HARRIS v R [2004] NZCA 46 (5 April 2004)

Court of Appeal of New Zealand

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HARRIS v R [2004] NZCA 46 (5 April 2004)

Last Updated: 5 May 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA406/03

THE QUEEN



v



ROBERT HENRY HARRIS

Hearing: 10 March 2003

Coram: Glazebrook J
John Hansen J
Ronald Young J

Appearances: R J Stevens for Appellant
A M Powell for Crown

Judgment: 5 April 2004

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]	On 2 October 2003 a jury in the District Court at Wellington found Mr Harris guilty of one count of wilful damage. He was sentenced to 100 hours of community service. Mr Harris appeals against that sentence.

Background

[2]

Mr Harris had been subject to 15 charges of wilful damage, 14 of which were dismissed during the hearing, 12 by way of discharge under s347 of the Crimes Act 1961 and two by way of not guilty verdicts on the part of the jury. The complainant in all cases was a man with whom Mr Harris had fallen out some years before over a business venture.

[3]

The charge on which Mr Harris was found guilty related to an incident on 21 July 2002, in the early hours of the morning. Mr Harris was driving past the complainant’s address and sprayed "[MC] is a cunt" on the complainant’s garage and a wall. He claimed in evidence that he had merely added to similar graffiti already present. The graffiti had been able to be cleaned off and Mr Harris contributed $2,000 to the cost of that.

Sentencing remarks

[4]	Dalmer DCJ began by reflecting that Mr Harris knew more about the damage than he had let on. He said:

Whether you were directly involved, whether you knew what others were doing, is a matter between you and your conscience. But by withholding information that could have assisted the complainant, I think you showed yourself to be mean spirited, your actions were cruel and certainly not those that any decent person would espouse.

The Judge continued:

The complainant has putting it bluntly, been put through hell since October 2001. They have never known when they woke up each morning what the night might have brought and on close to 20 occasions now, substantial paid or corrosive damage to their walls, garage and/or cars has occurred. There was at least one occasion in which you were found parked nearby revelling in what you saw at that time. I cannot give you credit for an early plea of guilty. You played hardball throughout the course of this case and it seems to me that if you had not blurted out to the investigating detective what you did say on 31 October, that it is very doubtful that you would have made any further admission.

[5]

The Judge went on to state that he had to sentence Mr Harris on the basis of what had been found proved by the jury and that he had to put aside any suspicions in relation to other matters that had been resolved in Mr Harris’ favour.

[6]

The Judge then recorded that the damage, even on this one occasion, was substantial. Taking note of the offer of $2,000 reparation that had been accepted the Judge considered a term of 100 hours of community work appropriate. He suggested, however, that, if Mr Harris was found to be unfit to undergo that sentence because of continuing serious medical problems, then an application for review of sentence could be made.

