STANTON (AKA HONE MA HEKE) v POLICE [2017] NZHC 1939

STANTON (AKA HONE MA HEKE) v POLICE [2017] NZHC 1939 [15 August 2017]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYCRI 2017-442-10[2017] NZHC 1939BETWEEN LEWIS REGINALD STANTON (AKAHONE MA HEKE)AppellantAND NEW ZEALAND POLICERespondentHearing: 11 July 2017Counsel: A R Goodison for AppellantK B Bell for RespondentJudgment: 15 August 2017JUDGMENT OF ELLIS J[1] Mr Stanton was convicted of common assault following a defended hearing before Judge Mill on 20 March 2017.1 The only issue for the Judge was whether Mr Stanton acted in self-defence. The Judge found he did not. On 20 April, Judge Mill sentenced him to three months' imprisonment.2 He has now served that sentence.[2] Mr Stanton appeals both conviction and sentence.Conviction decisionThe facts and evidence[3] Mr Stanton has for some time been living on the street outside Farmers in the main street of Nelson, as a general form of protest against "the system". He had a1 Police v Stanton [2017] NZDC 10529.2 Police v Stanton [2017] NZDC 8232.bed and other property in boxes or spread around on the footpath. He also had some signs and placards displayed.[4] Mr Stanton's continued residence on the street is unwelcome to a number oflocal residents, some of whom have formed a protest group whose aim is to persuade the Council to evict him from the Nelson CBD.[5] On 20 November 2016, about 20 members of this group gathered at the top of Trafalgar Street and marched towards Farmers. Their plan was to protest across the road from the store. Mr Stanton was aware of this plan, as the protest had been well-publicised. But as the group approached Mr Stanton on his side of the street, they were bombarded with water balloons by supporters of Mr Stanton who were gathering nearby. This, Judge Mill said, changed the character and mood of the crowd.[6] Both the anti and pro-Stanton groups became intermingled on the Farmers side of the street, on or around Mr Stanton's property. Tension mounted. Some of the protestors tried to replace Mr Stanton's placards with their own, and these werequickly removed by Mr Stanton or his supporters. He remonstrated with the protestors, and soon became particularly focussed on the leader of the anti-Stanton group, Mr Dawson, who was well known to him. These events and what happened next, were all captured on film. The DVD footage was available to the Court.[7] Mr Dawson's evidence was that the two men were yelling at each other. Mr Stanton was saying that the deteriorating situation was all Mr Dawson's fault. Mr Dawson said he tapped a box belonging to Mr Stanton with his foot, and told him to get his stuff and get out of town. He described the tap as a "symbolic" gesture. Then, without warning, Mr Stanton punched him in the right cheek, followed by a little jab. The punch was forceful and he was hurt but not injured.[8] Two eye witnesses gave evidence:(a) Mr Thompson, a member of the protest group, said that the two men were eyeballing each other, and that Mr Stanton was upset and red inthe face. He saw Mr Stanton clench his fist and hit Mr Dawson in the face.(b) Mr Wilson had come across the street from his flat to see what was going on. He said the two men were yelling at each other and that after Mr Dawson had said "as far as this shit is concerned" while he"really booted" the box "with a couple of kicks". It was then that Mr Stanton hit Mr Dawson.[9] In his subsequent interview with Police Mr Stanton said that he was defending his property. The interviewing officer suggested he was acting in self-defence, to which Mr Stanton agreed, but he emphasised that he was defending his property, and mentioned s 52 of the Crimes Act. The Judge noted that that particular defence was not available in the present case.3[10] Mr Stanton explained that in light of Mr Dawson's vitriolic attack against Mr Stanton on social media and Mr Dawson's attitude and manner on the day, whenMr Dawson kicked the box and told him to get out of town he perceived it as a threatto himself and thought, "what will he do next?" He said that he reacted spontaneously. Given Mr Dawson's aggressiveness and everything going on around him (including his property being disrespected and interfered with) he struck out.[11] The DVD shows the two men facing each other, with their arms raised. They were within about arm's reach of each other. Mr Dawson then lowered his arm andturned away, while Mr Stanton remained with his hand raised in the air. Mr Dawson then turned back. His right shoulder was pointed at Mr Stanton but his face was turned to him. Mr Stanton was speaking loudly. Mr Dawson was listening but at the same time trying to say something. Mr Dawson extended his arm slightly and said something. Mr Stanton gesticulated, with his left arm above his shoulder. He then leaned forward and launched a punch with some force. Immediately before that,3 Counsel notes that ss 48 (self-defence and defence of another), 52 (defence of movable property against a trespasser) and 53 (defence of movable property with claim of right) are discrete provisions. Mr Stanton seems to have accepted that he did not have a defence of property available under ss 52 or 53.Mr Dawson had looked down and, like the Judge, I would infer that this was when he kicked Mr Stanton's box.[12] After the punch had been thrown the DVD shows Mr Dawson with a"delighted look on his face". He then "turn[ed] to face his supporters with his arms raised in a sign of victory." Another protestor shouted "we've got him!"[13] Subsequently there was unofficial restorative justice meeting between Mr Stanton and Mr Dawson. They shook hands. There was an article in the Nelson Mail about this. Mr Dawson apologised for the actions of one of the other protestors.The Judge's decision[14] The Judge found that although there was some threat, it was not directed at Mr Stanton's personal safety. While Mr Dawson provoked the punch, Mr Stanton'sresponse was not an act of self-defence. Rather, he held that Mr Stanton was, at that moment, the aggressor. The Judge said that any threat to Mr Stanton's personal safety was minimal and not immediate. He could have defused the situation in other ways as (the DVD showed) he had been encouraged to do earlier. Self-defence was disproved.Sentencing decision[15] After reciting the facts Judge Mill noted Mr Stanton's previous convictions for assault in 2011 and 2012, one of which was also an assault in Trafalgar Street. On both occasions, he was sentenced to two months' imprisonment.