R v Taueki DC Palmerston North CRI-2010-031-1588 [2011] NZDC 740 (25 May 2011)

Last Updated: 3 January 2020

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2010-031-001588

THE QUEEN

v

PHILLIP DEAN TAUEKI

Hearing: 25 May 2011

Appearances: M G Sinclair for the Crown Prisoner appears in Person supported by O S Winter as Amicus Curiae

Judgment: 25 May 2011

NOTES OF JUDGE L H ATKINS QC ON SENTENCING

[1] Phillip Dean Taueki is to be sentenced after he has been found guilty of two counts of assault. Both offences occurred at Lake Horowhenua on 14 September 2008.

[2] The case has had a protracted history. The proceedings with which I dealt were put in train after there had been a hearing before Judge Ross in the summary jurisdiction. Prior to hearing these matters, I did not read the decision of Judge Ross because to read the decision of another Judge who dealt with the matter might be thought to create a preconception; so that I had not read Judge Ross’ decision until prior to the sentencing today. But it is apparent that, in respect of that hearing, there were findings made by the Judge.

[3] The matter was taken on appeal and the appeal was allowed on the basis that Mr Taueki had not been accorded sufficient opportunity to obtain legal

R V TAUEKI DC PMN CRI-2010-031-001588 [25 May 2011]

representation, so that the case was remitted back to the Court for re-hearing following the appeal being allowed on those grounds. When it came to hearing in this Court there was an election to the trial jurisdiction, but on a Judge alone basis, and Mr Taueki elected to represent himself. In light of the findings of the High Court with respect to the proceedings heard by Judge Ross, I took the view that the appropriate course - given that Mr Taueki was electing not to be represented by counsel - would be to appoint an Amicus, and that was done to ensure that assistance was provided both to the Court and to Mr Taueki during the course of the hearing. Mr Winter was the Amicus and I am grateful to him for the careful approach he has taken to the matter and the part that he played in the proceedings generally.

[4] The outcome, with respect to the three charges that were dealt with by me, was that Mr Taueki was found guilty on counts 1 and 3, being counts of common assault. He was found not guilty with respect to count 2. Since receiving the decision, Mr Taueki has indicated a degree of disagreement which, of course, is his right, and his intention to take the matter further which, again, is his right. But I think one misconception that he appears to have should be put right. One of the defences run by him was under s 56 Crimes Act 1961 which provides that:

Every one in peaceable possession of any land is justified in using reasonable force to prevent any person from trespassing on the land or to remove him therefrom, if he does not strike or do bodily harm to that person.

[5] There were two issues which arose with respect to that particular defence. The first was whether or not Mr Taueki could be said to be in peaceable possession of the land and the second was whether or not any force used by him was not such as to go further than might be permitted by the law itself in dealing with a trespass.

[6] I found that it was not necessary for me to determine the issue of not just possession but peaceable possession. Peaceable possession means, essentially, uncontested possession. The situation was one in which the sailing club claimed that they had a right to be on a particular part of the shore of the lake and to use the lake, and did not accede to Mr Taueki’s position that they were not permitted to do so. The conflict between the club and Mr Taueki indicated that conflict was in existence and that there were contesting views. The sailing club did not accept Mr Taueki’s

position, and he did not accept theirs and the view that I came to was that it could not be said that Mr Taueki was in peaceable possession of any land.

[7] The question of possession itself is a different issue and it is clear that Mr Taueki is one of a number of owners of the land immediately surrounding the lake, but that does not make him a person who was in peaceable possession and it should be made clear that that was one of the grounds for the decision, rather than what appears to be Mr Taueki’s misconception, namely that he was held not to be in possession in any way.

[8] Turning to the circumstances in the two matters in respect of which he was found guilty. The first count, relating to the assault on Anthony Brown: the background circumstances were that Mr Taueki sighted persons about to engage in activity on or about the lake and went to the scene because he was concerned about the use of a boat, which was a motorised boat which was termed by the club members a rescue boat. He was concerned, apparently, for two reasons. One, because in his view, it amounted to a speed boat, in respect of which type there was a prohibition. Secondly, and more importantly I think, from his point of view, he was concerned that he felt that the boat had not been properly cleaned before it went onto the lake. On arriving at the scene, Mr Taueki moved towards those involved from the sailing club and he took Mr Anthony Brown by the shoulders and shook him. That action amounts to an intentional application of force, and that was the nature of the first assault in respect of which he was found guilty.