Appellant’s submissions

[7]	For Mr Harris, Mr Stevens submitted that the Judge, despite purporting to put aside his suspicions, clearly sentenced Mr Harris on the basis that he was in some way involved in or aware of all the offences with which he was charged. The reference to the complainant having been "put through hell" also suggests that the Judge was taking into account the effect of the offending as a whole when imposing sentence. In Mr Steven’s submission these remarks were not only unnecessary and irrelevant but also clearly affected the Judge’s approach to sentencing. An independent observer would, submitted Mr Stevens, have no doubt that the Judge thought Mr Harris was responsible for far more than he was convicted of and that he had been sentenced accordingly.
[8]	Mr Stevens further submitted that the Judge failed to give any consideration to Mr Harris’ personal circumstances including his medical condition. Following the Jury’s verdict the Judge decided not to call for a probation report because he was aware of Mr Harris’ personal circumstances from hearing him give evidence. Despite a submission at sentencing that Mr Harris was clearly physically and medically unable to undertake a sentence of community work, the Judge imposed such a sentence, remarking that Mr Harris could, in the event that he was found to be unfit to undergo that sentence, apply for a review. In Mr Stevens’ submission this approach was inappropriate. Instead the Judge should have called for a pre-sentence report to determine if Mr Harris was physically and medically able to undertake community work before imposing that sentence. Such an approach, he submitted, is consistent with s56 of the Sentencing Act 2002 which requires a court to consider whether community work is an appropriate sentence having regard to "the offender’s character and personal history and any other relevant circumstances". In Mr Stevens’ submission, a sentence of community work was clearly inappropriate in Mr Harris’ circumstances.
[9]	Alternatively Mr Stevens submitted that a sentence of community work was manifestly excessive in view of the nature of the offence and Mr Harris’ culpability. Mr Harris was convicted only of painting graffiti on the complainant’s address on one occasion. Although the words used were clearly offensive, Mr Harris was not responsible for the numerous earlier offences using the same words and only added to graffiti that was already present. In addition Mr Harris had no previous convictions for wilful damage, had not been convicted of any offences since 1985 and had offered to pay reparation of $2,000 in one lump sum within 14 days. In Mr Stevens’ submission the Judge also clearly failed to consider the principles outlined in sections 8 and 13 of the Sentencing Act 2002.
[10]	Finally Mr Stevens submitted that, even if community work was an appropriate sentence, the 100 hours imposed was manifestly excessive. Although the Judge said he was giving Mr Harris what credit he could "for the matters I have referred to", he had not referred to any matters which Mr Harris could be given credit for and gave no consideration to Mr Harris’ personal circumstances of the significant changes he had made in his life since he last appeared in Court in 1985.

Crown submissions

[11]	Mr Powell, for the Crown responded by noting that the damage in this case was significant and was motivated by malice. In the Crown’s submission the offending required unequivocal denunciation and there was also a need to deter others who might consider resorting to such uncivil behaviour to express their feelings during a personal or business dispute. A sentence of 100 hours community service was, in the Crown’s submission, well within the available range.
[12]	Next Mr Powell submitted that the Judge did nothing wrong in having regard to the evidence given at trial. He did not punish Mr Harris for anything other than the crime he was convicted of but properly resorted to the context of the offending in order to adjust the sentence to meet it.
[13]	Finally the Crown submitted that, under s56(3) of the Sentencing Act 2002, the Judge may assume that suitable community work can be found for the offender to undertake, unless a probation officer advises the Court otherwise. Under s61 it is for the probation officer to determine where the community work is to be done and community work now covers a wide range of work types. Further, the probation officer is expressly guided by s62 to include in his or her consideration the offender’s physical and mental capabilities. In this case the Judge had assumed, as he was entitled to do, that community work could be found. If the Judge had wanted pre-emptively to consider the issue he could have sought a pre-sentence report to deal with it but was not in Mr Powell’s submission obliged to do so.

Discussion

[14]

We accept Mr Stevens’ submission that, even though the Judge said he had put his suspicions to one side in relation to the other matters, he was in fact influenced in his sentencing by those suspicions. This is, in our view, borne out by the language he used in describing his suspicions. It is also borne out by the fact that the Judge did not articulate his reasons for rejecting the option of a fine or, apart from expressing the view that the damage had been substantial, as to why the single offence merited a term of community service. These reasons should have been articulated in any event.

[15]

This means that the appeal must be allowed. The question therefore is what the appropriate sentence is. In this case there was relatively serious damage, as measured by the clean up costs, but it was not permanent damage. We accept the Crown’s submission that there was an element of malice involved in the offending and that there is a need for deterrence and denunciation of such offending. We consider, however, that this could be achieved by means of a relatively substantial fine.

Result

[16]	For the reasons set out above, Mr Harris’ appeal against sentence is allowed, the sentence of community work quashed. Having considered Mr Harris’ financial circumstances, as outlined in his statement of financial position dated 30 March 2004, and the reparation paid, a fine of $1,000 is imposed.

Solicitors:
Fanselows, Solicitors, Wellington
Crown Law Office, Wellington