Harraway v Police

[2018] NZHC 761

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000002 [2018] NZHC 761

BETWEEN

DANIEL ROBIN HARRAWAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

9 April 2018

Appearances:

A Dawson for the Appellant

R D Smith for the Respondent

Judgment:

20 April 2018

JUDGMENT OF NATION J

Introduction

[1]    The appellant (Mr Harraway) appealed against a sentence of 2 years’ imprisonment imposed by Judge Turner 20 on 21 December 2017.1 The sentence was imposed in respect of nine charges:

(a)        Burglary;

(b)        Unlawful possession of a firearm;

(c)        Unlawfully taking a motor vehicle (x 4);

(d)        Theft (x 2); and

1      New Zealand Police v Harraway [2017] NZDC 29349 [sentencing decision]

HARRAWAY v POLICE [2018] NZHC 761 [20 April 2018]

(e)        Driving whilst disqualified (third offence).

[2]    Mr Harraway argued that the sentence was manifestly excessive. Specifically, his counsel submitted that the trial Judge adopted a sentence for the burglary and firearm offences that was too high in the circumstances. The other starting points were not challenged, nor was the Judge’s deduction for totality, remorse and guilty pleas.

Summary of facts

[3]    This indicated Mr Harraway was being sentenced for the following events, occurring over 11 days:

(a)        18 August 2017 - the appellant entered a parked bus in Dunedin and took approximately $230 in cash from the cash box;

(b)        19 August 2017 - the appellant took a vehicle which the driver had temporarily left the keys in to enter a shop. He drove the vehicle around Dunedin and between Waimate and Dunedin from 19 August 2017 until dumping it in Dunedin on 23 August 2017;

(c)        20 August 2017 - the appellant filled the vehicle with $78.70 worth of diesel and left the petrol station without paying;

(d)        24 August 2017 - the appellant took another vehicle in Dunedin while the owner was in a nearby shop, before abandoning it a short while later in Waimate;

(e)        25 August 2017 - the appellant took another vehicle, dumping it in Morven (a small settlement on state highway 1, not far from Waimate) when it ran out of fuel. He then went to a nearby address belonging to an ex-employer and currently used by farm employees. He took another vehicle and then drove to a farm where he had formerly been employed. He stole from an out-building there a rifle and ammunition and then returned in the vehicle to Dunedin; and

(f)         29 August - the Police arrested the appellant. When they searched the vehicle, they found the rifle down the side of the passenger seat within easy reach of the driver. Ten rounds of ammunition were in the magazine.

Reports

[4]    As requested by the Court, a psychiatrist, Dr Crouch, provided a report, pursuant to s 38 Criminal Procedure (Mentally Impaired Persons) Act 2003, dated 24 October 2017. The psychiatrist reported that Mr Harraway had told her he always felt suicidal and was constantly planning how to end his life. It referred to earlier periods, beginning in 2000, when he had been admitted to hospital with suicidal ideation. Mr Harraway was admitted as a voluntary patient to Wakari Hospital on 27 July 2017. On 17 August 2017, while on authorised leave, he spoke to a psychiatrist and said he planned to stay at a backpackers. He gave assurances as to his safety and was to follow up with Emergency Psychiatric Services the next day. He did not do so. On 21 August 2017, Mr Harraway contacted Emergency Psychiatric Services saying he was going to end his own life.

[5]    Dr Crouch said that, overall, Mr Harraway was “a somewhat difficult historian” but that he presented with chronic symptoms of low mood and suicidal ideation, and had a history of past attempts on his own life and threats of self-harm. He had failed to engage in psychiatric care in both community and hospital settings. She said he suffered from chronic symptoms of low mood and suicidal ideation, and was experiencing those symptoms at the time of the offending.

[6]    The Department of Corrections’ pre-sentence report, dated 16 November 2017, reported that, in relation to the summary of facts, Mr Harraway said he was in a “bad space, couldn’t remember all of the offending but admitted he was culpable” and referred to his having been released from Wakari Hospital at the time of the offending, having been there for a number of weeks suffering from depression due to his relationship break down, separation from his children and financial difficulties due to unemployment. The report made no mention of his speaking to the probation officer of any intention to commit suicide at the time of the offending. It appears from the report that the probation officer had not seen or known of the psychiatric report which

had been provided to the Court. Mr Harraway was assessed as being at moderate likelihood of general offending but high likelihood of vehicular offending. His risk of harm to others was described as moderate.

The District Court Judge’s sentencing

[7]The Judge came to a starting point of 50 months based on the following:

·      Unlawfully taking a motor vehicle (x4)2  – starting point 15 months;

·      Burglary3 – starting point 30 months (uplift);

·      Unlawful possession of a firearm4 – dealt with globally alongside the burglary charge;

·      Theft (x2)5  – starting point two months (uplift); and

·      Driving whilst disqualified6  – starting point three months (uplift).

