Ratahi v Police

[2012] NZHC 626

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS

11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-000001 [2012] NZHC 626

BETWEEN  BRYAN NOEL RATAHI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 April 2012

Counsel:         No appearance for Appellant

J M Marinovich for Respondent

Judgment:      2 April 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      The appellant has filed a notice of appeal against his conviction and sentence

of  five  months’ imprisonment  imposed  in  the New  Plymouth  District  Court  on

18 January 2012 for breaching a protection order contrary to ss 19(1)(d) and 49(1)(a) of the Domestic Violence Act 1995.  When his appeal was called in the High Court his assigned counsel advised the Court:

(1)       The appellant had served his sentence;

(2)The  appellant  could  not  now  be  located  and  could  not  provide instructions to his assigned counsel.

RATAHI V NEW ZEALAND POLICE HC NWP CRI-2012-443-000001 [2 April 2012]

Procedure

[2]      Counsel for the Crown suggested that the appeal could be dismissed for want of prosecution pursuant to s 133 of the Summary Proceedings Act 1957.   That section provides:

133     Dismissal of appeal for non-prosecution

(1)       If an appellant does not appear at the hearing of the appeal and, if he is in custody, he has not presented any case or argument in writing as provided in section 130 of this Act, or if an appellant, having appeared at the hearing, does not prosecute his appeal, the High Court may, if it thinks fit, dismiss the appeal for non-prosecution.

(2)       Where the High Court dismisses any appeal for non-prosecution, the Registrar of that Court shall transmit a certificate to that effect to the Registrar of the District Court whose determination was appealed against.

[3]      This case does not fit all of the criteria required by s 133.  The appellant has not appeared but he is also no longer in custody.

[4]      Absent express statutory power to dismiss this appeal for want of prosecution

I consider it appropriate to review:

(1)       the evidence heard by the District Court;

(2)       the submissions made to the District Court Judge;  and

(3)       the judgment and sentencing notes of the District Court Judge

to determine the appeal in the absence of the appellant pursuant to the principles set out by the Supreme Court in Petryszick v R,[1] thereby giving effect to the appellant’s

right to appeal.[2]

[1] Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153.

[2] New Zealand Bill of Rights Act 1990, s 25(h).

[5]      In 2006 the appellant formed a relationship with Ms X.  They had a child. The relationship ended in 2009.  On 22 September 2009 the New Plymouth Family Court issued a temporary protection order in favour of Ms X against the appellant. A final protection order was issued by the New Plymouth Family Court on 19 October

2009.

[6]      On 27 December 2011 the appellant was driving a vehicle on Devon Street in New Plymouth.   Ms X happened to be driving in the opposite direction.   As the appellant approached Ms X’s vehicle, she said that he looked directly at her and yelled an obscenity at her.  Ms X’s evidence was challenged by counsel assigned to act for the appellant at his trial.  I have examined that cross-examination but can find no reason to question the District Court Judge’s finding of fact that the appellant did utter the obscenity complained of to Ms X on 27 December 2011.

[7]      I have also carefully focused upon the evidence which the appellant gave in the District Court.  He denies having uttered anything to Ms X when their vehicles passed on 27 December.  I have also examined the evidence of a witness called by the appellant, who says he was in the appellant’s vehicle but made no reference to having seen Ms X at all on the day in question.

[8]      In his judgment the District Court Judge fully explained the evidence he had heard and the reasons why he accepted Ms X’s account of events.  In sentencing the appellant the District Court Judge took account of the appellant’s unenviable list of prior convictions, which included eight prior convictions for breaching protection orders.   Indeed, the appellant was last sentenced on 18 November 2011 to three months’ imprisonment for breaching a protection order and offended on this occasion on the date of his release from prison.

[9]      Having carefully assessed the District Court Judge’s judgment and sentencing notes I can see no basis for the appellant’s suggestion in his written notice of appeal that the District Court Judge failed to sufficiently take account of the evidence that was before the District Court Judge.  The District Court Judge did take account of all

relevant matters.  The sentence imposed was within range of sentences reasonably available in the circumstances presented to the Judge.

Conclusion

[10]     For these reasons the appeal against conviction and sentence is dismissed.

D B Collins J

Solicitors:

Crown Solicitor, New Plymouth