Harris v R [2017] NZHC 1404 (22 June 2017)

Last Updated: 8 August 2017

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2017-419-000016 [2017] NZHC 1404

BETWEEN	CHERIE JANINE HARRIS Appellant
AND	THE QUEEN Respondent

Hearing:	22 June 2017
Counsel:	G A Walsh for the Appellant J E Tarrant for the Respondent
Judgment:	22 June 2017

_{JUDGMENT OF WOOLFORD J}

Solicitors: Almao Douch (Crown Solicitor), Hamilton

Gavin Boot Law, Hamilton

HARRIS v R [2017] NZHC 1404 [22 June 2017]

[1] Ms Harris pleaded guilty to one charge of assault with intent to injure and one charge of theft. She was sentenced to a term of 18 months imprisonment by Judge Spear in the District Court on 24 February 2017.¹

[2] She now appeals that sentence.

[3] The appeal is out of time. However, the Court may grant leave to appeal if it is in the interests of justice.² For reasons that will become apparent, I consider granting leave is appropriate in this case.

Background facts

[4] Ms Harris was staying at the victim’s address with her son following eviction

from her own property.

[5] The victim gave her EFTPOS card and PIN number to Ms Harris to buy petrol. When the card was declined due to insufficient funds, Ms Harris and her son returned to the victim’s address and Ms Harris confronted the victim. During the confrontation, she grabbed the victim by her hair and punched her approximately five times in the head. She pushed the victim, causing her to fall and strike her head on a nearby table.

[6] Ms Harris then kicked the victim approximately six times to the head. She called her son into the room, who also kicked the victim approximately five times to the head.

[7] Ms Harris and her son then left with the victim’s phone and gaming console,

together worth around $500.

District Court judgment

[8] Judge Spear in the District Court took a starting point of 22 months imprisonment for the lead offence of assault with intent to injure. He uplifted the

_{starting point by one month to reflect the taking of the cellphone.}

¹ _{Police v Harris [2017] NZDC 3744.}

² Criminal Procedure Act 2011, s 248(4)(a).

[9] The Judge viewed Ms Harris’ conduct as particularly uncharitable. He considered that she was neither remorseful nor empathetic. In light of this view he took a stern approach, as the seriousness of the offending required a sentence to hold Ms Harris fully accountable for the harm done and denounce the offending.

[10] He identified no mitigating circumstances other than Ms Harris’ guilty pleas, for which he reduced the sentence by five months (slightly more than 20 per cent).

[11] The Judge did not consider that home detention should be imposed. This was primarily because he considered the offending “demands that this Court treat you exactly for what you have done and that is to send you to imprisonment to reflect upon where your life has reached”, although he also mentioned that he was concerned about the fact that the address proposed for home detention was a

boarding house.³

[12] In respect of Ms Harris’ co-offender, her 18-year-old son, Judge Spear adopted a starting point of 16 months imprisonment, reduced to two years of intensive supervision, 200 hours community work and reparation. Judge Spear considered the co-offender had different personal circumstances as a result of his age and lack of previous convictions.

Submissions

Appellant’s submissions

[13] Mr Walsh for Ms Harris submits that the sentence imposed was manifestly excessive in the following respects:

(a) The starting point adopted by the Judge was too high, and an appropriate starting point would have been 12–18 months imprisonment;

(b) There should not have been an uplift applied in respect of the charge of theft;

³ At [24].

(c) The Judge could have considered a further reduction in sentence having regard to personal circumstances, previous record and good character.

[14] Mr Walsh also questions why a starting point of 16 months was adopted for

Ms Harris’ co-offender (her son) for involvement in the same offending.

[15] He emphasises that it is significant that Ms Harris is 50 years of age and has not previously served a term of imprisonment. He submits that she would have been an appropriate candidate for home detention, but acknowledges that her situation is such that home detention is not at this time a possibility because she lived in a communal boarding house.

Crown submissions

[16] The Crown submits that the offending was serious criminal offending, being a sustained and unprovoked attack. It was a serious breach of trust and goodwill. The Crown submits that the starting point was well within range, and the overall sentence was not manifestly excessive having regard to the totality of the offending.

[17] The charge of theft was a completely separate offence to the assault and required an uplift to reflect Ms Harris culpability.

Approach on appeal

[18] An appeal against sentence is an appeal against a discretion. It must be allowed only if the Court is satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.⁴ An error will be established if the sentence is manifestly excessive or wrong in principle, or if there are exceptional circumstances.⁵ A sentence will be considered manifestly excessive if it is substantially or significantly more severe than it ought to have been

_{having regard to the seriousness of the offending and the culpability of the offender.}⁶

⁴ _{Criminal Procedure Act 2011, s 250.}

⁵ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [31].}

⁶ Tutakangahau v R, above n 3, at [35].

