HALLETT v NEW ZEALAND POLICE [2020] NZHC 3472

HALLETT v NEW ZEALAND POLICE [2020] NZHC 3472 [21 December 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-110[2020] NZHC 3472BETWEEN PETER HALLETTAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2020Appearances: The Appellant in personG Banuelos for CrownJudgment: 21 December 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 21 December 2020 at 3.30 pmRegistrar/Deputy RegistrarDate:[1] The appellant, Peter Hallett, has appealed a decision of Judge M A MacKenziein the District Court at Taupo. Judge MacKenzie found Mr Hallett guilty of twocharges of unlawful hunting and two charges of wilful trespass1 and sentenced him to300 hours community work.2[2] Although the appeal filed by Mr Hallett was filed as an appeal against sentence,following discussion with Mr Hallett it is clear that his primary concern was in facthis conviction disputing that he had been either trespassing or hunting, whilemaintaining that the sentence was too harsh. In the circumstances I have treatedMr Hallett's appeal as both an appeal against conviction and sentence.Background[3] On 14 March 2019 Mr Hallett was trespassed from both the Lake Taupo forestand the Rotoaira forest for a period of two years. Both forests are involved incommercial forestry operations and operate under a permit system whereby a huntingpermit can be obtained to access the forest during proscribed hours.[4] Despite being trespassed, on 30 March 2019 Mr Hallett, together with anassociate (Mr Kemp), arrived in a vehicle at the Rotoaira forest at 1.00 am. The forestsecurity officer requested their permits be produced and was told they had "a tangatawhenua permit". The Police were called and Mr Hallett failed to produce a permit tothe Police Officer. Two firearms were observed in the vehicle and Mr Hallet made acomment that it "was always a good night for filling up the cupboard".[5] Again, despite being trespassed, on 11 April 2019 Mr Hallett, together with anassociate, went to the Lake Taupo forest at approximately 7:20 pm. One was drivingthe vehicle and the other was on the roof. The pair were stopped by a security officerwho recognised Mr Hallett. Mr Hallett informed security he was going to continue tohunt anyway.1 Police v Hallett [2020] NZDC 5645 ("the Conviction decision").2 Police v Hallett [2020] NZDC 15900 ("the Sentence decision").The Conviction decision[6] In finding Mr Hallett guilty on the two hunting charges, Judge MacKenziebegan by setting out s 8 of the Wild Animal Control Act 1977, which she noted madeit an offence for a person to hunt across any land, without the express authority of theowner or occupier.3 Having then noted the meaning of the different terms in thesection, including hunt or kill, Judge MacKenzie turned to s 38 of the Act which setout a presumption with regard to the hunting or killing of wild animals.4 As herHonour noted, this section provides that where a person is found in an area where wildanimals are usually present, and that person had with them or under their control anyfirearm or vehicle, and in the case of the vehicle it was adapted or equipped as to becapable of being used for the hunting or killing of any wild animal, the Court mustpresume that the person was hunting or killing wild animals in the area.[7] At that point Judge MacKenzie considered whether Mr Hallett was on the landwithout the express authority of the owner or occupier and in doing so noted that thelands involved, Lake Taupo forest and Lake Rotoaira forest, were managed by trustson behalf of the owners pursuant to Te Ture Whenua Māori Act 1993.5 After reviewingthe evidence available which included details of the access policies developed overboth forests as well as the fact that Mr Hallett is an owner of both forests. Havingconsidered these matters Judge MacKenzie concluded:6In summary, I am satisfied that the Lake Taupo Forest Trust and the LakeRotoaira Forest Trust are the owners of the land. As the definition section ofthe Act notes, land is defined as land of any tenure. The uncontrovertedevidence of the Chairs of the two trusts, Mr Ellis and Mr Smith, is that thetrustees are the owners of the land. Although I cannot say definitively thatEriwata applies,7 the statement of general principle at paragraph [8] ofEriwata is helpful and relevant. That is to say, when legal ownership is vestedin trustees, it is for them to control the land and they have a power to permitoccupation.Therefore, Mr Hallett's beneficial interest in the land as an owner cannotoverride the powers of the trustees of the Lake Taupo and Lake Rotoaira ForestTrusts. This is because I accept the evidence of Mr Ellis and Mr Smith that3 Conviction decision at [19].4 At [27].5 At [35].6 