Harris v Police - [2017] NZHC 3224

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-149 [2017] NZHC 3224

BETWEEN
MARLANNA SHELLEY DIANA HARRIS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 December 2017

Appearances:

T Aickin for the Appellant
B Hawes for the Respondent

Judgment:

19 December 2017

JUDGMENT OF MANDER J

[1] The appellant, Ms Marlanna Harris, was sentenced to 11 and a half months’ imprisonment for driving whilst disqualified being her third or subsequent offence, various dishonesty charges, and charges of breaching conditions, failing to report, and failing to answer bail.1 She now appeals that sentence, alleging it is manifestly excessive.

Background

[2] On 14 December 2016, the appellant was stopped by police while driving and found to be a disqualified driver. She has two previous convictions of driving whilst disqualified or suspended, relating to offending on 18 November 2015 and 29 January
2016.

1 Police v Harris [2017] NZDC 25189.

HARRIS v POLICE [2017] NZHC 3224 [19 December 2017]

[3] Ms Harris had in the previous month been released from prison on conditions. In breach of those release conditions, she failed to report on numerous occasions.
Ms Harris was released on bail in respect of these matters and for other subsequent offending. However, she failed to appear on 15 February and 15 May 2017. This led to the two charges of failing to answer District Court bail.

[4] On 16 May, Ms Harris failed to report to perform her sentence of community work and was charged with the breach.

[5] In August, Ms Harris was charged that on 20 April 2017, she, together with an associate, drove a stolen car. They drove down the driveway of an establishment called the Corporate Club, an event venue which was closed at the time. They had no legitimate reason to be there. Ms Harris uplifted a package containing pavlovas, valued at $200, and put it in the car. She then drove off and later abandoned the vehicle. This resulted in the charges of being unlawfully in a motor vehicle, being unlawfully in an enclosed yard, and theft.

District Court decision

[6] After setting out the circumstances of the offending, Judge Couch noted the appellant’s extensive criminal history. It includes various convictions for dishonesty and seven breaches of community-based sentences. The Judge identified the driving whilst disqualified (third or subsequent) as the lead charge. He considered the gravity of the offending was substantial because it was Ms Harris’s third such offence in a year. He took a starting point of six months’ imprisonment.

[7] For the various offences of breaching and failing to answer bail, the Judge applied an uplift of five months. He found the conduct was serious, and noted this was Ms Harris’s second breach of the same release condition. For the other offending, he applied an uplift of two months.

[8] Judge Couch noted the aggravating features which included the fact that, apart from the disqualified driving, the offending occurred while Ms Harris was on…

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: [2017] NZHC 3224
Decision Date: 19 December 2017

CaseChat Overview and Summary

The appellant, Marlanna Harris, was convicted and sentenced for multiple offences, including driving while disqualified, various dishonesty charges, and breaching conditions, failing to report, and failing to answer bail. She appealed the sentence imposed by the District Court, arguing it was manifestly excessive. The appeal was heard by the High Court of New Zealand, Christchurch Registry. The central legal issues in the appeal were whether the starting point for the disqualified driving charge was excessive, the appropriateness of the uplift for the non-compliance charges, and the consideration of mitigating factors such as remorse.

The Court considered the precedent cases to determine if the starting point for the disqualified driving charge was within the range of available sentence. The Court noted that although the six-month starting point may have been on the higher end, it was not outside the range given the appellant's extensive criminal history and the short period within which the offences occurred. The Court also found that the uplift of five months for the non-compliance charges, including breaching community work, release conditions, and failing to answer bail, was within the range of available sentence given the appellant's history of similar offences. The Court further held that the sentencing judge was not obliged to make additional adjustments for remorse beyond the credit given for the guilty pleas, given the appellant's long record of criminal offending.

Ultimately, the Court concluded that the sentence of 11 and a half months' imprisonment was within the range of available sentence and that the appellant had not demonstrated an error in the imposition of the sentence warranting a different sentence. Therefore, the appeal was declined.

The final orders of the Court were that the appeal was declined, and the sentence imposed by the District Court was upheld.

Orders