[16] Mr Stanton's lawyer submitted that the appropriate sentence would be tocome up if called upon, or a discharge, because he had already spent time in custody prior to being release on bail. But the Judge noted that Mr Stanton would not comply with any community sentence, because to do so would be contrary to his protest against the system. An electronic sentence was also not possible because Mr Stanton chooses to live on the street.[17] The Judge found that the only option was imprisonment. He said that four months would be appropriate, but he gave a one month credit because of Mr Dawson's provocation. Mr Stanton was sentenced to three months'imprisonment.The conviction appeal[18] The only issue in the conviction appeal is whether the Judge was wrong to reject the defence of self-defence.[19] That defence requires consideration of:(a) the circumstances as the defendant believed them to be;(b) whether, in light of those circumstances, the defendant used force in order to defend himself; and(c) if so, was the force used reasonable in those circumstances?[20] Once a credible evidential foundation is established for self-defence, it is for the prosecutor to disprove self-defence beyond reasonable doubt. The Court needs to establish what belief was genuinely held by the defendant at the relevant time as to the circumstances. This is not a matter of just accepting at face value what the defendant says; rather it requires an assessment of all the evidence and of thedefendant's credibility.The circumstances as Mr Stanton believed them to be[21] Ms Goodison submitted that Mr Stanton perceived his physical safety as being under threat because:(a) the protest was directed at Mr Stanton personally;(b) Mr Stanton knew that Mr Dawson runs a Facebook page dedicated to his campaign to remove Mr Stanton from the Nelson CBD;(c) there was limited or no police presence at the protest;(d) Mr Stanton had thought the protesters would be across the road, and was not prepared for closer confrontation;(e) his possessions were being trampled;(f) Mr Stanton had not invited any of his own supporters and so did not know which of the protestors were on his side and which were not;(g) he had suffered attacks in the past which had made him"hypersensitive".4[22] Ms Goodison also submitted that the Judge failed to give appropriate weight to the strength of the kick which preceded the assault (Mr Wilson's evidence thatMr Dawson "really booted [the box]") and placed too much weight on what he saw on the DVD (which did not show the kick) when determining Mr Stanton'sappreciation of the circumstances.[23] But I agree with the Judge that the evidence strongly suggests that Mr Stanton believed that there was a threat to his property, not his personal safety. Mr Stanton himself accepted as much when he spoke to the Police. Prior to thepunch, Mr Dawson's hands were at his side and did not appear to be presenting any physical threat to Mr Stanton personally.In light of those circumstances, did Mr Stanton punch Mr Dawson in order to defend himself?[24] I accept Ms Goodison's submission that self-defence is not rendered unavailable just because Mr Stanton had been provoked and was angry,5 or because the punch could be described as pre-emptive.6 I do not accept, however, theproposition that there is any useful analogy to be drawn with "battered woman"4 In reliance on Press v R [2013] EWCA Crim 1849 at [38] where the defendant, who had PTSD,was "hypersensitive to threatening situations", a fact that was "plainly relevant" to his genuinebelief that he was under threat.5 Relying on R v Howard (2003) 20 CRNZ 319 (CA).6 R v Savage [1991] 3 NZLR 155 (CA).syndrome, where women attack their abusers in the absence of any obvious immediate threat. I am unable to accept that submission. Even if the analogy were apt (which I do not think it is) Ms Goodison did not refer me to any case where self-defence has successfully been run where the threat of physical harm was not immediate. Any such case would result, at best, in a discount at sentencing.[25] In any event, it seems to me that my conclusion as to the circumstances as Mr Stanton believed them makes it logically impossible to find that he punched Mr Dawson in order to defend himself. If he did not believe his physical safety was under threat then he cannot have acted in self defence.[26] Like the Judge, I accept entirely that Mr Dawson deliberately provoked or baited Mr Stanton. That seems to me to be quite inexcusable. But there is a distinction, being provocation and a threat to safety. In my view the Judge correctly held that the punch was delivered out of retaliation and frustration, not fear. It was Mr Stanton not Mr Dawson who was the "aggressor" at the relevant time.Was the force used reasonable in the circumstances?[27] In light of my conclusion on the second factor it is not necessary to consider the third. For completeness, however, I record my view that it would be difficult to conclude that the punch to the head was a proportionate or reasonable response towhat had occurred. Given there was no immediate physical threat to Mr Stanton'sperson, it was not reasonable to punch Mr Dawson.The sentence appeal[28] As noted at the outset Mr Stanton has now served his sentence. The issues raised by this aspect of his appeal are effectively moot and in my view it is neither useful nor appropriate to determine them.[29] For completeness, however, I record that in any ordinary case I would have been inclined to regard the sentence of imprisonment as not being the least restrictive option here. As I have said, Mr Dawson's deliberate provocation of Mr Stanton wasinexcusable. But nor would I have considered that an order to come up for sentence if called upon would have been appropriate, in light of Mr Stanton's history.[30] Once that point is reached, the difficulty is that Mr Stanton's personal choiceshave effectively tied a sentencing judge's hands. It is not disputed that he would not comply with a community based sentence and would not pay any fine imposed. He has no address from which to serve a community-based sentence. Imprisonment was the only option.[31] Although Ms Goodison submitted that three months' imprisonment was nonetheless too high, the charge carries a maximum of 12 months' imprisonment. Inlight of Mr Stanton's previous convictions, three months was within the available range.Result[32] The appeals against conviction and sentence are dismissed accordingly.__________________________Rebecca Ellis J