[8]    From the 50 months’ imprisonment, the Judge reduced the amount by 10 months with regard to the totality principle. A further reduction of 40 per cent was given for Mr Harraway’s mental health condition, remorse and an early guilty plea.

[9]The sentence was implemented through concurrent sentences as follows:

·      Burglary – 24 months’ imprisonment;

·      Unlawful possession of a firearm – 12 months’ imprisonment;

·      Unlawful taking of a motor vehicle (x4) – 15 months’ imprisonment;

·      Theft (x2) – two months’ imprisonment; and

2      Crimes Act 1961, s 226(1). A maximum sentence of 7 years’ imprisonment.

3      Crimes Act 1961, s 231(1)(a). A maximum sentence of 10 years’ imprisonment

4      Arms Act 1983, s 51. A maximum sentence of 3 years’ imprisonment.

5      Crimes Act 1961, ss 219 and s223(d). A maximum sentence of 3 months’ imprisonment.

6      Land Transport Act 1998, ss 32(1)(a) and 32(4). A maximum sentence of two years’ imprisonment.

·      Driving while disqualified – three months’ imprisonment and disqualified for one year and one day.

[10]   In arriving at a starting point of 15 months’ imprisonment for the unlawful taking charges, the Judge referred to a number of High Court decisions.7 In arriving at a starting point for the burglary and firearms offending, he referred to the view that burglaries of residential properties, when a moderate amount of property was taken, attracted starting points of between 18 months and two years. He accepted the submission for Mr Harraway that the prospects of his encountering the owner of the property were reduced because the building entered was an out-building. The Judge referred to the Court of Appeal’s judgment in Pue v R as indicating a starting point of 18 months was available when loaded firearms were found within easy reach of a defendant in a vehicle.8

Principles on appeal

[11]   An appellant is able to appeal the sentence imposed as of right.9 The High Court, as the first appeal Court, will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.10

[12]   If the sentence under appeal can be properly justified, having regard to the relevant sentencing principles, this Court may not merely substitute its own views for those of the sentencing Judge. The exercise of the sentencing Judge’s discretion can only be interfered with if the sentence imposed was manifestly excessive. Toogood J captured the essence of the test in Larkin v Ministry of Social Development saying:11

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

7      O’Sullivan v Police [2015] NZHC 2032; Riini v Police [2016] NZHC 2218; O’Rourke   v Police

[2016] NZHC 273; Fox v Police [2017] NZHC 573.

8      Pue v R [2014] NZCA 273.

9      Criminal Procedure Act 2011, s 244.

10     Criminal Procedure Act 2011, ss 247 and 250.

11     Larkin v Ministry of Social Development [2015] NZHC 680 at [26], citing Ripia v R [2011] NZCA 101 at [15].

[13]Similarly, in Tutakangahau v R, the Court of Appeal held that:12

…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

[14]   In addition to the identification of error, the appellant must persuade the appeal court that the ultimate sentence imposed was outside the range available to the sentencing Judge.

Submissions for the appellant

[15]   Mr Dawson, for Mr Harraway, submitted that, because the starting point adopted for the burglary and firearms charges was too high, the ultimate sentence was manifestly excessive. Mr Dawson said it was appropriate for the Judge to deal with both charges as one in arriving at the sentence but submitted, on that basis, the 30 months starting point was too high.

[16]   Mr Dawson referred to factors listed by the Court of Appeal in R v Nguyen and the Judge’s statement that a burglary of a residential property, where a modest amount of property was taken, usually attracts starting points of between 18 months and two years.13

[17]   Mr Dawson submitted that the starting point for this burglary should have been at the lower end of the spectrum. This was because all that was taken was the firearm; no damage was caused; the burglary was of an out-building (thus reducing the risk of a confrontation with the owner) and the burglary has not had a significant impact on the owner.

[18]   Mr Dawson referred the Court to Yukich v R.14 There, the Court of Appeal dealt with an appellant who had burgled a farmhouse, stealing eight shotguns, three pistols, ammunition, alcohol, meat and groceries. The trial Judge took a starting point in that case of 20 months which was approved on appeal.

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

13     R v Nguyen CA 110/01, 2 July 2001.

14     Yukich v R [2010] NZCA 499.

[19]   Mr Dawson said that, with due regard to R v Nguyen and the decisions of Yukich v R and R v Inia, an appropriate starting point for this offending for the burglary would have been in the region of 10 to 12 months’ imprisonment.15

[20]   Mr Dawson suggested the Judge’s reference to the Court of Appeal judgment in Pue v R, as indicating that a starting point up to 18 months’ imprisonment was available where loaded firearms were found within easy reach of a defendant in a vehicle, was not appropriate as the focus of the Court of Appeal judgment had been on whether or not a sentence of home detention should have been imposed in that case rather than the 18 months imprisonment.16 He also submitted there were significant differences with the case in that, in Pue, the possession of the firearm was associated with methamphetamine dealing and others were associated with the same offence.

