Harding v R - [2020] NZSC 127

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 63/2020
[2020] NZSC 127

BETWEEN	BROWNIE JOSEPH HARDING Applicant
AND	THE QUEEN Respondent

SC 64/2020
BETWEEN	BROWNIE JOSEPH HARDING Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	R N Park for Applicant E J Hoskin for Respondent
Judgment:	17 November 2020

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

BThe application for leave to appeal against conviction is dismissed (Harding v R [2019] NZCA 259).

C The application for leave to appeal against sentence is granted (Harding v R [2020] NZCA 217). The approved question is whether the Court of Appeal was correct to dismiss the appeal against sentence.

DThe Registrar is to set down the appeal against sentence to be heard together with the appeal against sentence in Berkland v R [2020] NZSC 125.

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REASONS

Introduction

Mr Harding was sentenced to 28 and a half years’ imprisonment with a minimum term of 10 years’ imprisonment after pleading guilty to 11 charges relating to the manufacture and distribution of methamphetamine.[1]
[1]R v Harding [2017] NZHC 675 (Moore J) [Sentencing remarks].
Mr Harding appealed to the Court of Appeal against conviction and sentence. His conviction appeal was brought on the ground that leave should have been granted by the sentencing Judge, Moore J, to vacate four of his guilty pleas (all of which related to manufacturing charges).[2] That appeal was dismissed.[3] The hearing of his appeal against sentence was postponed pending the outcome in Zhang v R, which dealt with the sentencing levels for methamphetamine-related offending.[4] It was then argued on appeal that Zhang altered sentencing levels for Mr Harding’s offending. The appeal against sentence was dismissed by a differently‑constituted panel.[5]
[2]Harding v New Zealand Police [2017] NZHC 1188.
[3]Harding v R [2019] NZCA 259 (Courtney, Venning and Lang JJ) [CA judgment (conviction appeal)].
[4]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[5]Harding v R [2020] NZCA 217 (Goddard, Ellis and Brewer JJ) [CA judgment (sentence appeal)].
Mr Harding now seeks leave to appeal to this Court against conviction and sentence. The applications for leave to appeal are out of time but there is no objection to our granting an extension of time and we do so. Leave to appeal against sentence is granted on the question set out below at [17]. We now give brief reasons for declining leave to appeal against conviction.

Background

The background is set out in detail in the judgment of the Court of Appeal on the conviction appeal.[6] For present purposes, we need only note the following. Mr Harding was arrested in December 2014 along with several others, including family members. The arrests followed an investigation by what was then known as the Organised & Financial Crime Agency New Zealand into the manufacture and distribution of methamphetamine in Northland. This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harding v R

Details

AGLC: Harding v R [2020] NZSC 127
Case: [2020] NZSC 127
Decision Date: 17 November 2020

CaseChat Overview and Summary

Brownie Joseph Harding sought leave to appeal against his conviction and sentence in the Supreme Court of New Zealand. The Court of Appeal had previously dismissed both his appeal against conviction and sentence. The appeal against conviction was dismissed on the basis that the applicant had not demonstrated a substantial miscarriage of justice. The appeal against sentence was dismissed on the basis that the Court of Appeal was correct to find that the sentencing levels for methamphetamine-related offending had not been altered in a way that affected the applicant’s sentence. The Supreme Court granted the application for an extension of time to apply for leave to appeal and dismissed the application for leave to appeal against conviction. The Court granted the application for leave to appeal against sentence on the question of whether the Court of Appeal was correct to dismiss the appeal against sentence. The Registrar was directed to set down the appeal against sentence to be heard together with the appeal against sentence in Berkland v R.
The Supreme Court found that the proposed conviction appeal would have the Court revisit matters dealt with by the Court of Appeal. There was no challenge to the principles applicable to vacating a plea applied by the Court of Appeal. Rather, the challenge would be to the Court of Appeal’s assessment of the facts. The Court found that there was evidence from the applicant’s counsel as to the steps she had taken to ensure the applicant understood the elements of the offence. The Court of Appeal observed that the advice on these matters “was imparted over the course of several months” and the counsel’s evidence was supported by her contemporaneous file notes. The Court of Appeal also found that the applicant had accepted that manufacturing occurred on the occasions in issue and he did not say only ephedrine had been extracted. The Court of Appeal rejected the suggestion there was any improper influence by the applicant’s counsel. Nothing raised by the applicant gave rise to an appearance of a miscarriage of justice in relation to the Court of Appeal’s assessment of the facts. The criteria for leave to appeal were accordingly not met in relation to the conviction appeal.

Orders