KANAPU v NEW ZEALAND POLICE [2016] NZHC 143

KANAPU v NEW ZEALAND POLICE [2016] NZHC 143 [12 February 2016]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2015-488-39[2016] NZHC 143MARSHALL MAIHI KANAPUvNEW ZEALAND POLICEHearing: 3 February 2016Appearances: Mr Kanapu in personM A Jarman-Taylor and J W Wall for the RespondentJudgment: 12 February 2016JUDGMENT OF THOMAS JThis judgment was delivered by me on 12 February 2016 at 3.00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Solicitors:Marsden Woods Inskip & Smith, Whangarei.Introduction[1] Mr Marshall Kanapu has been convicted and sentenced on one charge of possession of cannabis for the purpose of supply, under s 6(1)(f) of the Misuse of Drugs Act 1975.1 He now appeals his conviction and sentence on the grounds that the Court had no jurisdiction over him as tangata whenua.Factual background[2] Mr Kanapu does not challenge the factual basis of his conviction.[3] The Police arrived at Mr Kanapu's address, and, when they searched it, they found a quantity of cannabis and some pre-cut tinfoil. The Crown submissions record that what was found consisted of more than 20 cannabis tinnies and over 40 grams of loose cannabis head. Tinfoil, ziplock plastic bags and a tick list were also discovered.[4] A hearing was conducted before Judge Harvey on 25 March 2015. Mr Kanapu appeared, self-represented, to defend the charge. He explained that hesought to defend the charge on the basis of "a stipulation for rightful jurisdiction",claiming that the Court had no jurisdiction over him. Judge Harvey explained that he could not accept arguments based on sovereignty. Mr Kanapu did not give or challenge any evidence.[5] On 7 July 2015, Mr Kanapu appeared before Judge Harvey for sentencing.Judge Harvey imposed a sentence of six months' home detention, and 250 hours of community work. That sentence was cumulative on a six months' home detentionsentence which had already been imposed on Mr Kanapu for unrelated domestic violence charges. These were Mr Kanapu's first incidents of offending since 1988.1 The maximum sentence for possession of a class C drug for the purpose of supply is 8 years imprisonment.[6] Mr Kanapu filed his appeal out of time, on 23 October 2015. He explained that the delay was as a result of his home detention sentence which "destructed thepursuit of this information and obtaining as well".Appellant's submissions[7] No written submissions were received from the appellant. He continued torely on a "Memorandus for Jurisdiction" dated 21 October 2014 althoughemphasised in his oral submissions what he considered to be the breach by theCrown of its partnership obligations to Māori.[8] Mr Kanapu essentially claimed that the Court has never had jurisdiction over tangata whenua of New Zealand. Any statutes purporting to do so areunconstitutional, and void ab initio, meaning Māori are only subject to Māori law, hesaid.Respondent's submissions[9] The Crown submitted that leave should not be granted to allow the appeal out of time, as there has been no application for leave, no explanation for the delay and the appeal is without merit.[10] In any event, the Crown submitted that there was no basis to challenge theCourt's sovereignty to enforce criminal law, and that it was clear that the Court hadjurisdiction to hear the charge.[11] The Crown submitted that the sentence was not manifestly excessive and was in fact relatively generous given the quantity of cannabis in Mr Kanapu's possession.The Crown submitted that the appellant was clearly involved in a small scale commercial operation, and could have been subject to a starting point of between two and two and a half years following R v Terewi.22 R v Terewi [1999] 3 NZLR 62 (CA).Appeal against conviction[12] Section 229 of the Criminal Procedure Act 2011 (CPA) sets out a person'sright to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge alone trial.[13] Under s 232, the High Court can allow an appeal from a Judge alone trialonly if it is satisfied that the District Court Judge "erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred", or that "amiscarriage of justice has occurred for any reason":232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for any reason.(3) The first appeal court must dismiss a first appeal under this subpart in any other case.(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.[14] As s 232 makes clear, not every "error or irregularity" causes a miscarriage ofjustice.3 The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b).[15] Unfairness does not necessarily give rise to a nullity;4 there has to be some fundamental procedural error. Examples of such a fundamental error include: a conviction where a court lacks jurisdiction,5 or the charge failing to disclose a criminal offence.6Leave to appeal[16] The Court has the discretion to grant leave to appeal out of time under s 231(3) of the CPA. R v Slavich sets out the test for whether to grant leave to appeal out of time: "Firstly, why was the appeal filed late? Secondly, what, if any, merit does the prospective appeal appear to have?"7[17] No substantive reason other than the defendant being on home detention has been offered for why the appeal was so late. In any event, I must outline the major problems with the appeal in the same way whether I allow leave to appeal or simply deal with the leave point.Te Reo Māori[18] Part way through his oral submissions, Mr Kanapu applied for the hearing to be conducted in Te Reo Māori. No prior notice had been given to the Court of thisdesire. Mr Kanapu then sought an adjournment so that the Court could arrange foran interpreter and the appeal could be heard in Te Reo Māori.