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Harris v R

Harris v R

Case [2021] NZCA 143 29 April 2021

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA296/2020
[2021] NZCA 143

BETWEEN	MONIQUE HARRIS Appellant
AND	THE QUEEN Respondent

Hearing:	24 February 2021
Court:	Cooper, Mallon and Wylie JJ
Counsel:	M N Pecotic for Appellant A M McClintock and O S Klinkum for Respondent
Judgment:	29 April 2021 at 10 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
B On the charges of manufacturing methamphetamine and possession of methamphetamine for supply, the existing concurrent sentences of five years and three months’ imprisonment are quashed.
CConcurrent sentences of four years and five months’ imprisonment are substituted.
DThe existing concurrent sentences on the other charges remain as imposed in the District Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

The appellant, Monique Harris, faced drug and weapons charges arising out of two sets of offending. She pleaded guilty and was sentenced by Judge E P Paul to five years and three months’ imprisonment.[1] She appeals that sentence as manifestly excessive. She says the starting point for the lead charge (manufacturing methamphetamine) was too high. She also says she should have received greater discounts for personal mitigating factors.

Background

[1]R v Harris [2020] NZDC 7958 [Sentencing notes].

2017 offending

The first set of offending involved possession of methamphetamine for supply,[2] possession of heroin, cocaine and GBL (“fantasy”),[3] and unlawful possession of a restricted weapon (a contact taser).[4]
[2]Misuse of Drugs Act 1975, s 6(1)(f) and (2), maximum penalty life imprisonment.
[3]Section 7(1)(a) and (2), maximum penalty six months’ imprisonment and $1,000 fine for Class A and three months’ imprisonment and $500 fine for Class B.
[4]Arms Act 1983, s 45(1)(b), maximum penalty four years’ imprisonment and $5,000 fine.
The charges arose following a call to the police by a concerned member of the public who saw Ms Harris on a West Auckland suburban street in the late afternoon of 5 October 2017. The police attended and attempted to speak to Ms Harris, who tried to walk away. The police then invoked their search powers and Ms Harris threw her handbag away. The handbag was retrieved and searched. Inside the handbag was 97.646 g of methamphetamine, a bottle of GBL weighing 54.9 g, less than a gram of cocaine, 96 mg of heroin, a contact stun taser and a tick book. $1,798 in cash was also found on Ms Harris.

2018/2019 offending

The second set of offending involved wilful damage of an EM bracelet,[5] manufacturing methamphetamine,[6] and unlawfully possessing a pistol.[7]
[5]Summary Offences Act 1981, s 11(1)(a), maximum penalty three months’ imprisonment or $2,000 fine.
[6]Misuse of Drugs Act, s 6(1)(b) and (2)(a), maximum penalty life imprisonment.
[7]Arms Act, s 45(1)(b).
Ms Harris had been granted EM bail on 17 August 2018 on the first set of charges. On 3 November 2018, she removed her EM bracelet and absconded. A warrant for her arrest was issued.
Early on 1 May 2019, police found Ms Harris at a Henderson address…

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.

Continue reading Harris v R

Details

AGLC: Harris v R [2021] NZCA 143
Case: [2021] NZCA 143
Decision Date: 29 April 2021 at 10 am

CaseChat Overview and Summary

Monique Harris appeals against her sentence, which she submits is manifestly excessive. The Crown opposes the appeal. Harris was sentenced by Judge Paul to five years and three months’ imprisonment on charges of manufacturing and possession of methamphetamine for supply. She argues that the starting point for the lead charge was too high and that she should have received greater discounts for personal mitigating factors. The appeal court found that the starting point adopted by the Judge was too high. Based on quantity alone, a starting point of three to three and a half years’ imprisonment was appropriate. However, the court agreed with the Judge that Harris did not have a "lesser" role. Her role was at the lower end of significant, given that she ran her own operation and some of what she produced was intended to be sold. The court considered a three-year starting point for the manufacturing charge was appropriate. The appeal court also considered that the Judge's uplift of six months for the possession of the pistol was appropriate. The court agreed with the Judge’s starting point of four years’ imprisonment for the drugs found in Harris’ possession in 2017. The court found that the Judge’s uplift of six months for the possession of the taser and the other drugs was appropriate. The appeal court found that a totality adjustment of two years’ imprisonment was appropriate. The court found that an overall starting point of six years’ imprisonment was appropriate in light of the pistol, the taser, and the small quantities of other drugs found in Harris’ possession in 2017. The court considered that the Judge’s modest uplift of three months for removing the EM bracelet, offending on bail, and prior offending was appropriate. The court found that the discount of 15 per cent for Harris’ personal circumstances was appropriate. The court found that an overall discount of 15 per cent for the guilty pleas on both sets of charges was unimpeachable. A total discount of 30 per cent to a starting point of six years’ imprisonment leads to an end sentence of four years and two months’ imprisonment, plus the three-month uplift for personal aggravating factors. The appeal court found that the sentence the Judge imposed was manifestly excessive. The appeal against sentence is allowed. On the charges of manufacturing methamphetamine and possession of methamphetamine for supply, the existing concurrent sentences of five years and three months’ imprisonment are quashed. Concurrent sentences of four years and five months’ imprisonment are substituted. The existing concurrent sentences on the other charges remain as imposed in the District Court.

Orders