Harris v Police
[2019] NZHC 3044
•27 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-403
[2019] NZHC 3044
UNDER The Criminal Procedure Act 2011 BETWEEN
MATTHEW JAMES HARRIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 November 2019 Appearances:
J A Kincade and A Shendi for the Appellant B Hamilton for the Respondent
Judgment:
27 November 2019
JUDGMENT OF POWELL J
This judgment was delivered by me on 27 November 2019 at 3.30 pm Registrar/Deputy Registrar
Date:
HARRIS v NEW ZEALAND POLICE [2019] NZHC 3044 [27 November 2019]
[1] On 12 August 2019 Judge N R Dawson in the District Court in Auckland sentenced the appellant, Matthew Harris, to 19 months’ imprisonment.1 Mr Harris had pleaded guilty to a wide range of relatively low-level offending over a lengthy period. The offending comprised a single charge of male assaults female;2 two counts of theft (over $1,000);3 six counts of theft (under $500);4 possession of pipe or another utensil;5 possession of knife in a public place;6 obstructing police;7 breaching supervision order;8 breaching community work;9 and two counts of failing to answer District Court bail.10
[2] Mr Harris appeals against his sentence on the grounds it was manifestly excessive. While Mr Harris takes no issue with the starting point adopted by the sentencing Judge, he says that he should have received more than the 17.4 per cent he received for his guilty plea, and that his sentence should have been reduced by two months to reflect his willingness to engage in restorative justice.
[3] It is well established that an appeal of this type must be allowed if the Judge is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.11 In any other case, the appeal must be dismissed.12 The measure of error is the sentence be “manifestly excessive”, a principle “well engrained” in the Court’s approach to sentence appeals.13 That is to be determined by reference to the final sentence, not the route adopted to reach it.14 How the sentence was structured is not material.15
1 Police v Harris [2019] NZDC 15888.
2 Crimes Act 1961, s 194(b): maximum period of two years’ imprisonment.
3 Section 219 and 223(b): maximum period of seven years’ imprisonment.
4 Section 219 and 223(d): maximum period of three months’ imprisonment.
5 Misuse of Drugs Act 1975, s 13(1)(a) and (3): maximum period of one-year imprisonment.
6 Summary Offences Act 1981, s 13A: maximum period of three months’ imprisonment.
7 Section 23(a): maximum period of three months’ imprisonment.
8 Sentencing Act 2002, s 70(a): maximum period of three months’ imprisonment.
9 Section 71(1)(a): maximum period of three months’ imprisonment.
10 Bail Act 2000, s 38: maximum penalty of one years’ imprisonment.
11 Criminal Procedure Act 2011, s 250(2).
12 Section 250(3).
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].
14 Ripia v R [2011] NZCA 101 at [15].
15 Mita v R [2012] NZCA 137.
The sentence imposed
[4] Judge Dawson took the two theft charges (over $1,000) to be the lead offending. The Judge adopted a starting point of 12 months’ imprisonment for those charges and applied an uplift of six months for the male assaults female charge, and an uplift of three months for the other charges.16 The Judge also considered a further three-month uplift was necessary to reflect Mr Harris’s criminal history. This took the sentence to one of 24 months’ imprisonment.
[5] From that starting point, Judge Dawson allowed a one-month discount for courses Mr Harris had completed whilst in custody. The Judge deducted a further four months to reflect the guilty pleas (as noted being equivalent to 17.4 per cent).17 On the two leading theft charges, Mr Harris was sentenced to 19 months’ imprisonment on each to be served concurrently. On all other charges, Mr Harris was sentenced to three months’ imprisonment on each, to be served concurrently. The end sentence was therefore a concurrent sentence of 19 months’ imprisonment.18
Issue one – adequacy of the guilty plea discount
[6] It is submitted by Ms Kincade, on behalf of Mr Harris, that the guilty plea discount applied by the Judge is insufficient and a discount in the range of 20 to 25 per cent would have been appropriate. Ms Kincade provided the Court with a table setting out when Mr Harris pleaded guilty to each of the charges. It was submitted that Mr Harris had entered guilty pleas either at first appearance, at the case review hearing, or immediately upon the amendment of the charges and that in the circumstance of this case represented the earliest and/or first available opportunity. As a result Ms Kincade submitted the discount given by Judge Dawson was inadequate with reference to Marsh v R.19
16 Police v Harris [2019] NZDC 15888 at [20].
17 Rounded to 17 per cent.
18 Police v Harris [2019] NZDC 15888 at [21] and [22].
19 Marsh v R [2018] NZHC 2485. In that case the appellant appealed against sentence on three grounds, one being an inadequate discount (19.25 per cent) for guilty pleas.
Discussion – guilty plea discount
[7] There is no dispute a defendant is entitled to a reduction in sentence for a guilty plea.20 However:21
… the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.
[8]Any reduction cannot exceed 25 per cent.22 In this regard:
[75] … Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea. … the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.
