Harre v Police - [2013] NZHC 1740

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-50 [2013] NZHC 1740

BETWEEN ANDREW HARRE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 July 2013

Appearances: R Gowing for appellant
J Rhodes for respondent

Judgment: 10 July 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

ANDREW HARRE v NEW ZEALAND POLICE [2013] NZHC 1740 [10 July 2013]

[1] Mr Harre pleaded guilty in the District Court at Opotiki to charges of aggravated disqualified driving, failing to stop when followed by a red and blue flashing lights, driving a vehicle in a dangerous manner and failing to remain stopped for an enforcement officer. On 13 June 2013, Judge Wolff sentenced Mr Harre to 15 months imprisonment.[1] He also disqualified Mr Harre from driving for periods that are not in dispute on the present appeal.

[1] New Zealand Police v Harre DC Opotiki CRI-2013-092-003014, 13 June 2013.

[2] Mr Harre appeals to this Court against the sentence of imprisonment the Judge imposed. He says that the Judge erred in the manner in which he constructed the sentence, with the result being a sentence that is manifestly excessive.

Background

[3] All of the charges arose as a result of an incident that occurred in the early hours of 14 March 2013. At about 11.55 pm the previous evening, Mr Harre was driving his vehicle along a suburban street in Manurewa when he encountered a police alcohol checkpoint. After speaking to a constable at the checkpoint, he then reversed away at speed and left the scene. A police patrol vehicle followed Mr Harre’s vehicle with both its red and blue flashing lights and siren in operation. Mr Harre refused to stop, and instead drove around the Manukau urban area for approximately 15 minutes. During this time he was travelling at speeds at up to 50 to 60 kilometres per hour over the posted speed limits. When he was eventually stopped, Mr Harre attempted to evade arrest by running from his vehicle. He candidly acknowledged that he was a disqualified driver, and that he had driven away from the checkpoint because of that fact.

The structure of the sentence

[4] Counsel for Mr Harre contends that the sentencing structure adopted by the Judge meant that previous convictions were double-counted when fixing the sentence to be imposed on Mr Harre. He relies in this context on the following
passages from the Judge’s sentencing remarks:[2]
[2] Ibid.

[9] The lead sentence is the charge of driving whilst disqualified, which carries a two year imprisonment. Given that disqualified driving is disqualified driving there could be no really more aggravating feature than the number of previous times you have done it. Aggravating features such as having alcohol as well, or dangerous driving, would usually be added. So starting from the Sentencing Act 2002 consideration that the Court needs to consider the maximum sentence in some cases if it is a serious case of its type, I am satisfied that this is near to the need for a…

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 Harre v Police

Details

AGLC: Harre v Police [2013] NZHC 1740
Case: [2013] NZHC 1740
Decision Date: 10 July 2013

CaseChat Overview and Summary

In the case of Harre v Police, the appellant, Mr Harre, appealed against his sentence of 15 months imprisonment imposed by the District Court at Opotiki. The appeal was heard by Justice Lang in the High Court of New Zealand, Rotorua Registry. Mr Harre had pleaded guilty to charges of aggravated disqualified driving, failing to stop when followed by a red and blue flashing lights, driving a vehicle in a dangerous manner, and failing to remain stopped for an enforcement officer. The sentencing judge, Judge Wolff, had also disqualified Mr Harre from driving for certain periods. The primary issue before the court was whether the sentencing judge had erred in the manner in which he constructed the sentence, resulting in a sentence that was manifestly excessive.

The court considered whether the Judge had double-counted previous convictions when fixing the sentence. The court agreed that the precise manner in which the Judge had constructed the sentence was difficult to ascertain. However, the court found that the starting point of 15 months imprisonment could not be criticised as it reflected Mr Harre’s culpability and previous convictions. The court also found that an uplift of three months imprisonment could be justified to reflect previous convictions for failure to stop and driving with excess breath alcohol, leading to an end starting point of 18 months imprisonment. The Judge had applied a discount for mitigating factors of three months, but the court found that a discount of at least 25 per cent ought to have been applied. As a result, the court considered that an end sentence of 13 months imprisonment was appropriate.

The appeal was allowed to the extent that the sentence of 15 months imprisonment was quashed. In its place, the court imposed a sentence of 13 months imprisonment. All of the other orders made by the Judge remained intact.

Orders