[9] With respect to the second count, that was one of allegedly kicking David Brown in the chest, that was found not to be proved on the basis that the defence of self-defence had not been excluded by the Crown, and that matter does not fall for further consideration.

[10] The third matter was count 3, an allegation of punching David Brown. There was evidence given about that from the Browns themselves. Their evidence was as to a number of blows struck by Mr Taueki. In reaching my conclusion in relation to that charge, I did not rely on the evidence of either of the two Browns. The evidence on which I relied was of a Mr Copplestone, who gave evidence not of

a number of punches, but of - he thought - just the one. There was no doubt that a blow had been struck, and he thought it was just the one. It was his evidence that satisfied me that that charge had been proved. Accordingly, what was involved was a shaking in one case and one punch in the second case.

[11] When the general background circumstances are considered, it is to be observed, firstly, that Mr Taueki is a person who has genuine concerns about the way that the lake has been managed in the past, and genuine concerns about the rights of the owners of the lake of which he is one. It is also clear that the position of the sailing club had been one in which they had been permitted by a local authority to construct a building and use it. But Mr Taueki’s concern was that things had not been done appropriately, and were continuing not to be done appropriately in terms of the nature of the boat used, and also of ensuring that the boats were cleaned before going into the lake, that being required in order to prevent contamination or the introduction of weed of a kind that would cause difficulty for other users of the lake. The concerns he had about those matters are genuine concerns, I am satisfied, but it is also the case that, on my assessment of all of the evidence, he was inclined too readily to jump to conclusions about matters and to intercede too quickly and in respect of the charges of which he was found guilty, particularly the first one, to go further than would be necessary to attempt to safeguard the things that he was attempting to safeguard.

[12] The first matter is a matter that is of not great consequence, it consisting of a taking by the shoulders and a shaking. The second one is the delivery of a punch and that I found, on the basis of the evidence of the witness to whom I have referred, to have been proved. Mr Taueki submits today that he has overall concerns as to the lake and I have already indicated that I have no doubt that he has genuine concerns in that regard and that he is motivated in large measure by his concerns about not only the lake but also of the rights of the owners of the lake. That, however, does not entitle a person to engage in activity which amounts to an assault because, in essence, what he did in each of these two matters of which he has been found guilty went beyond what may be justified by concern about the lake. Resort to violence is no way of dealing with disputes between people.

[13] In that sense, my concerns are that Mr Taueki does not seem to be accepting of the notion that resort to violence is not to be permitted and is undesirable, and I continue to have concerns about that. He has also, in the submissions that he has made this morning, referred to what he regards as a one-sided approach towards enforcement of law by the police and he is also concerned that the police point of view appears to have been accepted. I cannot speak for what has happened in other proceedings. With respect to the matters on which I have found Mr Taueki guilty; on the first one he acknowledged the touching; on the second he denied the punch, but I accepted the witness - whose name I have mentioned and who was not either of the two Browns - as being a witness giving evidence of something which actually occurred.

[14] In those circumstances, I am of the view that I cannot accede to Mr Taueki’s request that he be discharged without any form of penalty. The first matter is minor and I do not consider that to be of great importance. The second matter, the punch, is more serious. In taking into account the general circumstances, I take into account the matter I have already raised, namely that Mr Taueki is genuinely concerned about proper use of the lake and protection of the lake. Secondly, the fact that he was subject to a degree of provocation by some of those he was confronting. Language was used, by one of them in particular, which was simply unacceptable and, as I have expressed in the decision, Mr Taueki’s anger at that can be understood. But it is important that violence be avoided, and, therefore, the matter has to be marked. Judge Ross sentenced Mr Taueki to a total of 120 hours’ community work.

[15] On count 1, I am of the view that, as I have already said, the assault was very much de minimis, it consisting of a shaking. I have also indicated that on count 3, a punch, it was more serious. Now with respect to count 3, Mr Taueki will be sentenced to community work. The amount of community work to which he will be sentenced will be 60 hours’ community work. Enquiries have suggested that there may be work available on the community work programme around the lake itself, and in my view it would be appropriate if Mr Taueki were required to do that sort of work as his community work. That is on count 3 and that is a sentence of 60 hours’ community work. On count 1, which is very much a de minimis matter, he is going to be convicted and sentenced to 40 hours’ community work which will run

concurrent with the 60 hours, so that the total amount he will be serving will be 60 hours’ community work.

L H Atkins QC District Court Judge