Harnett v Police

[2012] NZHC 751

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-12 [2012] NZHC 751

BETWEEN  AARON GRANT HARNETT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 April 2012

Counsel:         M Hine for Appellant

N Tahana for Respondent

Judgment:      23 April 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Rotorua
Counsel:

M Hine, Rotorua

HARNETT V NEW ZEALAND POLICE HC ROT CRI 2012-463-12 [23 April 2012]

[1]      Mr Harnett appeals against Judge Weir’s decision refusing to vary a sentence

of community work.  That decision was given in the Rotorua District Court on 22

February 2012.  Previously Mr Harnett had been sentenced, on 14 December 2011, to 75 hours’ community work on a single charge of common assault under s 196 of the Crimes Act 1961.   That crime carries a maximum penalty of one year’s imprisonment.

[2]      Judge Weir declined to vary the sentence because he was not satisfied that Mr Harnett’s existing medical condition required him to do so.  Mr Harnett has an extensive list of prior convictions involving offences of violence, threatening behaviour and disobedience of Court requirements.  It is clear that Judge Weir was not persuaded that there should be any change made that would have the effect of imposing a lesser sentence.

[3]      The appeal came before Simon France J on 14 March 2012.   The Judge considered that the information before him was inadequate to determine the appeal properly.  It was adjourned for hearing today on the basis that the community work sentence was suspended meantime.   Simon France J directed that the following information be made available to the Court:[1]

[1] Harnett v New Zealand Police HC Rotorua CRI 2012-463-12, 14 March 2012 at para [3].

(a)       The sentencing file, so that one can understand what information was before the sentencing judge at that time, and what were the reasons for a community work sentence;

(b)       A report from Community Corrections as to the issues, as they see them, for Mr Harnett doing community work.  At the moment there is a hand written letter which says Mr Harnett should apply to cancel the sentence, but more is needed.  Ms Tahana has agreed to arrange that;

(c)       An affidavit from Mr Harnett as to means.  Mr Hine says Mr Harnett can pay a fine.  There is nothing presently which informs me about the reality of that, including past history;

(d)       If available, some focussed medical advice on the actual issue being raised, which is suitability for community work.   A record of Mr Harnett’s self reported concerns will not advance things, so unless there is someone who can comment on them, there is no point in something such as the Court presently has from a medical centre;

(e)       At my suggestion, an application for leave to appeal sentence (out of time).  There should be no expectation as to this, but it will give the Court a proper range of options.

[4]      The sentencing remarks of Judge Moore are now before me.  It is clear that the Judge regarded this as a case in which the criminal justice system’s available responses to the crime were ill-equipped, as a result of Mr Harnett’s medical difficulties.

[5]      While a report is available from Community Corrections, it does not deal adequately with the issue posed by the Judge.

[6]      There is an affidavit from Mr Harnett as to means.  While he is prepared to meet a fine over a period of time, it is clear that such a sentence cannot respond to the relevant crime.

[7]      The medical evidence remains sparse.   Mr Harnett has produced a report dated  9  May  1994  to  demonstrate  that  he  has  “mental  health  issues  of  long- standing”, an excerpt from a report prepared in 1997 and a letter of 10 December

2009 that briefly reports on Mr Harnett’s position of mental health history of bipolar affected disorder but indicated that he appeared stable in his mood at the relevant time.  The real issue in this case is Mr Harnett’s current medical condition.  It may be better, worse or the same as that reported earlier.

[8]      Simon France J also suggested that an application for leave to appeal the sentence out of time be made so that the Court had a proper range of options open to it.  No formal application has been filed but I indicated at the commencement of the hearing that I would treat the appeal as one against sentence and give leave for an appeal to be brought at this stage.  That being so, the appeal against Judge Weir’s decision is rendered moot and that appeal is dismissed.  To regularise the position, I direct that a notice of appeal against sentence be filed and served by 5pm on 26 April

2012.

[9]      After indicating that I would treat the appeal in that way, I made it clear to

Mr Hine, for Mr Harnett, that imprisonment remained an option available to impose

on appeal.  Mr Hine took instructions.  He informed me that Mr Harnett wished to proceed with the appeal, notwithstanding that indication.

[10]     My next  response  to  counsel  was  that,  to  enable  better  evidence  of  Mr Harnett’s present mental health to be obtained, I wished to obtain a report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, for the purpose of determining the type and length of sentence that might be imposed.   This will provide information on which I can base a decision on whether to allow the appeal and, in the absence of any power to remit sentencing to the District Court, would also enable me to sentence, if the appeal were allowed.

[11]     I have had assistance from the Forensic  Liaison Officer for which  I am grateful and express my thanks.  He informs me that an appointment can be made for Mr Harnett to see a psychiatrist at 10am on 7 May 2012 at 1145 Pukaki Street, Rotorua.  A report could then be made available to the Court no later than 14 May

2012.

[12]     I remand Mr Harnett on existing terms of bail to attend for examination at

10am on 7 May 2012 at the stated address, for the purpose of the preparation of an assessment report under s 38 to assist me in determining the type and length of the sentence that ought to be imposed on Mr Harnett.

[13]     The appeal is adjourned for further hearing at 9am on 15 May 2012.   The appeal will be conducted by a video-link.  Counsel and Mr Harnett will be present in Rotorua and I will be present in Auckland.  At that time, I propose to determine the

appeal on a final basis.

P R Heath J