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Harris v Police

Harris v Police

Case [2024] NZHC 2321 19 August 2024

Appeal

Miscarriage of Justice

Criminal Liability

Statutory Construction

Sentence

Disqualification

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000332

[2024] NZHC 2321

BETWEEN
HAKI HARRIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 July 2024

Appearances:

N Reive for Appellant

N C Vaughan for Respondent

Judgment:

19 August 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andre on 19 August 2024 at 2.00 pm
pursuant to r 11.5 of the High Court Rules 2016.

Registrar / Deputy Registrar Date ……………………………

HARRIS v NZ POLICE [2024] NZHC 2321 [19 August 2024]

Introduction

[1] This is an appeal against conviction and sentence and in respect of two charges of failing to stop for flashing red/blue lights (third or subsequent).1

[2] In the District Court, Mr Harris pleaded guilty to the two charges and other related traffic offending. In relation to the failing to stop charges, the appellant was disqualified from driving for 24 months, with a further cumulative six-month disqualification for the dangerous driving conviction.

[3] The appellant appeals both the conviction and sentence imposed on the two charges of failing to stop for red/blue flashing lights on the basis that:

(a)They were not the appellant’s third or subsequent offences against s 52A of the Land Transport Act 1998 (the Act) and the facts of the offending should have resulted in this being charged as his first and second offences instead;

(b)Should the appeal against conviction be upheld, it is open to the Court to substitute the conviction with the correct charges, namely a first and second offence against s 52A of the Act; and

(c)The appellant should be re-sentenced so that the mandatory disqualification from driving on these charges are six months for the first offence, and between one to two years for the second offence.

[4] The respondent concedes that the appeal ought to be allowed. However, it says that the appellant’s first failure to stop offence was charged correctly, and not as a third and subsequent offence.

[5] The appeal has been filed out of time and leave to appeal is required. The respondent does not oppose leave being granted. It accepts there is an error that

1 Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2): maximum penalty, fine of
$10,000.

requires correction and that the outcome of the appeal has significance in redressing the original sentence imposed.2

Factual background

[6]There are two sets of offending.

22–29 April 2021: First set of offending

[7] This encompasses three charges: unlawfully taking a motor vehicle,3 failing to stop when followed by red/blue flashing lights and unlawfully being in an enclosed area.4

[8] Between 22 and 29 April 2021, a silver Mazda motor vehicle was stolen from Dannemora.

[9] On 29 April 2021, at approximately 10 am, the appellant was driving the vehicle. He was picked up by his co-offender, Tupo Sauileoge.

[10] At approximately 3 pm that day, the appellant and Mr Sauileoge went to a residential address and attempted to gain entry by forcing open…

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 Harris v Police

Details

AGLC: Harris v Police [2024] NZHC 2321
Case: [2024] NZHC 2321
Decision Date: 19 August 2024

CaseChat Overview and Summary

This appeal involves Haki Harris, who appeals his conviction and sentence for two charges of failing to stop for flashing red/blue lights, classified as a third or subsequent offence. The appeal argues that these charges should have been classified as first and second offences instead, leading to a different sentence. The respondent conceded that the appeal should be allowed but argued that the first failure to stop offence was charged correctly. The appeal was filed out of time, but leave was granted as there is an error that needs correction and the outcome has significance in redressing the original sentence imposed.

The court considered whether convictions for failing to stop, entered prior to the introduction of section 52A of the Land Transport Act, count as a "conviction against subsection (1)" for the purposes of applying the harsher penalty in section 52A(5). Recent High Court decisions have held that convictions before the introduction of section 52A do not count. The court found that there had been a miscarriage of justice and quashed the conviction in relation to the second charge of failing to stop. The court then substituted the conviction with a charge under section 52A(1)(a)(ii) and 52A(3), imposing a six-month disqualification period. The court also varied the start date of the appellant's sentence for the charge of driving in a dangerous manner, resulting in a total disqualification period of 12 months.

The court granted the appeal against conviction in respect of the second charge of failing to stop and substituted the conviction under section 52A(1) of the Act. The sentences on the two charges of failing to stop were substituted by a six-month disqualification period. The court also varied the start date of the appellant's sentence of six months’ disqualification for the charge of driving in a dangerous manner.

Orders