Harema-Watts v R [2017] NZCA 306 (18 July 2017)

Last Updated: 27 July 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA664/2016 [2017] NZCA 306
BETWEEN	RIDGE HAREMA-WATTS Appellant
AND	THE QUEEN Respondent

Hearing:	27 June 2017
Court:	Miller, Lang and Mander JJ
Counsel:	M N Pecotic for Appellant E J Hoskin for Respondent
Judgment:	18 July 2017 at 2.00 pm

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

[1] Ms Harema-Watts was found guilty by a jury on charges of kidnapping and injuring with intent to cause grievous bodily harm. She had earlier pleaded guilty to a charge of assault with intent to injure.

[2] On 20 November 2016, Judge D J Sharp sentenced Ms Harema-Watts to an effective term of two years three months imprisonment on all charges.^[1] Ms Harema-Watts appeals against sentence on the basis that the Judge adopted a starting point that was too high and failed to give Ms Harema-Watts credit for the fact that she paid reparation in the sum of $1,000 to one of her victims. Prior to the hearing Ms Harema-Watts indicated that her appeal against conviction was no longer being pursued, and her counsel confirmed this at the hearing. We thus treat it as having been abandoned.

Background

[3] The charges of kidnapping and injuring with intent to cause grievous bodily harm were laid as a result of an incident that occurred on the afternoon of 14 July 2015. On that date Ms Harema-Watts arranged for the victim, whom she had known for approximately two years, to come to the address at which she was then living with her parents. In an earlier text message exchange she had told him her grandmother had died, and she accepted his offer to accompany her to buy flowers for her grandmother’s funeral. When the victim arrived at Ms Harema-Watts’ address, she gave him a coffee. The victim then waited on a couch in the lounge for Ms Harema-Watts to get changed before going out.
[4] At that point at least two persons, neither of whom was known to the victim, entered the lounge and confronted the victim. They were dressed in Swandri jackets and their faces were obscured. The victim said that as soon as the men entered the room one of them struck him on the back of the head with what he believed to be the butt of a firearm. The men asked the victim for money, and then began punching and kicking him. These blows knocked the victim to the ground, where he was punched and kicked several times. He was then wrapped in a blanket that covered his head, and his hands and legs were tied. A short time later he was placed in the rear seat of his own vehicle.

[5] The vehicle then left the address with the victim still tied up and wrapped in the blanket on the back seat. The victim said he believed Ms Harema-Watts was the driver of the vehicle, and one of the men who had assaulted him was in the front passenger seat. This person continued to threaten and assault the victim during the ensuing journey, which ended when the vehicle arrived at the victim’s address.
[6] By this stage the victim had been able to free his hands and legs. When the vehicle stopped, he kicked out the glass in the rear window of the vehicle and dived out of the vehicle. He was then assaulted further by Ms Harema-Watts’ associates, who only left the scene when persons in the vicinity saw what was happening and contacted the police.
[7] The incident led to the victim sustaining significant chest injuries, including multiple rib fractures and a collapsed lung. He also suffered a laceration to the back of his head and significant facial bruising. In addition, he received lacerations to his knees. During the course of the incident the victim’s watch, cellphone and two rings were removed from him and taken by his assailants.
[8] The charge of assault with intent to injure was laid as a result of a separate incident that occurred whilst Ms Harema-Watts was on bail on the other two charges. Counsel have been unable to locate any documents relating to this charge. As a result, virtually nothing is known about the circumstances that led to it being laid. The Judge referred to the fact that it involved the victim being injured as a result of blows delivered by Ms Harema-Watts and her co-offender. He also observed that the co-offender had been discharged without conviction.^[2]

The sentence

[9] The Judge acknowledged that Ms Harema-Watts had not been directly responsible for the physical violence inflicted on the victim. However, he did not regard this fact as being a mitigating factor. He considered her role to have been central to the offending, and that she had effectively used the physical strength of others who she knew would do her bidding.
[10] The Judge took a starting point of three years six months imprisonment to reflect Ms Harema-Watts’ culpability on the two charges laid as a result of the incident that occurred on 14 July 2015. Although the Judge observed that offending whilst on bail was a serious factor, he did not apply any uplift in respect of the charge of assault with intent to injure.
[11] The Judge then applied a discount of 12 months to reflect Ms Harema-Watts’ youth. The offending had occurred when she was just 17 years of age. He then applied a further discount of three months to reflect her lack of previous convictions. This produced an end sentence of two years three months imprisonment on the kidnapping charge. In addition, the Judge made an order that Ms Harema-Watts pay emotional harm reparation to the victim in the sum of $1,000. He imposed concurrent sentences of two years imprisonment and six months imprisonment respectively on the remaining charges of injuring with intent to cause grievous bodily harm and assault with intent to injure.

