Harris v Police [2022] NZHC 345 (2 March 2022)

Last Updated: 10 March 2022

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI 2021-488-57 [2022] NZHC 345

UNDER	The Sentencing Act 2002
BETWEEN	TYSON JAYS HARRIS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 March 2022 (by VMR)
Appearances:	M Watkins for the appellant R Annandale for the respondent
Judgment:	2 March 2022

JUDGMENT OF CAMPBELL J

[Appeal against Sentence]

This judgment was delivered by me on 2 March 2022 at 4:00 pm

Registrar/Deputy Registrar

HARRIS v NEW ZEALAND POLICE [2022] NZHC 345 [2 March 2022]

• [1] Mr Harris pleaded guilty to a charge of assault with intent to injure.¹

• [2] On 8 November 2021, Judge H B Shortland sentenced Mr Harris to 10 months’ home detention.² Mr Harris appeals against that sentence. He says it is manifestly excessive, because the Judge did not give enough credit for the amount of time he had spent in custody.

The offending

• [3] At around 1 am on 17 April 2021, Mr Harris and his partner, the victim, had an argument. The victim said she wished to end the relationship. In response, Mr Harris punched her multiple times in the head.

• [4] In an attempt to evade the blows, the victim went to the floor. Mr Harris, while wearing shoes, stood above her and continuously stomped and kicked her head and upper body region. He then punched her in the head again.

• [5] The victim suffered a bloody nose, contusions and abrasions across her face and upper torso. The assault caused her to fear for her life.

District Court decision

Sentence indication

• [6] On 12 August 2021, Judge Shortland gave Mr Harris a sentence indication.³ The Judge referred to both R v Taueki and Nuku v R as the guideline judgments for Mr Harris’ offending.⁴ In terms of those cases, the Judge said aggravating features of Mr Harris’ offending included that he had committed violence against the victim while she was in her home;⁵ she had suffered reasonably serious injuries; and the attack was somewhat prolonged and involved Mr Harris kicking and stomping the victim while wearing shoes.

¹ Crimes Act 1961, s 193. Maximum penalty: three years’ imprisonment.

² Police v Harris [2021] NZDC 21938.

³ Police v Harris DC Kaikohe CRI-2021-027-405, 12 August 2021.

⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA); and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

⁵ On this point, the Judge also had regard to Solicitor-General v Hutchinson [2018] NZCA 162, in which the Court of Appeal identified family violence occurring in one’s home as an aggravating feature.

• [7] The Judge, while acknowledging Mr Harris’ youth, did not see any clear mitigating factors. His Honour therefore considered a starting point of two years and eight months’ imprisonment appropriate, which was then uplifted by two months to account for Mr Harris’ family violence history.

• [8] The final sentence indication was for two years and 10 months’ imprisonment, with Judge Shortland saying discounts for a guilty plea and a report under s 27 of the Sentencing Act 2002 could bring the end sentence under two years’ imprisonment.

• [9] Mr Harris accepted the sentence indication.

Sentencing decision

• [10] In the substantive sentencing decision, Judge Shortland noted that Mr Harris had taken steps to deal with the issues identified in his s 27 report, including by engaging in anger management programmes in prison and learning budgeting skills. He had provided a letter of remorse. The Judge considered these to be mitigating factors in the sentencing exercise.

• [11] The Judge applied discounts of 15 per cent for Mr Harris’ guilty plea,⁶ five per cent for the time Mr Harris had already spent in custody, and 20 per cent in relation to the social deprivation outlined in Mr Harris’ s 27 report. His Honour also had regard to Mr Harris’ remorse, but did not apply a discrete discount for it.

• [12] Those discounts brought the presumptive end sentence down to 20 months’ imprisonment. That brought the sentence within range of home detention consideration.

• [13] The Judge, looking to the least restrictive sentencing outcome possible under the Sentencing Act, found a sentence of 10 months’ home detention to be appropriate.

⁶ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Submissions

• [14] Mr Watkins, for Mr Harris, submits the Judge failed to give sufficient credit for the time that Mr Harris spent in custody. By the time of the sentencing, Mr Harris had spent close to seven months in custody. The five per cent allowance for time in custody, however, amounted to a discount of fewer than two months.

• [15] Mr Watkins submits that the usual practice is that the Court, when giving credit for time spent in custody in calculating a sentence of home detention, will take the time spent and multiply it by two and then deduct that from the presumptive sentence of imprisonment. In Mr Harris’ case, that would mean a deduction of 14 months. Together with the discounts that Judge Shortland gave for the guilty plea and s 27 factors, the sentence before commutation to home detention would be eight months’ imprisonment. Commuted to home detention, the end sentence would be four months’ home detention.

