Harmer v The Queen - [2016] NZHC 2655

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-19 [2016] NZHC 2655

BETWEEN
ELFENDER-LEE HARMER

Appellant

AND

THE QUEEN Respondent

On the papers

Counsel:

W Hawkins for Mr Harmer
J E Reilly for Respondent

Judgment:

7 November 2016

JUDGMENT OF CLIFFORD J

SUBSTITUTING SENTENCE FOLLOWING PARTIALLY SUCCESSFUL
CONVICTION APPEAL

Introduction

[1] On 13 September 2016 I allowed Mr Harmer’s appeal against convictions for aggravated burglary and assault with a weapon.1 I substituted those convictions with convictions for burglary and assault. Mr Harmer was convicted as a party to offending by a Mr Winitana.

[2] When arguing Mr Harmer’s appeal, his counsel did not make submissions on a substituted sentence. I requested submissions and I have now received those submissions. I proceed to re-sentence Mr Harmer accordingly.

Facts

[3] The facts are sufficiently stated in my appeal judgment. The “aggravated”

nature of the burglary and assault charges reflected the use by Mr Harmer’s

1 Harmer v R [2016] NZHC 2155.

co-defendant, Mr Winitana, of a spade or shovel belonging to the victims. Whilst I accepted that the evidence was not sufficient to establish the necessary knowledge and intent that a weapon would be used as part of the evening’s activities, I concluded Mr Harmer was more than a “mere presence” at the scene of the crime. As I said:2

Rather, the available and fair inference is that he [Mr Harmer] and Mr Winitana, friends and gang associates, went there together for the purpose of confronting Mr Tawhai and, if necessary, of unlawfully entering his house to do that. Again, in all the circumstances, I also think the safe and available inference is that physical violence against Mr Tawhai was within the joint contemplation of Mr Winitana and Mr Harmer.

[4] Therefore, I substituted convictions for the relevant offences without the

“aggravated” element.

Submissions

[5] For Mr Harmer the submission is that a starting point sentence of 18 months’ imprisonment for the burglary offending would be appropriate. That starting point could be properly uplifted by six months to take account of aggravating features both of the offending (entry of a dwelling house in the early hours of the morning and two victims) and of Mr Harmer personally (previous convictions for burglary in 2014 and
2016 respectively). That, two year, sentence could be reduced slightly on account of mitigating factors, principally the apology Mr Harmer was recorded as having made at the time to the female victim and his role in stopping the assault, when he said to Mr Winitana that they should leave.

[6] The Crown called for an end sentence in the range of two to two and a half years’ imprisonment: 18 months to two years on account of the burglary and assault offending, and an uplift of six months on account of Mr Harmer’s personal circumstances. Moreover, the Crown submitted that Mr Harmer did not demonstrate
sufficient remorse to justify a discount to his sentence.

2 At [61].

Decision

[7] This was reasonably serious burglary offending. Two…

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 Harmer v The Queen

Details

AGLC: Harmer v The Queen [2016] NZHC 2655
Case: [2016] NZHC 2655
Decision Date: 7 November 2016

CaseChat Overview and Summary

In Harmer v The Queen, the appellant, Elfender-Lee Harmer, had his convictions for aggravated burglary and assault with a weapon partially appealed. The appeal was allowed, resulting in the substitution of the convictions to burglary and assault. The court was then required to re-sentence Harmer. The appellant's counsel suggested a starting point of 18 months' imprisonment for the burglary, uplifted by six months due to aggravating factors, and slightly reduced due to mitigating factors such as Harmer's apology to the victim and his role in stopping the assault. The Crown argued for a sentence within the range of two to two and a half years, with no discount for remorse.

The court assessed the seriousness of the offence, taking into account the involvement of two offenders, the time of the offence, the target being a family home, and the victims being asleep. The court determined a starting point of two years and three months' imprisonment for the burglary, uplifted by three months due to Harmer's previous offending. The court also acknowledged the mitigating factors presented by the appellant's counsel, resulting in a two-month reduction. Therefore, the court substituted an end sentence of two years and four months' imprisonment for the burglary, with a concurrent sentence of nine months for the assault charge. Additionally, the court cancelled the strike warning issued based on the original convictions.

Orders