based on herevidence, drew what he described as "the inevitable inference" that the words saidwere meant to frighten Ms Mander and were a threat to her and other staff membersin the building. The Judge concluded the words "finish them off" were a threat thatthe victims could be killed or injured if he carried out the threat. Further, that thethreat was a real one. The Judge found the charge proved beyond reasonable doubt .The appeal[8] Ms McCullum, who appeared on behalf of Mr Matiaha, submitted that amiscarriage of justice had occurred because the elements of the offence had not beenproved. Counsel contended there was no evidence that Mr Matiaha threatenedMs Mander. It was also submitted that it had not been proved that Mr Matiahaintended to frighten the security officer. Ms McCullum further argued there was noevidence that Ms Mander was frightened by anything Mr Matiaha had said, and thatthe witness's description of her reaction to Mr Matiaha's words, that she was"uncomfortable", was insufficient.Discussion[9] Section 21(1)(a) of the Summary Offences Act 1981 provides:21 Intimidation(1) Every person commits an offence who, with intent to frighten orintimidate any other person, or knowing that his or her conduct islikely to cause that other person reasonably to be frightened orintimidated,—(a) threatens to injure that other person or any member of his orher family, or to damage any of that person's property[10] Mr Matiaha was charged that: "With intent to frighten [Jeannine] Ellen Mander[he] threatened to injure that person". The elements of the offence required to beproved were:(a) That Mr Matiaha made a threat to injure Ms Mander; and(b) that the threat was made by Mr Matiaha with an intention to frightenher.[11] Whether the words and/or actions used constituted a threat to injure is to beassessed objectively.2 It is not necessary to prove that the person who uttered the threathad an intention to carry it out.3 However, the person making the threat must intendfor it to be taken seriously.4[12] The relevant parts of Ms Mander's evidence were as follows:Q. How did he respond to [the trespass notice]?A. he called me "a fucking bitch" and asked me if I felt good aboutwhat I was doing and I said, "no, I didn't"Q. So, after that conversation, what did you do?A. He then replied to me "I will fucking well shut this office down and Iwill be back to finish you all off"Q. What did you take that to mean?A. A threat to the office and the staff inside and we had clients also in theoffice so their safety and wellbeing is important.Q. How did it make you feel personally?A. Uncomfortable and sort of felt that I had to look after my guards whoall had been in and out of the outside as we do, so the office, as I say,was locked down until the police arrived and confirmed that the officewas no longer under threat.Q. So, what did you take the threat to be?A. That he was going to come in and cause problems. Well, I can't saythat I thought he was going to be violent because I don't 100% know2 Taueki v Police [2012] NZHC 3598 at [17].3 R v Adams [1999] 3 NZLR 144 (CA) at [7].4 At [7].whether he would have been or not, but I took it that staff had to bekept safe.Q. When you say "felt unsafe", what do you mean by that?A. Whether he would cause harm physically, verbally because he hasverbally abused staff in there which they have felt quite unsafe andeven clients in the office have felt that as well on previous occasions.[13] Ms McCullum then cross-examined Ms Mander, relevantly the evidencerecords:Q. He didn't [threaten] you personally, did he?A. I take it when he said "he was going to come and finish us all", thatincluded myself and the staff inside.Q. you confirmed that you did say before in your evidence that youcan't be 100% sure that he was going to be violent in any way?A. That's correct, because I did not – we did not give him the opportunity.We brought everybody inside and kept them safe.Q. you've also said that you thought the threat was to the office andthe staff inside?A. That's correct.Q. Well the sergeant asked you before what you took the threat to mean,you never said anything about you took it as a threat to yourself?A. Well, I'm a staff member inside and I class myself as a staff member.