• [16] Mr Watkins submits that an end sentence of ten months’ home detention was therefore manifestly excessive.

• [17] Mr Annandale, for the Police, accepts that the Judge could have allowed a higher credit for the time Mr Harris had spent in custody. But Mr Annandale submits that the s 27 discount that the Judge allowed was generous. He says these two matters balance each other out and the end sentence was not manifestly excessive.

Principles governing sentencing appeals

• [18] A Court will allow a sentencing appeal only if satisfied there is both an error in the sentence and that a different sentence should be imposed.⁷ The Court will otherwise dismiss the appeal.⁸

• [19] To be in error, the sentence generally must be shown to be manifestly excessive or wrong in principle.⁹ The Court will not intervene where the sentence is within the

⁷ Criminal Procedure Act 2011, s 250(2).

⁸ Section 250(3).

⁹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive depends on the end sentence imposed, rather than the process by which it is reached.¹⁰

Issues on appeal

• [20] I have to decide two issues. Did the Judge err by giving insufficient credit for the time Mr Harris spent in custody? If so, was the sentence manifestly excessive?

Did the Judge give insufficient credit for the time Mr Harris spent in custody?

• [21] When an offender is sentenced to imprisonment, s 82 of the Sentencing Act 2002 provides that the Court must not, in determining the length of sentence, take into account any time spent in pre-trial custody. This does not mean that credit is not given for such time spent. Credit is given, but it occurs administratively (and automatically) under s 91 of the Parole Act 2002.

• [22] Those provisions do not apply where a sentence of home detention is imposed. This does not mean that credit is not given for time spent in pre-trial custody. Credit is given as part of the Court’s sentencing discretion, rather than automatically under the Parole Act.¹¹

• [23] In Kidman v R, the Court of Appeal rejected a prescriptive approach towards the determination of credit for time spent in pre-trial custody when imposing a sentence of home detention (namely, deducting time spent, on a “one for one” basis, from the term of home detention that would otherwise be imposed).¹² The Court preferred “a more evaluative approach”.¹³

• [24] It follows that a sentencing Judge should not rigidly apply a “one for one” discount. Nonetheless, cases since Kidman v R have made it tolerably clear that a “one for one” discount is the default (though not rigid) position. The reason for this was

¹⁰ At [36].

¹¹ Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA82.03A].

¹² Kidman v R [2011] NZCA 62, (2011) 25 CRNZ 268 at [12] and [15].

¹³ At [16].

explained by Simon France J in Longman v Police.¹⁴ His Honour said the question was:¹⁵

... what adjustment should be made to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment, for time actually spent in jail in effect serving the same sentence. Seen that way, full equivalence should be the norm.

• [25] His Honour added that full equivalence was consistent with the Supreme Court’s then recent decision in Booth v R (in which the Court emphasised the need for pre-sentence detention to be applied effectively to all sentences).¹⁶ Accordingly, after arriving at a provisional home detention sentence of nine and a half months, Simon France J deducted the four and a half months spent in pre-trial custody, leaving a home detention sentence of five months.¹⁷

• [26] Many cases have adopted the default position proposed by Simon France J in Longman v Police.¹⁸ The default position is also consistent with two recent Court of Appeal cases, Williams v R and Diaz v R.¹⁹ In each case the appellant succeeded in having a sentence of imprisonment replaced by a sentence of home detention. By the time of their successes the appellants had each served some of the sentence of imprisonment. In each case the Court of Appeal effectively gave full credit for the time spent in custody against the sentence of home detention that would otherwise have been imposed.²⁰

• [27] Other cases have taken a different approach, deducting the time spent in pre- trial custody from the proposed term of imprisonment before that term of imprisonment is converted to a sentence of home detention.²¹ Because the period of

¹⁴ Longman v Police [2017] NZHC 2928.

¹⁵ At [9].

¹⁶ Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.

¹⁷ Longman v Police [2017] NZHC 2928 at [14].

¹⁸ See the cases gathered by Cooke J in R v Tai [2021] NZHC 2769 at [37], n 10, and also Doidge v Police [2021] NZHC 3195.

¹⁹ Williams v R [2021] NZCA 333; and Diaz v R [2021] NZCA 426.

