The Queen v Harris [2008] NZCA 214 (8 July 2008)

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The Queen v Harris [2008] NZCA 214 (8 July 2008)

Last Updated: 21 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA719/07

[2008] NZCA 214

THE QUEEN

v

ALAN NOEL HARRIS

Hearing: 1 July 2008

Court: Ellen France, Gendall and Venning JJ

Counsel: W M Johnson for Appellant
N P Chisnall for Crown

Judgment: 8 July 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] A jury found Mr Harris, the appellant, guilty of attempting to use a firearm against a police officer acting in the execution of his duty. At the commencement of the trial the appellant had pleaded guilty to counts of unlawful possession of the firearm and its ammunition. Prior to trial he had also pleaded guilty to a count of driving whilst disqualified on a third or subsequent occasion and to dangerous driving, possession of methamphetamine and possession of both cannabis and cannabis oil. He had also pleaded guilty to a breach of community work.
[2] Judge Dawson, the trial Judge, sentenced the appellant to five years nine months’ imprisonment: DC PMN CRI-2006-054-001606 14 December 2007. The appellant originally appealed against both conviction and sentence. At the outset of the hearing Mr Johnson confirmed the appellant no longer pursued the appeal against conviction and it is accordingly dismissed. The appeal was limited to the sentence.

Background

[3] The offending arose from an incident that occurred just after midnight on Wednesday 12 April 2006. The appellant was in a car parked at the side of State Highway 56 in Longburn. A police patrol car drove past him and carried out a u-turn. The appellant drove off to avoid being spoken to. The appellant’s car reached a speed in excess of 140 kilometres an hour. It failed to take a right-hand turn. The car crossed both lines of the road before crashing through a stock fence and into a paddock. The appellant continued to drive around the paddock in an attempt to find an exit and avoid being caught by police. His car became stuck in a wire fence. He then ran from the car. He was caught by a police dog. When the dog handler arrived the appellant was fighting with the dog. The appellant was told what to do to disengage the dog. The appellant ignored the instructions and continued fighting with the dog. The police constable struck him on the arm several times with his torch to make him release his grip on the dog. By then two other constables arrived. With their assistance the appellant’s hold on the dog was released.
[4] The appellant tried to access a small mesh bag he had around his neck under the outer layer of his clothing. He was told to remove his hand from the bag and to stop resisting arrest. A struggle then ensued between the appellant and the constables. During that struggle the appellant drew out a small six-shot .22 calibre pistol from the bag around his neck. Before he was able to present or fire it, it was dislodged from his hands by the police officers. The pistol did not have any safety mechanism on it. It was loaded with six rounds of ammunition. During the struggle the appellant reached into another bag secured around his waist and stuffed a small bag containing a number of items into his mouth. He later spat the bag out. It was found to contain 1.2 grams of methamphetamine, a pill container with two cannabis oil capsules and a small plastic container containing cannabis oil together weighing 4.4 grams. When searched, the appellant was found to have a further 22 hollow point .22 ammunition rounds. Two grams of cannabis material were also found in a belt-bag around his waist. At the time of the offending the appellant was in breach of a community work order and was on bail. He was also a disqualified driver.

The sentence structure

[5] The Judge took as a start point for the firearms offences a sentence of four years. He fixed an uplift of six months because of the appellant’s “appalling” conviction record and imposed the sentence of four years six months on the lead charge of attempting to use a firearm against a police officer in the course of duty. On the charges of unlawful possession of a firearm and explosives (ammunition) he was sentenced to a term of imprisonment for one year on each count to be served concurrently with that sentence. On the charge of breach of community work the Judge cancelled the existing sentence and imposed a sentence of one month’s imprisonment to be served cumulatively. On the charge of possession of methamphetamine he imposed a sentence of two months’ imprisonment to be served cumulatively. On the charges of possession of the cannabis oil and cannabis plant the appellant was sentenced to a term of imprisonment of one month to be served concurrently with the lead charge of possession of methamphetamine.
[6] On the charge of driving whilst disqualified, it being a third or subsequent offence, the appellant was sentenced to a term of imprisonment of one year to be served cumulatively. In total the sentence was five years nine months.