[9] It is apparent from the table prepared by Ms Kincade that with regard to a number of the charges Mr Harris did in fact plead guilty at the first opportunity. However, as discussed with Ms Kincade at the hearing the table does not tell the full story. First, it is clear that the charges did not have an orderly progression through the District Court, noting that on a number of occasions Mr Harris simply did not turn up and this led to his arrest on at least five occasions. More fundamentally it is clear that the circumstances leading to the amendment of the charge of assault with intent to injure to male assaults female came after Mr Harris had not only pleaded not guilty to the original charge but it had been set down for a four hour Judge Alone Trial (“JAT”). Mr Harris failed to appear at the scheduled hearing of the JAT on 4 June 2019 and this led to the issue of a warrant for his arrest. When he was arrested and brought to Court two days later, a “resolution” appears to have been negotiated, and he then pleaded guilty.
[10] Ms Kincade accepted these “complications” had led to counsel at the sentencing hearing seeking a maximum discount of 20 per cent, and acknowledged
20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].
21 At [73].
22 At [75].
there was in fact a substantive basis for Judge Dawson not giving the maximum 25 per cent discount available. In the circumstances I am satisfied that the discrete discount given by Judge Dawson was indeed within range and any adjustment between the
17.4 per cent given and 20 per cent would clearly be “inadmissible tinkering”. It certainly does not provide “a realistic basis upon which to disturb the sentence imposed”.23 Accordingly, I do not consider Judge Dawson erred in imposing Mr Harris’s guilty plea discount.
Issue two – failure to take into account offer to participate in restorative justice
[11] Ms Kincade submits that the sentencing Judge failed to consider Mr Harris’s willingness to engage in a restorative justice conference. It is submitted that Judge Dawson ought to have allowed a discount in the order of two months to reflect this mitigating feature.
Discussion – restorative justice
[12] A sentencing court is required, under s 9(2)(f) of the Sentencing Act 2002 to take into account remorse shown by an offender “or anything else described in s 10”. Section 10(1)(a) provides that the Court must take into account any offer on the part of an offender to make amends. Accordingly, sentencing judges often give credit for a willingness on behalf of the offender to participate in restorative justice if it indicates an expression of remorse.24
[13] Restorative justice is a process that is designed to redress the harm done to victims, hold the offender to account and engage the community in the development of programmes or strategies to prevent further offending. There is no dispute Mr Harris was willing to participate in a restorative justice conference however the victims declined to as they were entitled to do. As noted by the learned authors of Adams on Criminal Law however, since the Criminal Procedure Act 2011 now allows for involvement in the restorative justice process as a matter of course, a willingness to participate in a restorative justice conference that does not proceed may, of itself,
23 Sekai v New Zealand Police [2014] NZHC 1348 at [34].
24 Hela v R [2013] NZCA 237 at [9]; Elisaia v R [2015] NZCA 516 at [24]; and Whitcombe v NZ Police [2018] NZHC 1409 at [12].
mean little. That willingness is to be given more weight when it is coupled with other evidence that shows an offender has taken responsibility for his or her offending and wishes, in a meaningful way, to atone for it.25
[14] In this case it is difficult to place much weight on Mr Harris’ offer to engage in restorative justice given the nature of the offences to which he had pleaded guilty. Specifically, it is apparent that few of the charges lent themselves to any form of restorative justice at all. The charges for possession of pipe or utensils, possession of a knife, obstructing Police, breaching supervision and breaching community work were clearly entirely inappropriate for restorative justice. Likewise, the fact that the male assaults female charge was committed against his partner with whom he so much wanted to be with that he breached his bail conditions (with the feelings apparently reciprocated) also casts doubt on whether any offer to undergo restorative justice was genuine and/or deserving of any discrete credit.
[15] This leaves the various theft charges. With one exception, these related to shoplifting from commercial stores: Torpedo 7, Kathmandu and Rebel Sport. Given the nature of these victims it is not surprising that they were not interested in restorative justice, and Mr Harris would be likely to be aware of this fact.
[16] In any event the offer to attend restorative justice was not matched by any other offer of amends for the purposes of s 10(1) of the Sentencing Act. In such circumstances, and noting that Mr Harris’ shoplifting continued notwithstanding the initial filing of charges, there must be significant doubt that any offer to participate in restorative justice was genuine.26 As Judge Dawson noted at sentence when His Honour acknowledged Mr Harris’ expression of remorse:27
You have expressed your remorse through your letter, but given your ongoing persistent offending you need to be considered on your record, rather than what you say you are going to do at sentencing. It sounds a little hollow when you just keep offending in the same way. You need to show that you can do what you say you want to.
25 Henare v R [2017] NZHC 2397 at [17]; and Scott v R [2014] NZHC 1598.
26 Sentencing Act 2002, s 10(2).
27 Police v Harris [2019] NZDC 15888 at [19].
[17] In the circumstances and notwithstanding Judge Dawson did not specifically refer to Mr Harris’ offer to participate in restorative justice, I do not consider any form of discrete discount was warranted for Mr Harris’ offer to participate in restorative justice.
Conclusion
[18] Looking back I am satisfied that the discounts given by Judge Dawson were appropriate, even generous, both for the courses attended by Mr Harris in custody and for his guilty pleas. It follows the sentence was not manifestly excessive and the appeal must be dismissed.
Decision
[19]The appeal is dismissed.
Powell J
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