²⁰ Williams v R [2021] NZCA 333 at [26]; and Diaz v R [2021] NZCA 426 at [50]. I say “effectively” because in each case the Court’s approach was to allow a credit of double the time spent in pre- trial custody against the term of imprisonment (that the Court had already decided to commute to home detention), then halve (as is usual) the remaining term of imprisonment to determine the term of home detention. This was the approach that Mr Watkins proposed in his submissions. With respect, the approach is rather opaque.

²¹ See the cases gathered by Cooke J in R v Tai [2021] NZHC 2769 at [37], n 9.

home detention is usually calculated by halving the proposed term of imprisonment, on this approach the defendant receives credit, against the term of home detention that would otherwise have been imposed, for only half the time spent in pre-trial custody. In my view this does not give appropriate credit. I prefer, as a default position, the full equivalence proposed by Simon France J.

• [28] I see no reason why that default position should not have been applied here. Mr Harris should have received full credit, against the term of home detention that would otherwise have been imposed, for the almost seven months spent in custody on remand.

• [29] Instead, the Judge gave credit by allowing a five per cent discount against the starting point of 34 months’ imprisonment. This was a credit of 1.7 months. After taking account of all credits, the Judge settled on a term of imprisonment of 20 months. The Judge then, having decided that home detention was appropriate, halved that 20 months to reach a term of home detention of ten months. The end result was that Mr Harris received an effective credit of 0.85 months against the term of home detention for the almost seven months he spent in custody. With respect, that was an error.

Was the sentence manifestly excessive?

• [30] That error does not, in itself, mean the sentence was manifestly excessive. What matters is the end sentence imposed, rather than the process by which it is reached.

• [31] As noted, Mr Annandale submits the error in giving insufficient credit for pre- trial custody was balanced by the Judge’s over-generous 20 per cent discount for the matters raised in the s 27 report. Indeed, Mr Watkins accepts that the 20 per cent discount was excessively generous.

• [32] I must stand back and assess the correctness of the sentence as a whole. There is no challenge to the Judge’s starting point of a sentence of 34 months’ imprisonment. Nor could there be. The Judge’s starting point was clearly available. Mr Harris’

offending was very serious, falling within band three of the applicable sentencing guideline.²² A starting point near the statutory maximum penalty was warranted.

• [33] There is no challenge to the Judge’s 15 per cent discount for Mr Harris’ guilty plea. This was less than the maximum possible allowance of 25 per cent.²³ It was available and reasonable in the circumstances. Mr Harris had not pleaded guilty at the first reasonable opportunity, and it was appropriate that the discount reflect that.

• [34] I next consider the discount for the social deprivation outlined in the s 27 report. Past social, cultural or economic deprivation may diminish an offender’s moral culpability.²⁴ No blanket rules apply:²⁵

Nor is there a clear unifying principle for applying discounts for deprivation. Rather, personal circumstances discounts tend to be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues. “Deprivation” is in many cases difficult to separate from these other factors because it is associated with and explanatory of them. What is tolerably clear, is that larger discounts tend to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender. Mercy is another apparent reason.

• [35] That said, a representative sample of cases shows that deprivation discounts can be between 10 and 30 per cent.²⁶ Judge Shortland allowed a 20 per cent discount. In my respectful view, that discount was excessively generous.

• [36] Mr Harris’ s 27 report discloses that Mr Harris has barely had a relationship with his father, who has been in and out of jail for all of Mr Harris’ life. The report says Mr Harris is dislocated from his whakapapa but is willing to reconnect with it and to learn more about his ancestry.

• [37] Mr Harris is said to have had a difficult relationship with his mother, and one that was sometimes characterised by violent episodes. He bears her a great deal of anger. He sought solace in his wider family, and in doing so was exposed to alcohol

²² Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38(c)].

²³ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

²⁴ Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159]–[162].

²⁵ Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].

²⁶ Paul v Police [2015] NZHC 2583 at [83]; Green v Police [2019] NZHC 2565; Waho v R [2020] NZCA 526; Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; Poi v R [2020] NZCA 312; Minogue v R [2020] NZCA 515; and Kreegher v R [2021] NZCA 22.

and drug use. He began to gravitate towards other troubled children, started smoking cannabis at a young age and became involved in a youth gang. He fell into a life of petty crime, his education suffering in the result.

• [38] The report details Mr Harris’ recent efforts to distance himself from his old behaviours and to advance his career. He has been able to secure trade jobs. In 2015, he completed a building qualification. More recently, he has worked as a painter. He aspires to be an electrician or a builder.

• [39] The report says Mr Harris’ offending took place at a time when he was not working, his family relationships were suffering, he was reliant on cannabis, and he was struggling financially. It identifies trust and infidelity issues in his relationship with the victim as part of the relevant background to his offending.

