Harris v Police
[2016] NZHC 1355
•22 June 2016
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CRI-2016-418-000001 [2016] NZHC 1355
BETWEEN NGAHAU MICHAEL HARRIS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 June 2016 Appearances:
N M Harris - Appellant in Person
C E Martyn for RespondentJudgment:
22 June 2016
JUDGMENT OF GENDALL J
Introduction
[1] The appellant appeals against a total sentence of 28 months’ imprisonment
imposed on him by Judge Saunders in the District Court at Christchurch on
11 March 2016. The offences involved were five charges of theft/shoplifting (ss 219 and 223(d) Crimes Act 1961), one of unlawfully taking a motor vehicle (s 226(1) Crimes Act 1961), one of possession of instruments for conversion (s 227 Crimes Act 1961), one of operating a motor vehicle recklessly (s 35(1)(a) Land Transport Act 1998), one of receiving (ss 246 and 247 Crimes Act 1961), and one of possession for supply of cannabis plant (s 6(1)(f) Misuse of Drugs Act 1975).
[2] The sentences imposed in the District Court were as follows:
(a) Possession of cannabis for supply – 10 months’ imprisonment
(b) Receiving – six months’ imprisonment
HARRIS v NEW ZEALAND POLICE [2016] NZHC 1355 [22 June 2016]
(c) Theft of petrol x 2 and theft of liquor – two months’ imprisonment on
each charge but concurrent with each other
(d)Unlawfully taking a motor vehicle, theft of registration plates and possession of utensils for burglary – six months’ imprisonment
(e) Reckless driving – two months’ imprisonment
(f) Theft of sheets – two months’ imprisonment
[3] The appellant was also ordered to pay reparation of $3500 on his release from prison and disqualified from driving for a period of two years from 11 March 2016 in respect of the reckless driving charge.
[4] The appellant appeals his sentence on the basis that the sentence imposed, he
contends, was “manifestly excessive”.
Chronology of background facts
[5] A chronology of the relevant facts here in summary is:
9 May 2015
The appellant was found to be in possession of a large quantity of cannabis for the purposes of supply
20 June 2015
The appellant received a stolen Stihl concrete cutter knowing that it was stolen
14 October 2015
The appellant unlawfully took a motor vehicle and steals petrol to the value of $80
15 October 2015
The appellant stole a further $80 worth of petrol
16 October 2015
The appellant stole a registration plate and number from another vehicle for his stolen vehicle
17 October 2015
While driving the stolen car the appellant failed to remain stopped when indicated to do so by the police. He attempted to flee the police by driving in a reckless manner, losing control of the vehicle at a speed in excess of 180 kilometres per hour and crashing into a farm fence. After the crash he ran off, leaving an injured passenger. This incident happened while the appellant was disqualified from driving on 26 September 2015.
10 January 2016
The appellant stole bed sheets while on police bail.
Analysis
[6] As to this appeal, the appellant is able to appeal the sentence imposed as of right.1 Section 250 of the Criminal Procedure Act 2011 provides that this Court must allow the appeal if it is satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case this Court is to dismiss the appeal.
[7] In this case Judge Saunders in the District Court used a combination of concurrent and cumulative sentences in dealing with the different offences. This was on the basis that some fell within an identical episode of offending together and in those cases concurrent sentences were imposed. Judge Saunders also provided that the sentences imposed in respect of each distinct episode would be cumulative on each other. These arrangements were reached having regard to the provisions of ss 83 and 84 of the Sentencing Act 2002 which, as I see it, was quite appropriate in the circumstances here.
[8] Whilst it must be acknowledged that Judge Saunders, a very experienced sentencing Judge, did not specifically consider the totality principle set out in s 85 of the Sentencing Act 2002, I have no doubt that he would have taken this into account, being well acquainted with the principle, and, in any event, the crucial issue here is whether the end sentence was excessive so that a different sentence should have been imposed.
[9] On all of this the Crown says that in the circumstances of this case it cannot be said the end sentence was excessive particularly when the criminal history of the appellant is taken into account. This includes 33 convictions for dishonesty offences, three convictions for possession of cannabis (although admittedly these were not dealing offences) and 15 convictions for unlawfully interfering with motor vehicles.
[10] Finally, the Crown submitted that the significant discount given to the appellant for his guilty pleas were appropriate here if not generous in some instances
1 Section 244 Criminal Procedure Act 2011.
and that the final end sentence of 28 months’ imprisonment could not be said to be
excessive.
[11] Mr Harris, the appellant, appeared on his own behalf before me to present this appeal. As I have noted, the sole ground of appeal outlined in his Notice of Appeal was that the “sentence was manifestly excessive”.