[19] The focus is on the end sentence rather than the process adopted to reach the end sentence. If the end sentence is within range, an appeal court will not tinker with it.⁷ Accordingly:⁸

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.

[20] Mr Walsh submits that the sentence imposed was manifestly excessive. Accordingly, I will consider the appropriate end sentence in order to establish whether the sentence imposed by Judge Spear was manifestly excessive.

Analysis

Starting point

[21] While there is no tariff case for assault with intent to injure, the Court of Appeal held in Tamihana v R⁹ that it is appropriate to consider the principles discussed in Nuku v R, which dealt with injuring with intent.¹⁰ Bearing in mind the bands laid out in Nuku, I am of the view that Ms Harris’ offending falls around the middle of band two. That encompasses offending where three or fewer of the

aggravating factors discussed in that case are present.

[22] Here, there were attacks to the head, there were two attackers, and the attack involved serious violence. On the other hand, I do not consider the attack or the involvement of a second attacker was planned, and the violence, while gratuitous and serious, was not prolonged or extreme and did not result in lasting injuries. This places Ms Harris’ offending toward the middle of band two.

[23] Crown counsel referred to a number of cases in their submissions in the District Court. The defence have identified further relevant case law on appeal. While reference to other cases is useful to ensure consistency, it must be noted that

_{offending of this type occurs in such a wide range of circumstances and gives rise to}

⁷ _{Ripia v R [2011] NZCA 101 at [15].}

⁸ _{Larkin v Ministry of Social Development [2015] NZHC 680 at [26].}

⁹ _{Tamihana v R [2015] NZCA 169.}

¹⁰ Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

such a large number of sentences that surveying numerous decisions is not always determinative. Nonetheless, counsel pointed to the following cases:

(a) Tamihana v R: Mr Tamihana and an associate were outside a bar. The associate punched the victim in the face. The victim fell to the ground, and the associate kicked him. Mr Tamihana then kicked the victim once in the head. The Court of Appeal held that the case fell towards the lower end of band 2 in R v Nuku and the appropriate starting point was a sentence of 12 months imprisonment.

(b) Downes v Police:¹¹ Mr Downes assaulted his partner over a period of over two hours, delivering at least several blows to the head. He was in possession of a knife at the time. The Court of Appeal upheld a starting point of 20 months imprisonment as stern, but not manifestly excessive.

(c) Cameron v Police:¹² Mr Cameron went to his ex-wife’s house, where he found a male friend of his ex-wife. He punched the male victim repeatedly about the face and head causing cuts and bruising, grabbed him in a chokehold, threatened to kill him, then continued to punch him about the head and face. He pursued his ex-wife to a neighbouring property and struck her repeatedly in the legs with a wooden stake. The High Court held the offending fell at the top of band two or the lower end of band three under R v Nuku. It upheld a starting point of 16 months imprisonment for the attack on the male, with an uplift of four months for the attack on his ex-wife.

(d) Kojeunikov v Police:¹³ Mr Kojeunikov attacked the victim at a shopping centre following a verbal altercation between his partner and the victim. He confronted the victim and punched him in the head,

_{knocking him to the ground. He then kicked him when was on the}

¹¹ _{Downes v Police [2016] NZHC 2580.}

¹² _{Cameron v Police [2016] NZHC 2678.}

¹³ Kojeunikov v Police [2013] NZHC 551.

ground. Injuries involved swelling and abrasions, but were minor. The High Court adopted a starting point of 12 months imprisonment.

(e) Taingahue v Police:¹⁴ Mr Taingahue assaulted his wife. He punched her in the face. When she turned away, he hit her three or four times to the back of the head before grabbing her by her hair and punching her several more times in the face. When she escaped, he approached her, grabbed her by her hair and pulled her to the ground. She suffered cuts around the nose and eyes, a broken tooth and sore neck and head. The High Court substituted a starting point of 12 months imprisonment on appeal.

[24] I consider the seriousness of Ms Harris’ offending to fall somewhere between the starting points in the cases cited. At the higher end, Downes involved more serious offending than that of Ms Harris’. The attack was far more prolonged, the victim was more vulnerable, and there was a weapon present. It was more premeditated. This is in line with my view that Ms Harris’ offending falls around the middle of band two in Nuku. On the other hand, I consider that the present offending was more serious than that in Tamihana as it involved more blows to the head, and more serious than Kojeunikov because it involved two attackers.

[25] Accordingly, I consider a starting point of 16 months imprisonment to be appropriate for the lead offence. I cannot see that it was appropriate for the Judge to adopt a starting point higher than any of the cases cited to him. Clearly these were similar instances of offending. The Crown authorities provided at the time involved starting points in the range of 12–20 months imprisonment. The starting point recommended to the Judge by the Crown of 22–24 months imprisonment does not appear to be supported by these authorities. I cannot find anything in Crown submissions to this Court or the District Court to merit a starting point higher than the authorities cited. Nor does the District Court judgment explain the starting point relative to the authorities.

