Harrieder v The Queen
[2020] NZHC 2548
•29 September 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2020-425-27
[2020] NZHC 2548
BETWEEN SVEN STEPHAN HARRIEDER
Appellant
AND
THE QUEEN
Respondent
Hearing: 17 September 2020 Appearances:
H T Young for Appellant
R W Donnelly for Respondent
Judgment:
29 September 2020
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 29 September 2020 at 3.00 pm
Registrar/Deputy Registrar Date:
Introduction
[1] The appellant, Mr Harrieder, pleaded guilty to and was sentenced on charges of possession of cannabis for supply, possession of LSD simpliciter, and failing to give a police officer exercising a search power the passcode for his phone. He was sentenced to 26 months’ imprisonment.1
[2]Mr Harrieder appeals his sentence on the ground it was manifestly excessive.
1 R v Harrieder [2020] NZDC 16138.
HARRIEDER v R [2020] NZHC 2548 [29 September 2020]
Facts
[3] On 25 June 2020, the police executed a search warrant at Deco Backpackers on Man St in Queenstown, where Mr Harrieder was living. The search warrant was executed in relation to suspected supply of controlled drugs by Mr Harrieder and two of his associates.
[4] Upon searching Mr Harrieder’s room police located a significant quantity of cannabis and cash. The cannabis was packaged in zip lock bags, with a total weight of over 2.1 kg. The cannabis was estimated to have a street value of between $27,360 and $54,700. The total sum of cash located was NZ$117,405.80, along with United States and Australian currency, valued at over NZ$800. Also located in a small locked safe were 10 tablets of LSD.
[5] Section 130 of the Search and Surveillance Act 2012 provides a constable exercising a search power can require a person to provide access information, including passwords, to allow the data on a device to be accessed. Police seized four mobile phones and a laptop. When the detective requested the access codes for these devices, Mr Harrieder refused.
District Court decision
[6] Judge Farnan considered the lead offending to be the possession of cannabis for supply charge. The Judge adopted a starting point of three years and two months’ imprisonment for the lead offending. An uplift of one month was applied in respect of the LSD charge, which was viewed as different in kind. A further one month uplift was applied in respect of the Search and Surveillance Act charge. This brought the overall starting point to three years and four months’ imprisonment.
[7] In respect of mitigating factors, the Judge concluded a deduction of 35 per cent for personal factors was justified. This encompassed the difficult time that Mr Harrieder may have in custody, reflective of s 8(g) Sentencing Act 2002 considerations, and taking into account remorse, good character and his guilty plea. This brought the end sentence to 26 months’ imprisonment.
[8] The Judge considered this was the least restrictive outcome and the end sentence did not breach the totality principle. In the Judge’s view, the outcome met the purposes and principles of deterrence and denunciation, while taking into account the desirability of consistence in sentencing levels for similar offending.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal recognised in Tutakangahau v R (quoting the lower court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus on appeal is the end sentence, rather than the process by which the sentence was reached.5
Submissions
Appellant’s submissions
[10] Mr Young, for Mr Harrieder, submitted the starting point for this offending ought to have been between three years and three years, two months’ imprisonment. Mr Young noted the cases relied on by the Crown, when advocating a sentence starting point of three years and two months, involved considerably larger amounts of cannabis.6
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
5 Islam v R [2020] NZCA 140 at [32].
6 See Stuart v Police [2016] NZHC 2988, where 11.58 kg of cannabis attracted a starting point of three years and nine months’ imprisonment. In Hajnal-Huata v Police [2020] NZHC 424, five kg of cannabis attracted a starting point of three years and four months’ imprisonment.
[11] Mr Young referred the Court to R v Scott in which a starting point of three years was adopted for possession of two kg of cannabis, where aggravating factors included the admitted cultivation of cannabis for the past five years and a sophisticated indoor growing operation.7
[12] Mr Young submitted the two month uplift in respect of the LSD and search charges was not warranted, in the context of the serious drug offending as it added little to the overall culpability assessment. It is submitted the LSD was for personal use and added nothing to the culpability when considered in the context of the overall starting sentence for the lead offending.