[21]   Mr Dawson submitted that Mr Harraway did not intend to use the firearm for any nefarious purpose and there was nothing to indicate he would harm a member of the public. He submitted that six months would have been an appropriate starting point for the firearms charge so that, taken together, an uplift of only between 16 and 18 months for the firearms and burglary charges would have been appropriate.

[22]   Mr Dawson thus submitted that an appropriate starting point should have been between 36 and 38 months rather than the 50 months adopted by the Judge for all offending. Accepting the appropriateness of other uplifts and discounts, he submitted this should have resulted in a sentence of between 14 and 16 months, with a result that the 24 months sentence was manifestly excessive.

Respondent’s Submissions

[23]   For the respondent, Mr Smith submitted the possession of the firearm and ammunition was not as benign as has been submitted for the appellant. He submitted that the Court of Appeal’s judgment in Yukich was more about whether the appellant should have been treated consistently with his co-defendants for whom a 20 month starting point had been appropriate. He suggested that R v Inia should not be taken as

15     R v Nguyen, above n 13; Yukich v R, above n 14; R v Inia [2010] NZCA 499.

16     Pue v R, above n 8.

some sort of guideline judgment. Mr Smith referred to the judgments of the High Court in Shierney v Police and Powell-Collins v Police, as indicating that a starting point of 24 months’ imprisonment for the burglary was within range, particularly so because it was committed with intent to acquire a firearm.17 He emphasised that the unlawful possession of a firearm and ammunition had to be treated as separate from the burglary because Mr Harraway was found to be in possession of the loaded firearm some four days after the burglary.

[24]   Mr Smith thus argued that, taken together, an uplift of 30 months for both offences had been appropriate. He also emphasised that, on an appeal, a Court’s focus must be on the end sentence. He submitted the Judge’s reduction for totality of 20 per cent was generous, as was the 40 per cent reduction for mental health, remorse and a guilty plea.

Discussion

[25]   In Arahanga v R, the Court of Appeal indicated a broad sentencing range for burglaries of dwelling houses:18

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of 18 months to two years and six months’ imprisonment.

[26]   I consider a starting point of 24 months for just the burglary would have been within range. As Mr Dawson responsibly acknowledged, the burglary was pre- meditated. On 24 August 2017, Mr Harraway had driven in a stolen car from Dunedin to Waimate. There, he was involved in taking two further vehicles, the second of which he took from an address of an ex-employer before driving to another address where he took a .22 rifle and ammunition that he knew would be hidden in a farm out- building. From there, he drove back to Dunedin. As Mr Dawson again acknowledged, the burglary did involve a breach of trust in that Mr Harraway was taking advantage of the knowledge he had from his previous employment.

17     Shierney v Police [2014] NZHC 2963; Powell-Collins v Police [2017] NZHC 1644.

18     Arahanga v R [2012] NZCA 480 at 78].

[27]   The Court of Appeal have said that burglary of a residence is a significant aggravating feature because of the heightened risk of confrontation with the occupants but I do not consider that, for that reason alone, the burglary of a farm out-building should be treated as significantly less serious. From the summary of facts, it would appear Mr Harraway entered the out-building during the day, so there must have been some risk that someone from that farm could have been in the vicinity. Farmers and the owners of other rural buildings are, in a sense, also especially vulnerable as far as burglaries are concerned. They do not normally have such buildings under constant surveillance and must rely on the general honesty of all members of the public and the respect which is normally afforded to their property. In that sense, any burglary of a farm out-building means the offender is taking advantage of a property owner who is particularly vulnerable to burglary and who has to trust everyone in the community to respect their property.

[28]   In Shierney v Police, Mr Shierney and an associate entered a residential property in Auckland.19 The occupants were overseas. They stole numerous items, including jewellery and electronic products. On the same night, but the following morning, they returned to the residence. They forced open a metal locker and removed high-powered rifles and ammunition. They realised they were being observed by a neighbour, hurriedly decamped and ultimately dumped the rifles and ammunition in a recycling bin. The sentencing Judge in the District Court treated the theft of the firearms as being opportunistic but noted a number of other aggravating features associated with the burglary, all features that do not apply here. On that basis, he adopted a starting point for the burglary of three and a half years’ imprisonment and said that, if the property had been targeted to steal firearms, the starting point would have been five years’ imprisonment. In dismissing the appeal against sentence, Woolford J in the High Court said the appellant and his co-offender did take firearms from the property with the intention of dealing with them and the sentencing Judge was accordingly able to elevate burglary from the normal starting point of 18 months to two and a half years’ imprisonment, set in Arahanga v R.20

19     Shierney v Police, above n 17.

20     Arahanga v R, above n 18.

[29]   In the burglary here, the appellant may not have intended to deal with the firearms, as was the case in Shierney, but the property was targeted to obtain a firearm.