[14] I consider the words "I will fucking well shut this office down and I will beback to finish you all off", made outside the WINZ offices by Mr Matiaha constituted,at the least, a clear threat to injure, if not to kill. The threat was directed at Ms Mander.That is apparent from the words used: " I will be back to finish you all off". WhenMs Mander was asked what she took that to mean, she said, "A threat to the office andthe staff inside and we had clients also in the office ". Ms Mander rejected theassertion made in cross-examination that she had not included herself in having beenthe subject of the threat. In response to such a suggestion, Ms Mander replied, "Well,I'm a staff member inside and I class myself as a staff member". I consider the threatwas directed at Ms Mander and the District Court Judge was entitled to make thatdetermination.[15] The second element that must be proven is an intention by the utterer of thethreat to frighten the person to whom it is directed. Whether that person felt frightenedor was frightened by the threat is not an element of the charge, although the person'sreaction may be relevant to an assessment of what was intended by the person makingthe threat.5 A person's intention is to be inferred from all the facts.6 Mr Matiaha didnot give evidence to contest what I consider is a reasonable inference to be taken fromMr Matiaha threatening that he would "be back to finish you all off", that he intendedto frighten Ms Mander. I cannot, in the circumstances, apprehend any other objectivein saying such a thing.[16] The evidence was there had been previous friction between Mr Matiaha andWINZ staff, and the threat was made after he had been issued with a trespass noticepreventing him from entering the office. Ms Mander's raising of the alarm and theresulting lockdown of the office reflects the seriousness with which the threat wastaken, which in turn is indicative of the serious way in which the threat was delivered.The nature of the threat and the context in which it was uttered provided an ampleevidential basis upon which a fact-finder could conclude that it was made with theintention of frightening the person to whom it was directed. No error arises from theJudge's conclusion in that regard.[17] Ms McCullum sought to emphasise that Ms Mander only described the threatas making her fell uncomfortable, but, as already observed, the effect of the threat onthe person to whom it is made is not an element of the charge. It is the intent of theperson making the threat that is the focus. Ms Mander was made to feel uncomfortableand her subsequent actions demonstrate that the threat affected her and that she wassufficiently moved by what Mr Matiaha said to take the matter seriously.5 Farquhar v Police HC Dunedin CRI-2011-412-1, 8 April 2011; Te Wake v Police [2016] NZHC1629.6 Te Wake v Police, above n 5, at [14].[18] A further ground of appeal advanced by Mr Matiaha was that the Judge tookinto account extraneous matters in reaching his conclusion that the charge was proved.The Judge observed:[5] In light of other attacks that have been made on Ministry's offices inother parts of the country, most notoriously in Ashburton some years ago, it isunderstandable that the victim would be frightened by what was said byMr Matiaha. She went immediately back into the building and followed theprotocol that the building be locked down and the police called.[19] While the Judge's observation related to a matter of common knowledge, Iaccept it was not something that arose in the evidence and Ms Mander made nomention of these past incidents when giving her evidence. However, as alreadyobserved, whether a victim has felt frightened as a result of the threat is not an elementof the offence. It follows that the Judge's comment is of no material consequence toproof of the charge.Decision[20] I do not consider any error or irregularity has occurred that created any realrisk of affecting the outcome of the trial.7 I am satisfied that the elements of the chargewere made out on the available evidence.Sentence appeal[21] Mr Matiaha also appealed against his sentence, although no written or oralsubmissions were advanced in support it was noted by Ms McCullum that Mr Matiahahad spent some time in custody on remand. Mr Matiaha was ordered to pay reparation,which is one of the least restrictive outcomes under the Sentencing Act 2002.8 He hasprevious convictions for behaving threateningly, disorderly behaviour and criminalharassment. I agree with the observation made by counsel for the Police that MrMatiaha received a relatively lenient sentence. The order to make an emotional harmpayment of $300, to be paid at $20 per week, was neither manifestly excessive norinappropriate.7 Criminal Procedure Act, s 232(4).8 Sentencing Act 2002, s 10A(2).Result[22] The appeals against both conviction and sentence are dismissed.Solicitors:Southern Law, InvercargillCrown Solicitor, Invercargill