At [57]-[59].7 Because the evidence did not reveal whether they are Ahu Whenua trusts. If so, Eriwata wouldbe a complete answer, even though it was decided in a different context and in relation to aninjunction under TTWMA.the trustees have the right to make the decisions about the land as owners,including the right to make decisions about the land. As I have said, theirevidence is congruent with general law applicable to the operation of trusts.For the sake of completeness, I also consider that the combined weight of theevidence also would suggest that NZFM meets the definition of an "occupier"as set out in s 2 and bearing in mind Smith v Nolan. I appreciate this was notthe primary focus of the prosecution case, but the evidence shows that NZFMare contracted to manage the commercial forestry operations of the LakeTaupo and Lake Rotoaira Forests by the respective forest trusts, including themanagement and implementation of the access policy for both forests. Assuch, I assess NZFM has a right to occupy the forests given the contractualarrangements s to manage the forests on a day to day basis.(citation included)[8] Judge MacKenzie concluded that Mr Hallett did not have express authorityfrom the owners and occupiers to hunt on the land.8[9] Judge MacKenzie then turned to consider the two specific incidents for whichMr Hallett had been charged, namely 30 March 2019 and 11 April 2019.[10] In relation to the 30 March 2019 incident Judge MacKenzie concluded that thepresumption under s 38(1) of the Wild Animal Control Act applied, and in the absenceof any evidence called by Mr Hallett concluded that Mr Hallett was guilty of unlawfulhunting.9[11] In relation to the second incident on 11 April 2019, Judge MacKenzie notedthe presumption in s 38 did not apply because there was no evidence before the Courtthat Mr Hallett had a firearm with him but she was nonetheless satisfied that Mr Hallettwas hunting, noting that there was no dispute that Mr Hallett was in the Lake Taupoforest on 11 April 2019 without the express authority of the owner or occupier and, byhis own admission to the security officer in the forest, he was hunting.10[12] With regard to the trespass charges Judge MacKenzie, based on the evidenceprovided by the Lake Taupo and Lake Rotoaira forests that it was reasonable to issuetrespass notices, was satisfied that Mr Hallett had been warned to stay off the Lake8 At [67].9 At [82].10 At [95].Taupo and Lake Rotoaira forests when served with a trespass notice on 14 March 2019and was subsequently found on the properties on 30 March 2019 and 11 April 2019.Given that position Judge MacKenzie concluded with reference to the cases that MrHallett wilfully trespassed on both 30 March 2019 and 11 April 2019 on the basis thathe was deliberately in those forests on those dates when he knew that access permitsissued by the forest trusts were required.11The Sentence decision[13] In sentencing Mr Hallett Judge MacKenzie noted there is no tariff case forunlawful hunting or wilful trespass, and that the sentencing would need to bedetermined on a first principles basis, looking at the aggravating and mitigatingfeatures of the offending.12 Her Honour was of the view that Mr Hallett was theprincipal offender, and Mr Kemp played a lesser role.13[14] For the purposes of denunciation and deterrence the prosecution sought a "stiffcommunity-based sentence", either a substantial amount of community work or a termof community detention.14 At the hearing Mr Hallett raised the issue of "sovereignty",however, her Honour simply noted that in a prior minute she had already informedMr Hallett "the Courts must obey the laws of Parliament" and that "any challenge tothe Court's jurisdictionmust fail".15 Her Honour then recorded the various othermatters raised by Mr Hallett, including, among others that:(a) he would like to have his consent to gather kai recognised by the Court;(b) he is a rangatira and a living being;(c) he cannot accept anything that will force him to bend to New Zealand'slaws;(d) the common law was not upheld by the Court; and11 At [130].12 The Sentencing decision at [13].13 At [14] – [15].14 At [16] – [17].15 At [18](b).(e) the sentence will put systemic pressure on his whānau and hapu.