The appeal

[12] Ms Pecotic, who appeared for the appellant, submitted that the Judge adopted a starting point that was too high, having regard to the fact that Ms Harema-Watts was not physically responsible for inflicting violence on the victim. She submitted that the circumstances of Ms Harema-Watts’ offending were therefore less serious than those in Tozer v R, in which a starting point of three years six months imprisonment was upheld in respect of an offender who had entered the victim’s home and assaulted him using a wooden batten.^[3] He then drove him away from his address under duress.
[13] In addition, Ms Pecotic submitted that text message communications between Ms Harema-Watts and the victim confirmed that he had sold drugs to her. Ms Harema-Watts also maintained that the victim had sexually assaulted her. Ms Pecotic submitted that the offending therefore occurred in circumstances where Ms Harema-Watts was responding to provocative acts by the victim.
[14] Ms Pecotic also submitted that the Judge ought to have applied an additional discount to reflect the fact that Ms Harema-Watts had used her savings to pay the sum of $1,000 to the victim by way of emotional harm reparation. She submitted that this was a significant gesture that ought to have been reflected in the sentence the Judge imposed.

Decision

[15] In Tozer, the case upon which Ms Pecotic relied, the offender burst into the house where the victim was staying. The victim was involved in a relationship with the offender’s estranged wife. The offender struck the victim on the head with a wooden batten on numerous occasions. When the offender’s wife escaped, the offender forced the victim to get into his own vehicle in an injured state. The offender then drove some distance with the victim being detained in the vehicle against his will before the police intervened. The victim suffered significant injuries including a large laceration to the head and bruising to the head and face. This Court upheld a starting point of three years six months imprisonment on charges of kidnapping and injuring with intent to injure.
[16] Ms Pecotic submitted that a lower starting point was required in the present case because, unlike the offender in Tozer, Ms Harema-Watts was only a party to physical violence inflicted by others. We do not accept that submission. Ms Harema-Watts was the person who instigated the present offending, which involved the prolonged assault and detention of the victim by at least two other persons. Furthermore, Ms Harema-Watts was one of the persons responsible for detaining the victim whilst he was in the vehicle. Overall, we consider her culpability to be broadly similar to that of the offender in Tozer. We also note that this Court described the starting point adopted in Tozer as being “well within the range available”.^[4]

[17] The starting point in the present case needed to reflect several factors. The first was that Ms Harema-Watts lured the victim to her address under false pretences with the intention that he be assaulted and threatened on his arrival. She was also responsible for arranging her associates to be at the address in circumstances where she knew and intended that they would subject the victim to the physical violence that occurred there. That violence included a blow to the head with a weapon, as well as other blows to both the head and the body. The fact that the victim was then tied up and transported back to his own address is a further aggravating factor, as is the physical violence that was meted out to him on arrival there. Furthermore, the victim suffered significant injuries, and several personal items were forcibly stolen from him. Taken together, we consider that these factors easily justify a starting point of three years six months imprisonment.
[18] We also reject the submission that the overall culpability of the offending was reduced by provocative conduct on the part of the victim. We do not consider the factors relied upon by Ms Pecotic provided any justification for the incident that occurred. Instead, we agree with the Judge’s observation that the offending was aggravated by the fact that it amounted to a form of vigilante justice in which Ms Harema-Watts elected to take matters into her own hands.
[19] We acknowledge that the payment of reparation was a factor that the Judge ought to have recognised by way of discrete discount. This does not mean, however, that the end sentence was manifestly excessive. The Judge had already adopted a lenient approach by declining to apply an uplift in respect of the violent offending that had occurred whilst Ms Harema-Watts was on bail. The three month discount to reflect lack of previous convictions was also generous given the fact that Ms Harema-Watts was just 19 years of age at the time of sentencing and had already been convicted on a charge of shoplifting the previous year.
[20] Any discount to reflect the payment of reparation would necessarily have been modest. We consider the Judge’s omission to provide a discount to reflect that factor was easily offset by the lenient approach he adopted in the two respects identified above. For that reason we do not accept that the end sentence was manifestly excessive.

Result

[21] The appeal against conviction not having been formally abandoned we dismiss it. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Harema-Watts [2016] NZDC 24067.

^[2] At [15].

^[3] Tozer v R [2010] NZCA 7.

^[4] At [7].