[13] Mr Young described the Search and Surveillance Act charge as “problematic”, as everyone has the right against self-incrimination and the provision of access codes may, such as in this case, disclose incriminating evidence. That said, Mr Young conceded that the legislation entitles the Police to make such a request. Mr Young expressed concern that the District Court Judge drew negative inferences from Mr Harrieder’s refusal to provide access to the devices, which, in his submission, is again problematic as “ample negative inferences” had been drawn from the quantity of cannabis and the amount of cash found. In Mr Young’s submission, this resulted in a “double counting” in the dealing activity, with the Judge giving additional weight to what may have been on the phone.
[14] Mr Young accepted the discount of 10 per cent for Mr Harrieder’s remorse and status as a foreign national incarcerated in New Zealand is adequate. However, he submitted the Judge erred in not giving a discrete discount for previous good character.
[15] Mr Young submitted the Judge erred when she referred to the onus on Mr Harrieder including an obligation for Mr Harrieder to provide proof of his lack of previous convictions in his home country, Germany.8 This error is said to have stemmed from the Crown’s written submissions suggesting that if Mr Harrieder wished to claim good character, he would need to provide proof.9
7 R v Scott CA170/05, 9 November 2005.
8 R v Harrieder, above n 1, at [11].
9 Based on Sentencing Act 2002, s 24(2)(d).
[16] Several days after the sentencing, Mr Young received a copy of Mr Harrieder’s German criminal record, which shows he has no criminal convictions. Mr Young submits this Court is entitled to take into account this evidence on appeal.
[17] Mr Young noted that if s 24 of the Sentencing Act 2002 is used to require foreign nationals to prove a lack of previous convictions, then injustices will inevitably occur. In his submission there are questions regarding the right of a defendant to access to facilities to prepare a defence and the right to a fair hearing, as guaranteed under ss 24 and 25 of the New Zealand Bill of Rights Act 1990. He submitted it is doubtful the use of s 24 Sentencing Act was intended to be used in relation to criminal records, as New Zealand records are always accessed by police as part of the court process.
[18] Mr Young submitted if this Court reaches a short term sentence of imprisonment, it ought not to be categorised as tinkering. A short term sentence of imprisonment may make a difference to whether Mr Harrieder qualifies for a sentence of home detention.10
[19] Mr Young submitted Mr Harrieder was a good candidate for home detention by reason of his previous record, good character, motivation towards rehabilitation, remorse and support from his parents (who will pay for his accommodation costs).
Respondent’s submissions
[20] Mr Brownlie, on behalf of the Crown, submitted the end sentence was within the available range.
[21] Referring to the guideline judgment of R v Terewi, Mr Brownlie submitted the starting point adopted by the District Court Judge sits within the upper spectrum of band two offending, which indicates a term of imprisonment of between two and four years.11
10 Citing Stuart v Police, above n 6.
11 R v Terewi [1999] 3 NZLR 62 (CA).
[22] Mr Brownlie submitted the LSD charge and Search and Surveillance Act charge increased Mr Harrieder’s overall culpability. The uplifts were modest, having regard to the fact that their impact on the ultimate sentence was reduced by more than a third by virtue of the discounts applied.
[23] Mr Brownlie submitted Mr Harrieder did not provide any information to support a discrete discount for remorse, over that which is inherent in the guilty pleas. He contends the small discount given by the District Court Judge was generous.
[24] He submitted a modest discount, in the realm of five per cent, was available to the Judge in respect of previous good character. In Chai v R the Court of Appeal noted a “modest measure of credit is applicable for an absence of convictions”.12 Referring to Chai, Mr Brownlie submitted that the level of discount must take account of the inescapable inference of previous drug dealing by Mr Harrieder.
[25] In relation to the discount for the consequences of being an overseas national, Mr Brownlie refers to the recent decision Hayden v R.13 The Court of Appeal upheld an eight per cent allowance given to reflect the fact the appellant was serving a sentence of imprisonment in circumstances where he could not be visited by relatives, as a result of the travel restrictions due to the COVID-19 pandemic.14 The Crown accepts similar circumstances apply here, with such factors as the problem of speaking with family via telephone (due to time differences). The Crown accepts a modest discount may have been available to the Judge is respect of these elements.
[26] Overall, Mr Brownlie submits the sentence imposed was not manifestly unjust, and that it was, even if described as stern, within the available range.
