Harris v Police - [2019] NZHC 3044

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]…

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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Details

Case: [2019] NZHC 3044
Decision Date: 27 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Matthew James Harris appealed against his sentence for various low-level criminal offences, arguing that it was manifestly excessive. The sentencing Judge had imposed a concurrent sentence of 19 months’ imprisonment, which Harris considered disproportionately severe given his guilty pleas and willingness to engage in restorative justice. The court had to determine whether the sentence was manifestly excessive, which would warrant an appeal.

The court examined whether the guilty plea discount and the failure to consider the restorative justice offer were grounds for a new sentence. On the guilty plea discount, the court noted that Harris had pleaded guilty at the earliest available opportunity for several charges. However, the court found that the discount applied by the Judge was appropriate and that any adjustment would amount to inadmissible tinkering. Regarding the restorative justice offer, the court found that it was difficult to place significant weight on Harris's offer given the nature of the offences and the lack of other evidence of remorse or amends.

The court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal. The reasoning was that the discounts given by the sentencing Judge were appropriate, and any adjustment would not provide a realistic basis to disturb the sentence imposed. The court emphasised that the measure of error was the final sentence, not the route taken to reach it.

The final orders of the court were that the appeal was dismissed.

Orders