[12] Although before me Mr Harris had no written submissions in support of his appeal, he made a number of oral submissions and answered several questions which I put to him.
[13] As best I can tell, Mr Harris was suggesting that his sentence was manifestly excessive because Judge Saunders in the District Court did not take into account certain matters of mitigation. The first of these, Mr Harris said, was the fact that at the time of much of the offending in question, in his words he had gone off the rails for a period as he was suffering significant grief from the recent loss of his partner of some eight years. He said his partner had diabetes for which he supported her for some time and finally she died on 11 March 2015. Mr Harris maintained that at the time of the offending he had still had not much time to grieve for the loss of his partner and he had simply “lost it” for a period. He maintained, however, that he felt he was now a changed man.
[14] Mr Harris contended further that his father who was aged about 72 had also been diagnosed with diabetes in around 2013 and Mr Harris said this had some impact upon his position and state of mind at the time of the offending in question.
[15] As to these matters, however, I note from the District Court file that prior to this sentencing, Judge Saunders had two reports before him from the Department of Corrections, the first dated 13 January 2016, and the second dated 26 February 2016. In the first report under the heading “Key Considerations” the report writer noted:
Prior to this offending Mr Harris told me that his partner of some eight years for whom he acted as a caregiver, had passed away shortly before. He says he was not in a particularly good space and his ultimate intention was to travel to his father’s address on the Hokianga. Factors identified as possibly contributing to his offending are his cannabis habit at the time, his desire to
benefit financially by supplying cannabis, his annoyance at being forbidden from driving and the consequent impounding of his vehicle.
[16] It is difficult to accept therefore that, with these Department of Corrections reports before Judge Saunders prior to his sentencing, the matters the appellant endeavoured to raise before me would not have been taken into account during the sentencing exercise.
[17] I am satisfied too that Judge Saunders’ clear identification of the sentence each conviction would attract here and whether those sentences were to be served concurrently or cumulatively was reached in an entirely orthodox manner.
[18] A starting point of 12 months’ imprisonment for the possession of cannabis charge and a discount of two months for early guilty plea was well within the range of options available to the Judge. The appellant was found with 20 rolled up tin foil packages of cannabis and another small bag containing 6 grams of cannabis heads. Located in a drawer of a cabinet in the appellant’s bedroom was newspaper wrapped around 17 grams of dried cannabis plant. The scale of this offending generally fell at
the lower end of category 2 in R v Terewi2 where Blanchard J at [4] held:
Category 2 encompasses small scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
[19] While the appellant was apprehended with a quantity significant enough to attract a penalty of imprisonment, the scale of offending must still be considered relatively minor. A starting point of 12 months’ imprisonment with the further two months’ reduction here was entirely appropriate.
[20] In addition in this case, at a relatively young age, the appellant has accumulated a substantial list of theft and dishonesty related offences (as I have noted at [9] above. I am satisfied the appellant can probably be categorised as a recidivist burglar in terms of the comments outlined in Senior v Police.3 A sentence
of eight months’ imprisonment with a two months discount for early plea was also
2 R v Terewi [1999] 3 NZLR 62 (CA).
3 Senior v Police (2000) 18 CRNZ 340.
therefore appropriate for receiving stolen property. This also took into account the value of the property and the impact it had on the victim.
[21] The six months’ imprisonment sentence for unlawfully taking a motor vehicle, with a further two months’ imprisonment for the reckless driving incident, was also within the range of sentences available to Judge Saunders. The victim impact statement from the vehicle owner made somewhat concerning reading.
[22] And the incident of reckless driving, in my view, demonstrated what might be seen as a disregard on the part of the appellant of any sensible driving law whilst also putting his and his passenger’s life in danger. After the crash it is concerning too that the appellant ran off, leaving his passenger injured. The cumulative sentence of only two months’ imposed for this offending was, if anything, lenient in my view.
[23] From his convictions list the number of offences committed by the appellant whilst on bail (up to 39 offences) during the last decade is also concerning. The uplift of two months’ to reflect the charges of theft whilst on bail I am satisfied is in accordance with s 9(1)(c) of the Sentencing Act 2002.
Conclusion
[24] Taking all these matters into account, it cannot be said in this case that the end sentence of 28 months imposed by Judge Saunders for the considerable offending undertaken by the appellant here was excessive, given also his criminal history.
[25] There are no merits in this appeal. There was no error in the sentence of
28 months’ imprisonment imposed upon the appellant. It was appropriate in all the circumstances here.
[26] This appeal is dismissed.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to Appellant
0