[30]   The Judge was also entitled to increase that starting point for the offence of being in possession of the firearm and ammunition. It is significant that Mr Harraway was found to be in possession of that firearm four days after the firearm had been taken. He was found to be in possession of it in Dunedin early in the afternoon. It  was in the car he had unlawfully taken and was using. It was down the side of the passenger seat, within his reach. Significantly, it was in a loaded state with 10 rounds. The summary of facts referred to his having taken a Rugar .22 rifle and ammunition that he had known was hidden in the farm out-building. It thus appears from the summary facts that he had not only kept the firearm for a number of days but that he had loaded the rifle, significantly with more ammunition than would have been necessary had his only intention been to use it to commit suicide.

[31]   In Pue, the Court of Appeal’s judgment was consistent with their agreeing with a starting point sentence of 18 months for the possession of a firearm in the particular circumstances of that case. The sentencing Judge had then allowed a 10 per cent discount for lack of previous convictions, to arrive at an end sentence of one year and four months. The Court of Appeal substituted a sentence of eight months’ home detention, but this was consistent with the starting point adopted by the sentencing Judge. The circumstances of that offence were more serious than with Mr Harraway but, here, that was reflected in the sentencing Judge’s uplift of 30 months for both the burglary and firearms offences.

[32]   Mr Harraway’s possession of a loaded firearm was the more serious because of all the circumstances he was in at the time. He had been involved in a spate of unlawful takings of motor vehicles. On 23 August 2017 at approximately 2.00 am, he had been in the student area of Dunedin city and was recorded on a CCTV camera going in and out of properties in that area. On 25 August 2017, at Morven near Waimate, he had entered an address belonging to an ex-employer and then used by farm employees. It was from there that he unlawfully took the vehicle he used when committing the burglary from a nearby farm building.

[33]   With the mental state he was in after he had obtained the firearm and with his other unlawful actions around that time, there was a real risk that he could have ended up using the firearm in a way that would have been dangerous for others. He told the psychiatrist he had known what he was doing but, in the state he was in, did not care about the consequences. With his psychiatric history, he should never have been in possession of any firearm, let alone one loaded with 10 rounds of ammunition.

[34]   An uplift of six months for the firearms offence on a sentence of 24 months for the burglary would have been within range. Accordingly, I do not consider the 30 months starting point, adopted by the Judge for both offences, was excessive.

[35]   I also agree with Mr Smith’s submission that the discount of 10 months on 50 months for totality was generous.

[36]   Mr Harraway was facing only one charge of driving while disqualified. On the summary of facts, this driving while disqualified had occurred on at least five separate days, it involved his driving significant distances, both around Dunedin and also between Dunedin and Glenavy and Waimate, despite the fact Mr Harraway was a disqualified driver. He could have been charged with five separate offences in this regard. His previous convictions for driving while disqualified included convictions for two offences of driving contrary to a limited licence on 14 June 2016 and 16 November 2016.

[37]   He had unlawfully taken four different motor vehicles over different days. He had used the first vehicle taken on 19 August 2017 over the next few days to drive back and forth between Dunedin and Waimate. He had also driven the separate vehicles unlawfully taken on 24 August 2017 to drive between Waimate and Dunedin. The starting point uplift of 15 months for the unlawful takings of a vehicle could have been higher.

[38]   The appellant was being sentenced for distinct and separate sorts of offending, on separate and distinct occasions. The observation of Gendall J in the Court of Appeal in R v Hoy is pertinent.21   There, he said:

21     R v Hoy CA63/02, 23 July 2002.

It needs to be remembered that the application of the totality principle does not equate to giving a “discount for bulk offending”. Depending on the nature and extent of offending a proper sentencing approach to the overall seriousness of the particular crimes might, and often does, require a sterner sentence.

[39]   There was nothing in either the detailed psychiatric report which was before the Court or in the pre-sentence probation report to indicate that Mr Harraway had any particular remorse for what he had done or any particular empathy for those who were the victims of his offending. The probation officer reported only that he believed the offending was out of character for him and he was surprised and embarrassed at what he had done. The probation officer said there had been no offer of reparation during the course of her discussion with the appellant.

[40]   It seems the appellant’s judgment was partially impaired through his low mood but the psychiatric report indicates that he knew what he was doing was wrong but did not care about the consequences. The Judge’s discount of 40 per cent for the early guilty pleas, remorse and his mental health condition thus could have been less.

Conclusion

[41]   For all these reasons, I have not been persuaded there was any error in the way the Judge sentenced the appellant or that a different sentence should have been imposed.

[42]The appeal is dismissed.

Solicitors:

Public Defence Service, Dunedin RPB Law, Dunedin.