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  offenders  were involved; the offending took place in the early hours of the morning; the premises unlawfully entered were a family home; the victims were, not surprisingly, sleeping. In many ways, Mr Winitana’s entry into the house was a classic “home invasion”.

[8]      By  my  assessment,  a  starting  point  of  two  years  and  three  months’ imprisonment for the burglary offending is called for, with an uplift to that starting point of three months to reflect Mr Harmer’s previous offending.

[9]      I  now  consider  whether  any  personal  circumstances  mean  that  sentence should be reduced.  Counsel for Mr Harmer noted his apparent apology at the time, and suggested that his encouragement to Mr Winitana for them to leave the scene may have prevented further injuries to their victims.  Those are, in the circumstances of an appeal, difficult factors to assess.  Given, however, that the evidential basis for those submissions were remarks reported by one of the victims, I think some acknowledgement  should  be made.    In  my view,  a reduction  of two months  is appropriate.

[10]     An end sentence of two years and four months’ imprisonment is therefore substituted for the original sentence of three years’ imprisonment for burglary, with a concurrent sentence of nine months for the assault charge.

[11]     On the basis of the convictions entered in the District Court, Mr Harmer received a strike warning.   Given the substituted convictions, there is no statutory basis  for  that  strike  warning.    To  the  extent  required,  I  cancel  that  warning

accordingly.

Solicitors:

Public Defence Service, Napier for Appellant

Crown Solicitor’s Office, Napier for Respondent

“Clifford J”