IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000018 [2015] NZHC 1477

BETWEEN	ERROL TE AROHA TUMARAE
Appellant	

AND	
THE QUEEN Respondent	

Hearing:	29 June 2015	

Appearances:	
P N Ross for Appellant
M Mitchell for the Respondent	

Judgment:	
29 June 2015	

(ORAL) JUDGMENT OF ANDREWS J

TUMARAE v THE QUEEN [2015] NZHC 1477 [29 June 2015]

Introduction

[1]       Mr Tumarae was convicted in the Napier District Court on 22 October 2014 after pleading guilty to a charge of intimidation under s 21(1)(e) of the Summary Offences Act 1981 and sentenced to 250 hours of community work.  He has applied for an extension of time to appeal against his sentence.

Facts

[2]       On 1 September 2014, Mr Russell Tully shot and killed two staff members at a WINZ office in Ashburton and shot at two other staff members, seriously injuring one of them.

[3]       The following day, 2 September 2014, Mr Tumarae went to the WINZ office in Napier wearing a jacket with a hood over his head.  Once inside the building he stood in a queue with five other people. A security guard approached him and asked him to remove the hood, but he refused.  The local WINZ manager then asked him to remove the hood and he responded by saying, “who the fuck are you” and swearing and verbally abusing her.

[4]       The manager then asked Mr Tumarae if she could take his papers for him and asked him to move out into the foyer as his behaviour was upsetting other staff and people  waiting  in  the  queue.    Mr Tumarae  walked  out  into  the  foyer  but  then suddenly rushed back towards the manager, stopping just short of her.  She feared he was going to assault her but he swore some more and again turned to walk away. However, Mr Tumarae again rushed back at the manager and said, “No wonder you guys get shot at” and “I might as well do it myself”.

[5]       Mr Tumarae then left the building.  He was apprehended outside and arrested.

The District Court judgment

[6]       The Judge’s decision was brief and can be set out in full:1

[1]        I cannot stress enough, Mr Tumarae, how serious the community considers this to be.  I am not joking.  It is really taken very seriously by the police, by the Court, by WINZ.  It is so terrifying for people being on the other end of something like this and there will be a section of the public out there that would be expecting someone like me to jail you for that sort of thing.  Well, whether you are fine with it or not I am going to give you a chance and give you a lot of community work, but you do anything like this again and you will be straight inside.

[2]        You are convicted and sentenced to250 hours of community work.  It reflects the seriousness of this offending, in my view, and you are lucky to get that. That is my opinion and I am the Judge so I can say that, so that is it and do not come back on another charge.

Appeal issues

[7]       The appeal was filed late.  An application has been made for an extension of time to appeal.   For the appellant, Mr Ross submitted that Mr Tumarae had immediately signalled an intention to appeal the sentence.  However, as a result of an error  by  counsel  the  appeal  was  not  filed.    Mr  Ross  submitted  that  the  delay, although extensive, was not inordinate and that the respondent would not be prejudiced by an extension of time being given.   An extension of time was not opposed by Ms Mitchell, for the police, other than on the merits of the appeal.

[8]       On the substantive appeal Mr Ross submitted that there is a tension between offences  such  as  that  of  intimidation  and  the  rights  of  freedom  of  speech  and freedom of association set out in the New Zealand Bill of Rights Act 1990.  He noted that this tension has led to consideration in the Supreme Court.  He referred to that
Court’s judgment in Morse v Police in which the Chief Justice said that:2

Tolerance  of  the  expressive  behaviour  of  others  is  expected  of  other members of the public resorting to public space because of the value our society places on freedom of expression.

Mr Ross submitted that in the present case, while they were unwelcome and unpleasant for the victim, both the comments made by Mr Tumarae and his gestures were forms of expression.

[9]       Mr   Ross   acknowledged   that   in   pleading   guilty   Mr   Tumarae   had acknowledged his guilt in that he intended, or reasonably knew, that his conduct

would frighten or intimidate the victim.  However, he submitted that Mr Tumarae’s offending was towards the lower end of the spectrum in that it was preceded by general abuse but no specific threats; there were security officers and police in and around the building; and Mr Tumarae must have been aware of them; Mr Tumarae’s “gratuitous and offensive remarks” followed after the offence of intimidation was completed by his lunging at the manager, and the incident happened in the heat of the moment.  Mr Ross described Mr Tumarae as being an angry man, mouthing off. He submitted that at its core the offending was not premeditated or planned and that notwithstanding the comments there was no intention to actually do anything in respect of the WINZ manager.