[19] Mr Kanapu's appeal was filed in September 2015. It was originally to beheard in December 2015 but then adjourned to February 2016. Mr Kanapu did not seek to have the District Court proceedings conducted in Te Reo Māori.3 "A miscarriage is more than an inconsequential or immaterial mistake or irregularity": Matenga v R [2009] NZSC 18 at [30].4 Jago v The District Court of New South Wales (1989) 168 CLR 23 (HCA) at 57 per Deane J, cited by the Supreme Court in Condon v R, above n 4, at [77].5 R v O (No 2) [1999] 1 NZLR 326 (CA).6 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338.7 R v Slavich [2008] NZCA 116 at [14].[20] While I recognise the right to be heard in Te Reo Māori, an interpreter will berequired. Practicalities dictate that the Court must have prior notice of that. Therewas no such notice in this case, despite the appeal having been filed in October. Iconsidered whether there would be any prejudice to Mr Kanapu if the proceedingwere not adjourned and conducted only in English. I was satisfied that Mr Kanapuspoke good English as witnessed by the notes of the hearing of the District Court andhis exchanges with me at the appeal hearing. Mr Kanapu did not submit that he wasprejudiced in the presentation of his appeal, if it were not conducted in Te ReoMāori. For those reasons, I refused the request for the adjournment.8Analysis[21] It is well-established that New Zealand Courts have jurisdiction over all people in New Zealand who have committed crimes. Further, the Courts are bound constitutionally and legally to uphold and follow the laws passed by the New Zealand Parliament. In R v Mitchell, the Court of Appeal observed:9This Court has made it plain on a number of occasions now that arguments that are based upon an assertion that the Parliament of New Zealand was not authorised to make law affecting some or all of the persons living in New Zealand cannot succeed before it. Our courts are bound to accept the validityof Acts of Parliament [a litigant] is not entitled to put himself outside the law of New Zealand.[22] There is no basis on which the common law or customary law can supersedeparliamentary laws, although tikanga Māori can be a factor in interpreting laws insome instances.[23] Further, the New Zealand Parliament has the authority to make legislation. The Crown established sovereignty over New Zealand through the proclamations approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London Gazette on 2 October 1840.10 Consequently, the legislation8 Criminal Procedure Rules 2012, r 1.9(5): a court has the discretion to determine whether an adjournment is appropriate or not, where no prior application has been made for an English-Māori interpreter ("Failure to serve or give notice in accordance with this rule does not prevent aperson from speaking Māori or using New Zealand Sign Language in a proceeding, but theproceeding may be adjourned for the purpose of arranging for a competent interpreter to be present.")9 R v Mitchell CA68/04, 23 August 2004 at [14].10 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 at 690. Affirmed in Berkettcreated by the New Zealand Parliament is binding on all persons within New Zealand, no matter their nationality.11[24] Mr Kanapu also raised arguments about the application of the Te TureWhenua Māori Act 1993. As the Court of Appeal explained in R v Miru12:The long title to the Te Ture Whenua Māori Act states it to be:An Act to reform the laws relating to Māori land in accordance with the principles set out in the Preamble to this Act.The preamble records the desirability of recognising that land is a taonga tuku iho of special significance to Māori people, and of promoting retention of Māori ownership of land. There is nothing in that statement of the Act's purpose in its long title, nor in the Preamble to the Act, which suggests it is intended to provide a means for the enforcement of the criminal law. The provisions in Part XIII of the Act for Māoriincorporations are concerned with providing for incorporation as a mechanism for multiple ownership of land. Sections 253 and 253A of the 1993 Act make provision for capacity, powers and the constitution of incorporations only in that context. Mr Miru's submission to us that the 1993 Act provides a means for recognition of a separate justice system for Māoripeople is completely at odds with the important scheme and purpose of that Act and accordingly must fail.(emphasis added)[25] Williams J made similar observations in Miru in the High Court, in rejecting an application that the trial be heard on a marae:13The principal difficulty is that the Te Ture Whenua Māori, Māori Land Act 1993 is principally concerned with confirming the existence of the MāoriLand Court and the way in which the proceedings of that Court and other bodies, such as Māori incorporations, may operate in respect of Māori land. There is no express power in the Act for the Māori Land Court or for Kaporeihana to exercise criminal jurisdiction in relation to any offences.[26] The Te Ture Whenua Māori Land Act is therefore no barrier to jurisdiction either.v Tauranga District Court [1992] 3 NZLR 206 at 212-213.11 Warren v Police HC Hamilton AP 133/99, 9 February 2000 at [39].12 R v Miru CA65/01 26 July 2001 at [7].13 R v Miru HC Auckland T992580, 26 April 2000.[27] Mr Kanapu also cited the case of Tamaki v Baker.14 That case dealt with the validity of native title to land, which is not relevant to the present case about the application of the Misuse of Drugs Act. Regardless, as stated recently in Matahaere v Police, while that case did hold that the Courts had jurisdiction to investigate native title, it also found that customary rights could not be enforced until or unless confirmed by statute by New Zealand Parliament.15 In response to that case Parliament enacted the Land Title Protection Act 1902.