R v Harris [2017] NZDC 16859 (31 July 2017)

Last Updated: 18 January 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-004286 [2017] NZDC 16859

THE QUEEN

v

_{FRED HARRIS}

Hearing:	31 July 2017
Appearances:	L Radich for the Crown T Johnson for the Defendant
Judgment:	31 July 2017

_{NOTES OF JUDGE J E MACDONALD ON SENTENCING}

[1] Mr Harris, as you know the jury found you guilty on charges of demanding with menaces and aggravated robbery. Your co-offender was your brother, Marona Harris. He had pleaded guilty to the charges but you went to trial on the basis of denying that you were involved at all. As you will appreciate the jury by its verdicts plainly rejected that.

[2] I need to set out the brief facts of what occurred here. In respect of the first charge of demanding with menaces the victim, [victim 1], was sitting in his car parked on Feasegate Street in Manurewa texting on his cellphone. This was at about 4.15 pm on 15 April 2016. You and your brother were disguised and approached the vehicle from behind. Both of you tried to open the car doors and you pointed a pistol at the

_{victim. One of you told him to open the door. Plainly your intention was to steal his}

R v FRED HARRIS [2017] NZDC 16859 [31 July 2017]

car. Luckily for [victim 1] the doors of the car were locked and he was able to drive off at speed and ring the police.

[3] That incident was witnessed by [witness 1 and witness 2], who live [details deleted]. You were then seen to walk towards Burbank Avenue and sometime later they saw the two of you running past their house and into [address deleted]. A short time after that they saw the same two people come out of the address wearing different clothing. Two bandannas and black gloves were later found in a rubbish bin at the address.

[4] Of course, in between time what you had done was rob the [Grocery store]. You entered through different doors. You went in the front door. Your brother went in a side door. He had a bandanna around his neck and wore dark glasses but was easily recognised on the CCTV footage. In your case you wore a black hoodie and black gloves and you could not be recognised. As is shown on the CCTV footage you were armed with a black pistol. Your brother’s attentions were directed at [victim 2] who came out into the store. Your attentions were directed at [victim 3]. You demanded money from the till and all the while you had the pistol pointed at her. You left the shop with about $400 in cash. You were eventually apprehended by police after running up the drive of your mother’s address at [address deleted].

[5] For what it is worth I thought the Crown case against you was strong. There was the evidence I have already mentioned that the two persons who demanded [victim

1]’s car were the same two persons who came running back to [address deleted], and then subsequently emerged wearing different clothing. The two bandannas and the black gloves found in the rubbish bin at that address were consistent with the clothing worn by the aggravated robbers. Your DNA was found inside one of the gloves. Even though you say this was family clothing that you had worn before the telling feature is that the bandannas and the gloves were found together in the same rubbish bin on the same day as the aggravated robbery.

[6] The tattoos on the arm of the person holding the pistol in the CCTV footage were consistent with your tattoos. While you could not be identified on the CCTV footage you came within the physical description of the person shown. You lied to the

police about your knowledge of or presence at [address deleted]. I am satisfied that you realised you did not wish to be linked to that property given the incriminating evidence that was likely to be found there in the form of the discarded bandannas and the gloves. You were seen by the police to be sweating and out of breath, which was consistent with having run from the aggravated robbery with your brother. You were also aggressive and uncooperative with the police, suggesting that you had something to hide.

[7] I have three victim impact statements. The first victim, [victim 1], was very scared about what happened to him and was left shaking. That is entirely understandable. For the other two victims, [victim 2 and victim 3], this was a terrifying experience and you could see on the CCTV footage [victim 3] cowering away from you as you pointed the pistol at her.

[8] In terms of the aggravating factors of the offending I am not going to get bogged down in this because this is a case of tariff sentencing. Nevertheless I approach it on the basis that there was a degree of planning reflected in you wearing a hoodie and gloves. I also wonder whether the approach to [victim 1] to steal his car was all part of it too, because that would have provided you with a getaway vehicle. You had a weapon in the form of a pistol. The fact that the two of you were acting together has already been taken into account in making the robbery an aggravated one. The other aggravating factor is the impact on the three victims.

[9] I take the view that there are no mitigating factors as far as the offending is concerned.

[10] As for your personal circumstances I can take into account as an aggravating factor your prior convictions. The wounding charge is obviously very serious, but I take Mr Johnson’s point that it was some time ago, and in the circumstances I am not going to recognise that in the sentence that is ultimately imposed.

[11] Mr Johnson points to your age and rehabilitative prospects as justifying some deduction in the sentence, but I am not prepared to accept that. You are now aged 28. You were 27 at the time of the offending so youth does not really come into it. If there

are good rehabilitative prospects for you then that is well and good, and I hope Mr Johnson is correct about that, but there is nothing before me to justify any specific deduction recognising that.

[12] You maintain your innocence but you will appreciate I can place no weight on that today. I note that you have a good work record in the past and you also have strong family support. They were present at your trial. They are not here today but that may simply be because they did not realise the sentencing would take place at this

time or in this particular Court.

[13] As far as the sentence goes the Crown is effectively asking me to adopt the same starting points as adopted by Judge Moses when he sentenced your brother. If anything I thought that was overly generous. At the same time it makes sense from a parity point of view and I am therefore going to adopt that approach.

[14] The sentence then is arrived at this way. I adopt a starting point of four years six months for the aggravated robbery. I add on two months for the demanding with menaces to take me to four years and eight months’ imprisonment. That will be the sentence on the aggravated robbery charge. I sentence you to nine months on the demanding with menaces charges. The sentences run together so the effective sentence is four years eight months’ imprisonment.

J E Macdonald

District Court Judge