• [40] Mr Harris is said to recognise that he needs help to make positive changes in his life, including by engaging with rehabilitation programmes, anger management courses and substance abuse courses. He has expressed remorse for his offending and sought a restorative justice conference with the victim. That conference never took place.

• [41] In summary, the report says Mr Harris’ upbringing and issues with addiction have shaped his entire adolescent and adult life. It says these factors “may” explain his offending behaviours and attitudes, but it declines to find that there is a causal nexus between this background and his offending. It says that this is a conclusion for the Court to draw.

• [42] I accept that the matters canvassed in Mr Harris’ s 27 report are likely to have contributed to causally to his offending. Some allowance for those matters is warranted. But I would make less of an allowance than Judge Shortland did.

• [43] Though each case turns on its own facts, some comparator authority assists. I begin with a relatively high-water mark, Poi v R. There, a discount of 20 per cent was awarded for the defendant’s background of “severe deprivation and disadvantage as

well as his rehabilitative prospects and the concrete steps [the defendant was] taking to attempt to address his past trauma”.²⁷

• [44] In Carr v R and Biddle v R, discounts of 15 per cent and 12 per cent respectively were allowed because the s 27 reports disclosed matters that might have impaired the defendants’ choice.²⁸

• [45] In Minogue v R, an offender with a “seriously disadvantaged background”, who had been subjected to extreme violence and for whom alcohol and drug abuse had been normalised, received a 15 per cent discount.²⁹ Similarly, in Kreegher v R, an offender who had been a victim of sexual offending as a child, become subject to gang influences, and who had fallen into drug and alcohol abuse, received a 10 per cent discount for those factors.³⁰

• [46] The defendant’s own actions and decisions remain relevant considerations in the overall assessment.³¹ People with disadvantaged backgrounds do not invariably go on to commit criminal offences.³² The criminal law remains built on the foundations of agency and choice.³³

• [47] Finally, I note that deprivation factors are likely to only have a modest effect on sentence where the offending involves serious violence. In such cases, considerations of denunciation, accountability and community protection will often prevail.³⁴

• [48] Mr Harris has undoubtedly experienced difficulties in his life. But my assessment is that his was a relatively less disadvantaged upbringing than that of the offenders in some of the comparator cases discussed above. I regard the matters set out in Mr Harris’ s 27 report as no more than matters that may have impaired his

²⁷ Poi v R [2020] NZCA 312 at [39].

²⁸ Carr v R [2020] NZCA 357 at [65]–[67]; and Biddle v R [2021] NZCA 57 at [95]–[96].

²⁹ Minogue v R [2020[ NZCA 515 at [47] and [52].

³⁰ Kreegher v R [2021] NZCA 22, (2021) 29 CRNZ 622 at [44]–[47].

³¹ Purua-King v R [2020] NZCA 61 at [9].

³² R v Patangata [2019] NZHC 744 at [45].

³³ R v Cable [2021] NZHC 3129 at [94].

³⁴ Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA27.02]. See Davidson v R [2020] NZCA 230 at [33]; and Keil v R [2017] NZCA 538 at [58].

rational choice. They do not serve to diminish substantially Mr Harris’ moral culpability. His violent offending may have been a product of his background influences, but it was not the inevitable product.

• [49] In those circumstances, I consider the appropriate s 27 discount here would have been in the range of 10 per cent to 15 per cent. I will adopt the top of that range. In doing so I recognise the remorse that Mr Harris has shown. Judge Shortland recognised this remorse but did not allow a specific discount for it.

• [50] It follows that Mr Harris would have been entitled to a total discount of 30 per cent for his guilty plea, the social deprivation factors and his remorse. From a starting point of 34 months’ imprisonment, a putative end sentence of just under 24 months’ imprisonment is reached. Halving that in the usual way, a sentence of just under 12 months’ home detention is reached.³⁵ Credit must then be given for the just under seven months Mr Harris spent in custody. This produces an end sentence of five months’ home detention.

• [51] It follows that the Judge’s sentence of 10 months’ home detention was manifestly excessive.

Result

• [52] I allow the appeal. The sentence of 10 months’ home detention is quashed and replaced by a sentence of five months’ home detention. The home detention conditions and post-home detention conditions imposed by Judge Shortland remain.

Campbell J

³⁵ Mr Annandale did not suggest that home detention was inappropriate. I understand that, likewise, at the sentencing before Judge Shortland, Police did not dispute the appropriateness of home detention.