[28] Although Mr Kanapu at the hearing relied on the partnership between Māoriand the Crown, the same considerations as those set out above apply.[29] There is no basis for Mr Kanapu's claim that the District Court did not havejurisdiction over him to hear the charge against him, or that the Crown's partnership with Māori means he cannot be prosecuted. The District Court Judge thoroughlyexplained to him the effect of his decision not to challenge the evidence presented, and offered numerous opportunities to challenge the substantive underlying legal issue, of whether the cannabis with which Mr Kanapu was found was indeed for the purpose of supply. Correspondingly, there is no basis for an appeal on these grounds.Appeal against sentence[30] Section 250(2) of the CPA states that the Court must allow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[31] In any other case, the Court must dismiss the appeal.1614 Tamaki v Baker (1900-1901) [1840-1932] NZPCC 371.15 Matahaere v Police [2012] NZHC 2436.16 Criminal Procedure Act 2011, s 250(3).[32] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.17 Further, despite s 250 making no expressreference to "manifestly excessive", this principle is "well-engrained" in the court'sapproach to sentence appeals.18[33] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:19(a) There must be an error vitiating the lower Court's original sentencing discretion: the appeal must proceed on an "error principle."(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.[34] The High Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.20Analysis[35] Mr Kanapu was charged with possession of cannabis for the purpose of supply. That offence can be compared to the guideline judgment of R v Terewi.21Terewi divides cannabis offending into the following categories:Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].18 At [33], [35].19 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].20 Ripia v R [2011] NZCA 101 at [15].21 R v Terewi [1999] 3 NZLR 62 (CA).more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s 6(1)(e) and (1).)Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between 2 and 4 years but where sales are infrequent and of very limited extent a lower starting point may be justified.Category 3 is the most serious class of such offending. It involves large- scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be 4 years or more.[36] Although Terewi focuses on cannabis cultivation the Court of Appeal in R v Keefe held that it was applicable to possession of cannabis for supply.22[37] There is very little evidence of the extent of the offending in this case. It appears this was a very low-level commercial operation. The scale of this operationappears to have been relatively small, with 20 cannabis "tinnies" and 40 grams ofcannabis head recovered.[38] In R v A'A, 88.3 grams of cannabis was found wrapped in tinfoil "tinnies" in the offender's van, as well as $39,722.50 in cash, snaplock bags, tinfoil and electronic scales. Brewer J saw the offending as within category 2 of R v Terewi, andimposed a starting point of two years' six months.23[39] The offending in that case was clearly more commercial than this one. A lower starting point would be appropriate in this case. However, the very bottom ofTerewi category two is two years. Given that Mr Kanapu would not be entitled to any discounts for a guilty plea, and there appear to be very few mitigating factors, the six month home detention sentence could be considered generous.[40] In R v Awa, the offender pleaded guilty to possession of cannabis for supply where twenty-six tinnies and 26 grams of cannabis were discovered.24 The Court held that the offending was part of a fairly low-scale enterprise of supplying22 R v Keefe CA275/02, 20 November 2005.23 R v A'A HC Auckland CRI-2010-092-9128, 8 October 2010.24 R v Awa HC Auckland CRI 2007-035-0021, 17 February 2009.cannabis and that category two of Terewi applied. A starting point of 2 years'imprisonment was adopted which, after mitigating factors were taken into account,was reduced to 14 months' imprisonment. The final sentence (described by the Judge as lenient) was eight months' home detention.[41] Similarly in R v Croft, a two year starting point was reduced to a ninemonths' home detention sentence.25 The offender had sold an undercover police officer a tinny for $20 on three occasions. Rodney Hansen J said:26The circumstances of this case, which establish only intermittent sales over quite a lengthy period, support a finding only of relatively low level dealing. There are no indications of significant sums of money being involved. I infer that you dealt at a level which, as you say, would enable you to meet your own needs and provide support for your son. On that basis, I consider a starting point of two years imprisonment adequately reflects your culpability.[42] From the starting point of two years' imprisonment, a sentence of ninemonths home detention was imposed. This indicates that home detention for low- level band two Terewi offending can be appropriate. However, it also shows that even at the lowest of commercial operations, a two year starting point is typically applied.[43] In this case, the offending was clearly at the lower end of Terewi, although not as low as Croft. A six month home detention sentence, in the absence of a guilty plea or other mitigating factors, is relatively lenient and cannot be considered excessive.Result[44] For these reasons, the appeal against conviction and sentence is dismissed._______________________Thomas J25 R v Croft [2012] NZHC 3010.26 R v Croft [2012] NZHC 3010.