[15] In assessing the appropriate sentence Judge MacKenzie noted this must bedetermined in light of the fact that the maximum penalty for unlawful hunting hadbeen increased to a $100,000 fine, a factor that indicated Parliament had intendedgreater deterrence, which as a result, was a "major sentencing consideration".16Judge MacKenzie referred to Parnwell v Police, the first sentencing decisionfollowing the increase in penalty, where a starting point of 400 hours community workhad been adopted for moderately serious offending.17 Although noting Mr Hallett'soffending was different from that in Parnwell, Judge MacKenzie was of the view thatas Mr Hallett went into the forests on two separate occasions, trespassing without apermit and in breach of the access policies, this offending was also moderately serious.Accordingly, her Honour adopted a starting point of 300 hours community work, inline with Parnwell v Police.18[16] As Judge MacKenzie identified no aggravating or mitigating factors relevantto Mr Hallett the end sentence was 300 hours community work.The appeal[17] The notice of appeal filed with the Court is of limited assistance specifying theground of appeal only as: "Regarding the circumstances which the trespass notice wasissued the continuation of the sentence is no longer necessary in the interest of thecommunity or appellant".[18] Instead, as noted, at the hearing of the appeal Mr Hallett focused on theconviction decision, suggesting that he had been appropriately authorised by thetrustees of the local marae, and/or considered he was lawfully on the forests and/or nothunting.16 At [22].17 Parnwell v Police [2015] NZHC 1214.18 The Sentencing decision at [25].[19] In relation to the sentence decision Mr Hallett argued that Judge MacKenziewas wrong to rely on the decision of Parnwell v Police in sentencing Mr Hallett onthe basis that the offending in that case was considerably more serious.Discussion[20] Mr Hallett's appeal is governed by the Criminal Procedure Act 2011 ("CPA").Section 229(1) of the CPA allows a person to appeal against their conviction to theHigh Court with s 232 providing that an appeal against conviction must be allowed ifin the case of a Judge alone trial the trial Judge erred in his or her assessment of theevidence to such an extent a miscarriage of justice has occurred or a miscarriage ofjustice has occurred for any other reason. In any other case the appeal has to bedismissed. Likewise, s 250(2) of the CPA provides that a Court must allow an appealagainst sentence if satisfied that for any reason, there is an error in the sentenceimposed, and a different sentence should be imposed. In any other case, the Courtmust dismiss his appeal.19[21] Turning first to consider Mr Hallett's appeal against conviction, as I discussedwith him at the hearing of the appeal, the fundamental problem is that because hechose not to give evidence or otherwise call evidence to challenge the evidence calledby the prosecution with regard to the ownership and administration of the land and orwhat occurred at the time of each incident, there is no basis to now revisit theconclusions reached by Judge MacKenzie. It is clear that Judge MacKenzie wentthrough the evidence carefully in reaching her conclusions and no issue has been takenwith her legal analysis of any of the issues. As a result, there is no basis upon whichMr Hallett's appeal against conviction can succeed.[22] In relation to the sentencing appeal, as Mr Hallett noted, Judge MacKenzieadopted a starting point of 300 hours community work by way of comparison toParnwell v Police as the only other decision since the increase in penalties for unlawfulhunting. In that case the appellants had entered private land with hunting dogs and asubstantial amount of hunting equipment. Upon arriving at the property, theyconcealed their vehicle number plate with tape and cut through the locked gate to19 Section 250(3).access the forest. The appellants were in the forest for about five hours but did not killany animals. The starting point of 400 hours community work was imposed, this beingthe maximum available.[23] Having considered Parnwell against Mr Hallett's offending I am satisfied thatthe offending in that case was substantially more serious. Although Mr Hallett'soffending involved two separate incidents of unlawful hunting it did not involve anyforced entry or any attempt to conceal his vehicle, still less was there any wilfuldamage. Moreover, there is no dispute that notwithstanding he had been trespassedfrom the forest a permit could have easily been obtained by Mr Hallett which wouldhave enabled him to have carried out the hunting lawfully. Given the difference incircumstances I am satisfied that a sentence of 150 hours community work would havebeen more appropriate. As this is 50 per cent of the sentence imposed, I am satisfiedthat Mr Hallett's sentence was in the circumstances, manifestly excessive and as aresult the sentence appeal should be allowed.Decision[24] The appeal against conviction is dismissed.[25] The appeal against sentence is allowed. The sentence of 300 hours communitywork is quashed and a sentence of 150 hours community work imposed in its place._______________________________Powell J