[10]     Mr Ross submitted that it would be wrong to visit a higher penalty than was justified by the offending by virtue of the terrible tragedy of the previous day.  He acknowledged that in all the circumstances a stern sentence was required, but submitted  that  a  sentence  of  100  hours  community  work  would  have  been appropriate even taking into account Mr Tumarae’s significant history of previous similar offending.  He submitted that 250 hours was completely out of proportion.

[11]     For the police, Ms Mitchell submitted that the sentence of 250 hours was appropriate for the offending which fell at the higher end of the scale.  Ms Mitchell first submitted that the Bill of Rights Act considerations had no bearing in this case. She submitted that Mr Tumarae’s conduct is not protected by the Act as there is no protective right to deliberately frighten or intimidate people.  Accordingly, it cannot be a mitigating feature of the offending that it involved an expression, as all threats or menaces will inherently be expressions in one form or another.  In support of this submission she referred me to the judgment of Asher J in Gillespie-Gray v Police in which his Honour did not accept that the Bill of Rights Act “provides a defence which in some way mitigates such intimidating conduct so that the criminal law will
not intervene”.3

[12]     Ms Mitchell further submitted that in sentencing Mr Tumarae the Judge was obliged to take all of the surrounding circumstances of the offending into account. The verbal abuse and veiled threat to shoot after the intimidating acts of lunging at

the  victim  were  part  and  parcel  of  the  offence  and  highly  salient  in  assessing Mr Tumarae’s overall culpability.   In particular, she submitted, the comments “No wonder you guys get shot at” and “I might as well do it myself” were significant in their timing, and an integral part of the offending which elevated its seriousness.

[13]     Ms Mitchell referred me to the District Court sentence in the case of R v Van Der  Maazen  by way of  illustration  of  the  sentencing  approach  for  this  sort  of offending.4   In Van Der Maazen a starting point of three months’ imprisonment was adopted for sentencing where the offender became angry and started swearing at a WINZ officer.  She also referred to the High Court sentencing in Broadmore v Police in  which  an  uplift  of  three  months’ imprisonment  was  imposed  in  relation  to threatening phone calls including to a local WINZ office.5     It appears that that sentence was in the context of other offending.

[14]     Ms  Mitchell  submitted that  taking into  account  the circumstances  of the offending and Mr Tumarae’s significant history of similar offending, the sentence imposed by the Judge could not be said to be manifestly excessive.

[15]     I accept Ms Mitchell’s submission that Bill of Rights Act considerations had no bearing in this case.  Mr Tumarae was not making a protected expression, he was not making a legitimate protest, he was being threatening and intimidating.   He cannot use the Bill of Rights Act to mitigate the imposition of a criminal sanction for his offending.

[16]     Further, it cannot be said that in sentencing Mr Tumarae the Judge visited him with the tragic events of the previous day.  Mr Tumarae did that himself by his own comments and his implied threat to do the same thing.

[17]     Mr  Tumarae’s  offending  involved  two  separate  instances  of  rushing  or lunging at the WINZ manager, and two instances of verbally abusing her, one of which was the reference to the killing the previous day.  The fact that Mr Tumarae
made the comment about the previous day’s killing, in which two WINZ officers had

4	R v Van Der Maazen DC Rotorua, CRI-2009-077-24, 21 May 2009.
5	Broadmore v Police HC Dunedin, CRI-2010-412-36, 27 October 2010.

been killed and two others shot at and injured, made that comment particularly and severely intimidating to the victim in this case – another WINZ manager.

[18]     Thirdly, Mr Tumarae has an extensive history of convictions for threatening and offensive behaviour dating back to 2001, with 12 separate convictions.  Previous sentences have not deterred him from further offending, so a deterrent sentence was required.

[19]     I take into account Mr Ross’ submission that it is important not to lose sight of the fact that this was, on the part of Mr Tumarae, a spur of the moment reaction to something as trivial as being asked to remove his hood.  I also take into account his submission that while Mr Tumarae must be expected to have to pay for it, this sentence was disproportionate.

[20]     However, Mr Tumarae could have expected the Judge to adopt a significantly high  starting  point  to  reflect  the  particular  circumstances  of  his  offending,  and Mr Tumarae’s   negative   personal   background   factors   would   have   justified   a significant uplift.   The end sentence was undoubtedly stern, and I accept it is at, or near, the top of the range that is available for this sort of offending.  However, I am not persuaded that, in all the circumstances which may in fact have been somewhat unique, the sentence that was imposed was so outside the available range as to be manifestly excessive.

[21]     Accordingly, while time is extended for the appeal to be brought, the appeal against sentence is dismissed.

Andrews J