Analysis
[27] I note there is a discrepancy in the District Court Judge’s sentencing methodology. Her Honour applies a total uplift of two months in respect of the LSD and Search and Surveillance Act charge when setting the starting point for the
12 Chai v R [2020] NZCA 202 at [29].
13 Hayden v R [2020] NZCA 369.
14 At [57].
offending.15 A discount of 35 per cent was then applied to reflect mitigating factors. At the end of the decision, the Judge sentenced Mr Harrieder “in respect of the lead offending to 26 months’ imprisonment and one month imprisonment in respect of each of the other charges.”16 It is not entirely clear whether the Judge intended the end sentence to be one of 26 or 28 months’ imprisonment.
[28]The lead offending is the possession of cannabis plant of the purpose of sale.
R v Terewi is the tariff judgment in relation to cannabis offending. Category 2:17
… encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
[29] The categories in Terewi, while geared towards cultivation, are equally applicable to supply and sale offending.18 Here, it is clear the operation was for a commercial purpose. There was over $117,000 in cash located in Mr Harrieder’s room. I accept the Crown submission that the amount of cash seized is indicative of an ongoing and successful commercial operation. I consider the offending falls within category 2 of Teweri.
[30] A lower starting point may be justified where sales are infrequent, and of a limited extent.19 I am not satisfied that is the situation here. Having regard to the cases referred to by counsel,20 I consider the Judge’s starting point of three years and two months’ imprisonment was within range to reflect the overall culpability of the offending.
[31] While the LSD possession charge is drug related offending, I consider this to be distinct from the possession of cannabis for supply. Accordingly, an uplift of one month imprisonment was appropriate. While it is arguable the Search and Surveillance Act breach was connected to the overall cannabis offending, I consider an uplift of one month imprisonment was also within range. On this basis, the Judge’s
15 Police v Harrieder, above n 1, at [41].
16 At [59].
17 R v Terewi, above n 11, at [4].
18 Bishop v R [2010] NZCA 66 at [19].
19 R v Scott, above n 7, at [8].
20 Including R v Scott, above 7; Stuart v Police, above n 6; Hajnal-Huata v Police, above n 6.
adjusted starting sentence of three years and four months’ imprisonment (40 months) was within range.
Mitigating factors
[32] Central to Mr Young’s argument is that there was insufficient credit given for Mr Harrieder’s good character, including the clean criminal record in New Zealand and in Germany.
Remorse and foreign national status
[33] Remorse requires something more than that which is inherent in guilty pleas.21 However, “a defendant who pleads guilty at the earliest reasonable opportunity may also earn a remorse discount”.22 The pre-sentence report states Mr Harrieder “presented remorseful for his offending behaviour describing it as a ‘very stupid mistake’”. The District Court Judge noted that he had expressed remorse for his offending. However, she was not convinced that it was to the degree that his counsel suggested. I have carefully read Mr Harrieder’s letter addressed to the Court. As the Judge recognised, there is a degree of remorse evident in the letter but the stronger theme in the letter is of a person who, detained in prison, is confronted by what that has done to his circumstances. The Judge considered “some small discount” was justified.23 I agree. In my view, a discount in the realm of five per cent is justified.
[34]Mr Brownlie brings to the Court’s attention the recent decision of Hayden v
R.24 There the Court of Appeal stated:
[57] We would in addition preserve in place the eight percent allowance given by the Judge to reflect the fact that the appellant has been imprisoned overseas in circumstances where, unlike other cases involving Australian citizens, he cannot be visited by relatives, as a result of the travel restrictions in place during the COVID-19 pandemic.
(footnote omitted)
21 Moses v R [2020] NZCA 296 at [24].
22 At [25].
23 Police v Harrieder, above n 1, at [47].
24 Hayden v R, above n 13.
[35] Mr Harrieder’s family are located in Germany. He has outlined the challenges with communicating via telephone due to the time differences. He has further outlined for the Court that he suffers in prison due to being a foreign national. In my view, a discrete discount of five per cent to recognise Mr Harrieder’s challenges as a foreign national incarcerated in New Zealand was appropriate.
[36] Mr Harrieder appears to have entered guilty pleas at an early stage. Accordingly it was appropriate that he received a full 25 per cent credit.