[26] I note that a starting point of 16 months imprisonment is the same as the starting point adopted by the Judge for Ms Harris’ co-offender – her son.

[27] I do not differ from the uplift of one month imposed by Judge Spear in the District Court for theft. It was an aggravating aspect of the offending, and involved theft of items worth approximately $500. This brings the starting point to 17 months imprisonment.

Mitigating factors

[28] I cannot identify any mitigating factors which would warrant a discount other than Ms Harris’s guilty plea. The Judge allowed 20 per cent for Ms Harris’ guilty plea. However, I am of the view that a slightly higher discount - 25 per cent - is appropriate given that Ms Harris pleaded guilty on the day, it seems, that the amended charge notice was filed. Remorse is a separate consideration and not relevant to this discount. Accordingly, after the guilty plea discount I reach an end sentence of 13 months imprisonment.

Community sentence

[29] Given the proposed term of imprisonment is under two years, the Court is obliged to consider a term of home detention.¹⁵ Ms Harris has never previously served a term of imprisonment. While she has several previous convictions, none are violent or particularly serious. All but one occurred at least 18 years ago. In addition, the pre-sentence report considers that Ms Harris poses a low risk of further offending. At 50 years of age with no relevant previous convictions, this offending appears to be somewhat out of character for Ms Harris. Given the one-off nature of the offending, in my view, a sentence of something less than imprisonment would be

more appropriate.

[30] I do not agree with Judge Spear that imprisonment is necessary for the purposes of denunciation in this instance. A sentence of home detention is a significant sentence in its own right, and also serves the purposes of denunciation

and deterrence.¹⁶ This is likely to be particularly true for Ms Harris seeing that she has not previously received a sentence more serious than a fine. Moreover, I am of the view that in assessing the appropriate sentence the Judge appears to have considered the purpose of denunciation to the exclusion of all other principles and purposes under ss 7 and 8. The Court cannot focus only on one purpose to the exclusion of others.¹⁷ A sentence of home detention would be more appropriate in light of Ms Harris’s background, and keeping Ms Harris in the community would offer better prospects of rehabilitation and reintegration.

[31] Unfortunately, home detention at present does not appear to be a viable option, given the only address available to Ms Harris.

[32] I noted that one of the options set out in the PAC report was home detention at an address in Frankton. By minute of 19 June 2017, I requested counsel to confirm whether or not that Frankton address would still be available to Ms Harris as an address at which she was able to serve a sentence of home detention.

[33] While the police reported to the Probation Service that they had minimal concerns in relation to the defendant residing at the Frankton address, which is a boarding house, a 3M assessment, being an electronic-monitoring feasibility assessment, had been unsatisfactory. The Probation Service has been advised that certain areas of the proposed address have failed the 3M signal test, including the bathroom and the toilet. The address is, therefore, assessed as technically unfeasible.

[34] But for this technical unfeasibility, I would have imposed home detention.

Conclusion

[35] As I have made clear, I consider that the Judge erred in his approach. First, I do not consider that the starting point taken was supported by the authorities cited. Secondly, in my view it was more appropriate to impose the full available discount for a guilty plea. I further note that I have concerns in respect of parity between

_{Ms Harris and her co-offender. The court should not impose two sentences on co-}

¹⁶ _{Osman v R [2010] NZCA 199.}

¹⁷ Fairbrother v R [2013] NZCA 340 at [30].

offenders which would cause a reasonably minded independent observer, aware of all the relevant circumstances, to think that something has gone wrong with the administration of justice.¹⁸ That Ms Harris’ son was involved in the most violent part of the offending, kicking the victim in the head as many times as his mother did, and took the victim’s mobile phone, yet received a starting point of 16 months imprisonment and no uplift for theft, where Ms Harris received a starting point of

22 months imprisonment, may well cause an observer to think something had gone wrong. This is a starting point of around a third less.

[36] In light of that conclusion, the Court should conduct the sentencing exercise again to see if the end sentence was manifestly excessive. I have concluded that

13 months imprisonment would have been an appropriate sentence. This is nearly a third less than the sentence imposed in the District Court. As this cannot be considered mere tinkering, the sentence imposed was, in my view, manifestly excessive.

Result

[37] I allow the appeal. The sentence is quashed and a sentence of 13 months imprisonment is substituted. The release conditions imposed in the District Court are to apply. I also grant leave under s 80I of the Sentencing Act for Ms Harris to apply to commute the sentence of imprisonment to one of home detention if a suitable address is provided.

[38] I note that if Ms Harris was able to provide the Court with a suitable address for home detention, the appropriate home detention sentence would be approximately three months, given that she has already served four months

_{imprisonment.}

_{Woolford J}

¹⁸ R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 22, affirmed in Smith v R [2012] NZCA 224 at [18].