[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…

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 Harraway v Police

Details

AGLC: Harraway v Police [2018] NZHC 761
Case: [2018] NZHC 761
Decision Date: 20 April 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Daniel Robin Harraway appealed against a sentence of 2 years’ imprisonment imposed by Judge Turner. The sentence was imposed in respect of nine charges, including burglary, unlawful possession of a firearm, and driving while disqualified. Harraway argued that the sentence was manifestly excessive, particularly the starting points for the burglary and firearm offences. The court was required to decide whether the sentence imposed by the District Court was within the range that could be properly justified by accepted sentencing principles and whether it was manifestly excessive.

The court examined the principles of sentencing and noted that 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. The court found that the starting point for the burglary was within range, as it was pre-meditated and involved a breach of trust. The court also found that the possession of the loaded firearm was more serious due to the circumstances and the risk it posed to others. The court agreed with the Judge's discount for totality and the early guilty plea, remorse, and mental health condition. Therefore, the court concluded that there was no error in the way the Judge sentenced the appellant and dismissed the appeal.

Orders