Harding v The Queen
[2017] NZCA 538
•21 November 2017 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA152/2011 [2017] NZCA 538 |
| BETWEEN | BROWNIE JOSEPH HARDING |
| AND | THE QUEEN |
| Court: | Harrison, Lang and Ellis JJ |
Counsel: | Applicant in person |
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 v Cramp [2009] NZCA 90 at [26].
[6]R v Medway [1976] QB 779 (CA).
[7]R v Smith [2003] 3 NZLR 617 (CA).
In considering whether exceptional circumstances exist:[8]
… the Court will have regard to the importance of finality in criminal cases, the circumstances in which the Notice of Abandonment was given, and the necessity for an applicant for such an order to satisfy the Court that the reasons for the application are of an exceptional nature.
The appeal
[8]R v Bridgeman CA87/04, 10 November 2005 at [9].
As we have said, Mr Harding is now self-represented. He filed submissions on his own behalf. He acknowledges that sentencing judges need to take into account previous convictions, but maintains that the six-month uplift in his case was a breach of s 26(2) of the New Zealand Bill of Rights Act 1990, which protects against double jeopardy, because the previous convictions arose out of the same incident. He says he had served his time for those and should not have been punished for them again. He says that the fact that the sentence has been served is irrelevant. He also says that Mr Edgar advised him at the time that he could not get legal aid, so suggested he abandon the matter until he could afford counsel.
Decision
We agree with Ms Grau that Mr Harding’s case falls well short of the high threshold that must be met in such cases. Mr Harding was represented by counsel. Mr Harding signed the notice of abandonment, his signature was witnessed, and the notice was filed by counsel. It is not possible to regard the abandonment as other than a deliberate and informed decision.
Nor do we consider that the interests of justice require reopening. Mr Harding has long since finished serving the relevant sentence. The grounds of appeal are far from strong. Had he been sentenced at the same time for all charges arising out of the 17 June 2009 offending, the judge would have been entitled to uplift for totality. Moreover, Mr Harding’s previous convictions were not limited to the breaches of protection orders for which he was sentenced in 2009. They included three for common assault (1996 and 2004), one for injuring with intent to injure (1997) and one for assault with intent to rob (1994). Judge Harvey’s notes make it quite clear that it was these convictions he was taking into account when imposing the uplift.[9]
[9]R v Harding, above n 4, at [12].
The District Court Judge was required by s 9(1)(j) of the Sentencing Act 2002 to take previous convictions into account, having regard to their seriousness and relevance. Previous convictions are regarded as relevant if they indicate a tendency to commit the kind of offence for which an offender is being sentenced.[10] Mr Harding’s convictions indicated a tendency to commit violent offending. The Judge’s view that an uplift was required for the purposes of personal deterrence and community protection could not be said to give rise to a miscarriage of justice.
Result
[10]Te Hau v R [2013] NZCA 431 at [18].
The application for leave to withdraw the notice of abandonment is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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