Harrieder v The Queen - [2020] NZHC 2548

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…

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 Harrieder v The Queen

Details

AGLC: Harrieder v The Queen [2020] NZHC 2548
Case: [2020] NZHC 2548
Decision Date: 29 September 2020

CaseChat Overview and Summary

The appeal in Harrieder v The Queen concerns the sentence imposed on Mr Harrieder for possession of cannabis for supply, possession of LSD simpliciter, and failing to provide a police officer with the passcode for his phone. The District Court had sentenced Mr Harrieder to 26 months’ imprisonment. Mr Harrieder appealed the sentence on the ground it was manifestly excessive. The legal issues the Court was required to decide included whether the starting point for the sentence was correct, the appropriateness of the uplifts for the LSD and Search and Surveillance Act charges, and whether sufficient discount was given for mitigating factors. The Court found the starting point for the sentence was correct, and that the uplifts for the LSD and Search and Surveillance Act charges were within range. The Court also found that a modest discount was available for Mr Harrieder’s good character, remorse, and foreign national status, which brought the end sentence down to 24 months’ imprisonment. The Court quashed the sentence of 26 months’ imprisonment and substituted a sentence of 24 months’ imprisonment, with leave to apply for home detention.

Orders