Miru v Police

[2013] NZHC 599

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-76 [2013] NZHC 599

BETWEEN  JOSEPH MIRU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 March 2013

Appearances: J Miru, Appellant, in person

C A Anderson for Respondent

Judgment:      26 March 2013

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 146, Whangarei
Copy to

J Miru, Appellant

MIRU V NEW ZEALAND POLICE HC WHA CRI 2012-488-76 [26 March 2013]

[1]      Mr Miru lodged appeals against convictions and sentences imposed in respect of charges of resisting a police officer in the execution of his duty and assaulting the same officer.  The incidents in issue occurred on 24 June 2010.  Mr Miru was sentenced to community work of 100 hours and 50 hours respectively, in February

2011.

[2]      On 19 October 2012, a probation officer applied to the District Court for Mr Miru to be resentenced.   That was done on the basis that he had not completed his community work.   Judge Duncan Harvey imposed a sentence of six weeks imprisonment, in substitution for the community work.

[3]      In early 2011, Mr Miru was also tried before a jury in the District Court on a charge of escaping lawful custody.   That too arose out of an incident on 24 June

2010.  A sentence of 150 hours community work was imposed, to run concurrently with the other two sentences.  That meant that Mr Miru was in total to serve a period of 150 hours community work.

[4]      No appeal was lodged against the conviction that followed the jury trial.  The appeals against conviction and sentence on the two other charges each imposed in the District Court at Dargaville on 8 February 2011 were filed well out of time.  So too was an appeal against the substitution of the sentence of imprisonment that was determined on 19 October 2012.  Section 116(1) of the Summary Proceedings Act

1957 requires a general appeal to be filed within 28 days of sentence.  An extension of time to appeal is, therefore, required if the appeals were to be considered in this Court.

[5]      Mr Miru has genuine concerns about his ability to defend himself at trial in

2011 for medical reasons.  However, there was no appeal brought against the jury verdict.

[6]      So far as the other two charges were concerned, he pleaded guilty on 30 June

20101 and was sentenced on 8 February 2011 following the jury trial.

1      In any event, there are significant difficulties arising from appeal against conviction on the basis

[7]      Mr Miru also relies on an argument that the Court has no power to deal with him charges of this type because, among other things, of the terms of  Te Ture Whenua Maori Act 1993.

[8]      I have had an extensive discussion with Mr Miru about the problems with his appeals.  I have made it clear that I am not disputing Mr Miru’s comments about the state of his health.  It is simply that I cannot, at this late stage, go behind his guilty pleas.

[9]      So far as the sentence of imprisonment is concerned that was substituted on

19 October 2012, there was no conviction on that day.  It was simply a matter of the

[10] to ap	In eal: (a)	my view, there are three factors that militate against an extension of time No appeal has been brought against the sentence imposed following
the jury trial.  That means that, in any event, a sentence of 150 hours
community work fell to be served.
(b)	The appeal points raise arguments challenging the jurisdiction of the
New Zealand Courts.   This Court cannot entertain any challenge of that  type.2   Not  only  is  there  clear  appellate  authority  for  that proposition, but one of the cases in fact involved Mr Miru personally.3
(c)	The period of imprisonment substituted by Judge Duncan Harvey has
been served.

 

Judge substituting a sentence of imprisonment for the community work that had not been served.

p

of guilty pleas: see R v Le Page [2005] 2 NZLR 845 (CA).

2      For example, see Wallace v R [2011] NZSC 10 and other cases collected in fn 23 of my judgment in R v Mason [2012] 2 NZLR 695 (HC).

3      R v Miru CA65/01, 26 July 2001, at paras [4]–[10].

[11]     In those circumstances, an extension of time to appeal is refused, with the

consequence that the appeals are dismissed.

P R Heath J