[37] I accept, as the District Court Judge did, that Mr Harrieder does not appear to suffer from any addiction issues. Accordingly, no discount for that matter is warranted on account of any impact of drug addiction.
Good character
[38] Evidence of the offender’s previous good character is a relevant mitigating factor under s 9(g) of the Sentencing Act 2002. A clean criminal record may be evidence of “previous good character”, and has been held to be “worthy, at least potentially, of some recognition”.25
[39] The Crown accepts a modest discount in the realm of five per cent may be applied in respect of an absence of previous criminal convictions.26 However, in Mr Brownlie’s submission that discount is diminished due to the inescapable reference of a background of drug dealing by Mr Harrieder. Mr Brownlie refers to Chai v R where it was held a discount for good character may be problematic where the offending is over a protracted period of time.27
[40] The sum of money, being over $117,000, is indicative of the scale of Mr Harrieder’s offending. However, there is no compelling evidence that the offending has occurred over a protracted period of time. In my view, the scale of the offending is most significantly accounted for in the assessment of the overall culpability of the offending in setting the starting sentence.
25 Based on R v Hockley [2009] NZCA 74 at [30].
26 Citing Chai v R, above n 12.
27 Chai v R, above n 12, at [28]. See also Tonga v R [2011] NZCA 257 at [24].
[41] In Police v Hamilton, one of Mr Harrieder’s associates was sentenced on charges arising from the same search.28 Mr Hamilton is also a German national, and was given a 35 per cent discount for personal factors, including the early guilty plea, s 8(h) Sentencing Act consideration and a small component for good behaviour, in New Zealand.29 Mr Young contends that the Judge declined to give Mr Hamilton a discount due to his inability to provide a certificate showing he did not have any previous convictions overseas. I do not read her Honour’s decision in that way. Rather, the Judge stated it was open to Mr Hamilton to obtain information from Germany as to his criminal history. The onus was not on the prosecution to show that he had no convictions elsewhere.30
[42] With Mr Harrieder’s German record now available, this Court has the full information which was not available at the time of the District Court sentencing. Mr Harrieder is deserving of a modest discount to reflect his good character. As a 30 year old at the time he was sentenced in the District Court, and a person with no criminal record, he was entitled to a modest additional discount of five per cent. The appropriate discount would have been higher but for the impact of the period during which Mr Harrieder must have been engaged in dealing.
[43] This additional discount does not reflect any error in Judge Farnan’s reasoning. Her Honour was constrained to sentence Mr Harrieder at the time he was sentenced on the basis of the information reliably before the Court. Evidence of this clear record was not at that point before the Court.
[44] This brings the total discount for mitigating factors to 40 per cent, being comprised of a discount for remorse (5%), foreign national status (5%), good character (5%) and early guilty pleas (25%).
[45] From a starting sentence of 40 months imprisonment, the end sentence is 24 months’ imprisonment. This is two months less than that reached by the District Court Judge. Here, this difference in sentence means that Mr Harrieder may qualify for a
28 Police v Hamilton [2020] NZDC 16020.
29 At [34].
30 At [31].
sentence of home detention. A difference of two months’ imprisonment on a sentence of this length would not usually justify interference with the ongoing sentence, but interference is justified here where the nature of the sentence available so markedly alters.31
[46] No home detention address has been provided at this point. Mr Harrieder seeks leave to apply for home detention under s 80I of the Sentencing Act. In my view, leave is appropriate. Whether the sentence is ultimately substituted for home detention will depend on whether there is a suitable residence available.
[47] I note Mr Harrieder’s visa has expired, but was extended until September 2020 under the COVID-19 response. In an email dated 18 August 2020, the Ministry of Business, Innovation and Employment confirmed that “[I]mmigation NZ will not deport [Mr Harrieder] until any sentence has been completed.”
Order
[48]I order:
(a)The sentence of 26 months’ imprisonment is quashed.
(b)Instead, Mr Harrieder is sentenced to a term of 24 months’ imprisonment, with leave to apply under s 80I Sentencing Act 2002 for home detention.
Osborne J
Solicitors:
H T Young, Barrister, Invercargill Crown Solicitor, Invercargill
31 Stuart v Police, above n 6, at [49].
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