IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI 2021-488-57
[2022] NZHC 345
UNDER
The Sentencing Act 2002
BETWEEN
TYSON JAYS HARRIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing:
1 March 2022 (by VMR)
Appearances:
M Watkins for the appellant
R Annandale for the respondent
Judgment:
2 March 2022
JUDGMENT OF CAMPBELL J
[Appeal against Sentence]
This judgment was delivered by me on 2 March 2022 at 4:00 pm
Registrar/Deputy Registrar
HARRIS v NEW ZEALAND POLICE [2022] NZHC 345 [2 March 2022]
[1]Mr Harris pleaded guilty to a charge of assault with intent to injure.1
[2] On 8 November 2021, Judge H B Shortland sentenced Mr Harris to 10 months’ home detention.2 Mr Harris appeals against that sentence. He says it is manifestly excessive, because the Judge did not give enough credit for the amount of time he had spent in custody.
The offending
[3] At around 1 am on 17 April 2021, Mr Harris and his partner, the victim, had an argument. The victim said she wished to end the relationship. In response, Mr Harris punched her multiple times in the head.
[4] In an attempt to evade the blows, the victim went to the floor. Mr Harris, while wearing shoes, stood above her and continuously stomped and kicked her head and upper body region. He then punched her in the head again.
[5] The victim suffered a bloody nose, contusions and abrasions across her face and upper torso. The assault caused her to fear for her life.
District Court decision
Sentence indication
[6] On 12 August 2021, Judge Shortland gave Mr Harris a sentence indication.3 The Judge referred to both R v Taueki and Nuku v R as the guideline judgments for Mr Harris’ offending.4 In terms of those cases, the Judge said aggravating features of Mr Harris’ offending included that he had committed violence against the victim while she was in her home;5 she had suffered reasonably serious injuries; and the attack was somewhat prolonged and involved Mr Harris kicking and stomping the victim while wearing shoes.
1 Crimes Act 1961, s 193. Maximum penalty: three years’ imprisonment.
2 Police v Harris [2021] NZDC 21938.
3 Police v Harris DC Kaikohe CRI-2021-027-405, 12 August 2021.
5 On this point, the Judge also had regard to Solicitor-General v Hutchinson [2018] NZCA 162, in which the Court of Appeal identified family violence occurring in one’s home as an aggravating feature.
[7] The Judge, while acknowledging Mr Harris’ youth, did not see any clear mitigating factors. His Honour therefore considered a starting point of two years and eight months’ imprisonment appropriate, which was then uplifted by two months to account for Mr Harris’ family violence history.
[8] The final sentence indication was for two years and 10 months’ imprisonment, with Judge Shortland saying discounts for a guilty plea…
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.
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AGLC
Harris v Police [2022] NZHC 345
Case
[2022] NZHC 345
Decision Date
CaseChat Overview and Summary
In the High Court of New Zealand, Mr Tyson Jays Harris appealed against his sentence of 10 months' home detention for an assault with intent to injure. The appellant argued that the sentence was manifestly excessive because the Judge did not give sufficient credit for the time he had spent in custody. The respondent submitted that the sentence was appropriate, given the generous discount for social deprivation outlined in the s 27 report. The Court had to determine whether the Judge erred by giving insufficient credit for the time Mr Harris spent in custody and whether the sentence was manifestly excessive. The Court found that the Judge erred in not giving full credit for the time Mr Harris spent in custody. However, the Court also found that the 20 per cent discount for social deprivation was excessively generous. The Court concluded that the sentence of 10 months' home detention was manifestly excessive and replaced it with a sentence of five months' home detention.
The Court's judgment highlights the importance of giving appropriate credit for time spent in custody when imposing a sentence of home detention. The Court also emphasises the need to strike a balance between the various factors that may warrant a discount in sentencing. The judgment provides useful guidance for sentencing Judges when considering credit for time spent in custody and discounts for social deprivation in sentencing.