Harding v The Queen - [2017] NZCA 538

IN THE COURT OF APPEAL OF NEW ZEALAND

CA152/2011
[2017] NZCA 538

BETWEEN	BROWNIE JOSEPH HARDING Applicant
AND	THE QUEEN Respondent

Court:

Harrison, Lang and Ellis JJ

Counsel:

Applicant in person
K S Grau for Respondent

Judgment:

(On the papers)

21 November 2017 at 3.30 pm

JUDGMENT OF THE COURT

The application for leave to withdraw the notice of abandonment is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

In November 2010 Brownie Harding was sentenced to two and a half years’ imprisonment for kidnapping and male assaults female following a jury trial.[1] He filed an appeal against that sentence but, in August 2011, abandoned it. He now applies for leave to withdraw his notice of abandonment.

Background

[1]Police v Harding DC Whangarei CRI-2009-088-3107, 9 November 2010.

The victim was the mother of Mr Harding’s baby son. She was granted a protection order against him in May 2009. She had agreed to meet him on 17 June 2009 for him to see the baby. They had an argument. Mr Harding then prevented her from leaving her car by taking hold of the baby. She tried to grab the baby from him but he pulled her back so she was lying with her head between the two front seats with his forearm across her throat.
Mr Harding was tried on a charge of breaching the protection order, arising from this incident, and sentenced by Judge John D McDonald to five months’ imprisonment on 26 November 2009.[2] He also received a two-month cumulative sentence for a further charge of breaching a protection order in relation to a different victim.
[2]Police v Harding DC Whangarei CRI-2009-088-4721, 26 November 2009.
Then in November 2010, Mr Harding was tried before a jury guilty on further charges relating to the very same, 17 June 2009, incident. The jury found him guilty of kidnapping (unlawful detention of the victim with consent obtained by duress) and one of male assaults female. He was acquitted on an alternative charge of kidnapping (unlawful detention without consent) and one of threatening to kill.
At sentencing, Judge Duncan Harvey adopted a two-year starting point for the lead charge of kidnapping, uplifted by six months for previous convictions.[3] He imposed concurrent sentences of nine months’ imprisonment on the male assaults female charge and three months’ imprisonment on account of remission of fines.[4]
[3]R v Harding DC Whangarei CRI-2009-088-3107, 9 November 2010 at [12].
[4]At [13]–[14].
Mr Harding subsequently filed a notice of appeal against sentence dated 16 March 2011. The appeal was given a fixture date of 6 September 2011. On 26 August 2011 his then-counsel, Mr Edgar, filed a notice of abandonment.

Approach on appeal

In R v Cramp this Court articulated two bases on which an abandoned appeal may be reopened:[5]
(a)When the abandonment is a nullity rather than the result of a deliberate and informed decision.[6]
(b)Under the Court’s inherent power to revisit decisions in exceptional circumstances when the interests of justice require.[7]
[5]R…

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 The Queen

Details

AGLC: Harding v The Queen [2017] NZCA 538
Case: [2017] NZCA 538
Decision Date: 21 November 2017 at 3.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application by Brownie Joseph Harding to withdraw a notice of abandonment of his appeal against his sentence. The appeal related to a sentence of two and a half years’ imprisonment imposed after a jury found him guilty of kidnapping and male assaults female. The Court was required to determine whether the applicant's abandonment of the appeal was a deliberate and informed decision, and if there were exceptional circumstances justifying reopening the appeal.

The Court examined the circumstances of the abandonment and the strength of the grounds of appeal. It noted that the abandonment was signed by the applicant and witnessed, and was filed by counsel, indicating a deliberate and informed decision. The Court also considered the interests of justice, including the importance of finality in criminal cases. The Court found that the applicant's previous convictions, which included multiple violent offences, justified the sentencing judge's decision to impose an uplift for the purposes of personal deterrence and community protection. The Court concluded that the grounds of appeal were not strong enough to warrant reopening the appeal.

The Court declined the application for leave to withdraw the notice of abandonment. The Court ordered that the application be dismissed.

Orders