The appellant’s case

[7] Mr Johnson submitted that the start point of four years’ imprisonment for the offence of attempting to use a firearm against a member of the police in the course of duty was too high. Further, while he could not fault the one year sentence for the third driving whilst disqualified offence, when it was taken in combination with the other sentences the end sentence of five years nine months was “simply too long”.
[8] Mr Johnson submitted that this was not a serious case of its kind. He referred to a decision of R v Wells HC AK CRI 2003-092-026964 T033146 30 April 2004 where Harrison J had imposed an end sentence of six and a half years’ imprisonment on an offender who, when his car was pursued by police officers, had leant out the window and fired a number of shots from a .22 sawn-off rifle at them. The appellant in that case was also for sentence on a charge of possession of pre-cursor materials. Harrison J took a start point of six years’ imprisonment for the charge of presenting a firearm but uplifted the start point to seven years to reflect the totality of offending. The case of R v Wells is quite different on its facts. It does not assist the appellant. While Wells had used a firearm against the police he had discharged it from his vehicle when it was moving and when the police car was some distance away. The danger the appellant posed to the police officers in the present case was, in a sense, more immediate or at least it would have been if he had not been disarmed. The start point taken by the Judge in Wells sits with the start point taken by Judge Dawson of four years in this case.
[9] Mr Johnson went through the appellant’s list of previous convictions with the Court in an attempt to explain the sort of circumstances in which this offending occurred and to suggest that he had not offended for a long time before early 2000. But while there is a gap in offending between 21 January 1995 and 28 October 2003 that is largely explained by the fact the appellant was sentenced to imprisonment for nine years on 13 December 1996.
[10] Further, this Court has said in the case of R v Taylor CA407/88 9 May 1989 that deterrence is a major consideration in offending of this nature. Pursuant to s 198A and s 311(1) of the Crimes Act 1961 the maximum penalty for the offence of attempting to use a firearm against law enforcement officers is seven years’ imprisonment. The circumstances of the appellant’s offending in this case were near to the most serious of cases for such an offence.
[11] By s 8(d) of the Sentencing Act 2002 the sentencing Judge was required to impose a penalty near to the maximum prescribed for the offence. By taking a start point of four years for the offence, particularly when he fixed concurrent sentences for the related firearm offences to which the appellant had pleaded guilty, the Judge could be seen as being lenient towards the appellant.
[12] The Judge was entitled to add an uplift to the sentence for the appellant’s previous convictions. The appellant has a very bad record. As the Judge noted the appellant has 117 convictions, including 18 for assaulting police, resisting or other violent offences. He also has a large number of driving convictions, including repeated offences of driving whilst disqualified. In addition this offending was committed whilst the appellant was on bail. The uplift of six months for the appellant’s personal aggravating circumstances was warranted.
[13] The Judge was also entitled to treat the drug offending, the breach of community work and the driving whilst disqualified offending as separate offences deserving cumulative sentences. Section 84(1) of the Sentencing Act confirms that cumulative sentences are generally appropriate if the offences are different in kind, whether or not they are a connected series of offences. The important point is that the Judge directed himself to the issue of totality. He was aware of the need to ensure that the total sentence was not out of proportion to the gravity of the overall offending as is required by s 85(2). The Judge recorded in the course of his sentencing notes that ordinarily the sentence for driving whilst disqualified on a third or subsequent occasion would have been higher but he took into account the totality principle in fixing it at one year.
[14] We conclude that the final sentence of five years nine months’ imprisonment was well within the range available to the Judge for the totality of the offending by the appellant in this case.

Result

[15] The appeals are dismissed.

Solicitors:
Crown Law Office, Wellington