Harris v R - [2013] NZCA 611

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND

CA771/2013
[2013] NZCA 611

BETWEEN	DEAN FREDERICK HARRIS Appellant
AND	THE QUEEN Respondent

Hearing:	27 November 2013
Court:	Stevens, Wild and French JJ
Counsel:	C B Wilkinson-Smith for Appellant M F Laracy for Respondent
Judgment:	4 December 2013 at 3.00 pm

JUDGMENT OF THE COURT

The application for bail and for suspension of the sentence of home detention is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

Mr Harris was convicted in the District Court of a representative charge of theft by a person in a special relationship. His conviction followed the entry of a plea of guilty after he had sought a sentencing indication. He was sentenced by Judge Lynch to 10 months home detention.[1] He immediately filed a notice of appeal against sentence. His grounds of appeal seek a reduction in sentence in recognition of his psychiatric health and his opportunities for employment.
[1]R v Harris DC Palmerston North CRI-2012-031-1358, 12 November 2013. Mr Harris was also sentenced to 75 hours community work and $45,475.00 reparation.
Mr Harris now applies pursuant to s 403A of the Criminal Procedure Act 2011 for a grant of bail and suspension of his sentence of home detention pending determination of his appeal. As we have explained in our judgment in Din v R,[2] a case heard at the same time, this application requires us to consider the effect of the Administration of Community Sentences and Orders Act 2013 (the ACSO Act) which came into force on 23 October 2013. The ACSO Act altered the position under the Criminal Procedure Act and the Bail Act 2000 for bail applications in respect of appeals where a person is serving a sentence of home detention.
[2]Din v R [2013] NZCA 610.
Like the case of Mr Din, disposition of Mr Harris’ application for bail ultimately comes down to an application of the test in s 14 of the Bail Act. Counsel were agreed that the recent legislative changes have resulted in a situation where a person sentenced to home detention who seeks to have that sentence suspended is required to apply for bail. If bail is granted, a direction that the sentence of home detention is suspended would be made at the same time.
This case differs from that of Mr Din in the following respect. In the latter case counsel were agreed that the application is to be treated in the same way and engaging the same test as for an applicant seeking bail following a custodial sentence. In this case Mr Wilkinson-Smith for Mr Harris argued that as the sentence of home detention was different in kind from a custodial sentence, a different approach to the test in s 14 of the Bail Act should be adopted. We address this argument below.
For the reasons that follow we have decided that Mr Harris’ application for bail must…

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 [2013] NZCA 611
Case: [2013] NZCA 611
Decision Date: 4 December 2013 at 3.00 pm

CaseChat Overview and Summary

Dean Frederick Harris appealed against his sentence of 10 months home detention, imposed after he pleaded guilty to theft by a person in a special relationship. The Court of Appeal considered whether bail should be granted and whether the sentence should be suspended pending the appeal. The key issues were the effect of recent legislative changes on bail applications for those serving home detention sentences, and whether a different test should apply in such cases compared to those serving custodial sentences. The Court held that the test in section 14 of the Bail Act applied, and that the exceptional circumstances test remained appropriate. The Court found that Harris had not demonstrated sufficient cause to grant bail, as the appeal was not compelling and the sentence would not be served in full before the appeal was heard. The application for bail and suspension of the sentence was declined.

The Court of Appeal decided that Mr Harris’ application for bail must be declined. The Court considered the recent legislative changes which require an application for bail for those serving home detention sentences. However, the Court found that the test in section 14 of the Bail Act still applied and required the Court to consider whether it was in the interests of justice to grant bail. The Court found that Mr Harris had not demonstrated sufficient cause for bail, as the appeal was not compelling and the sentence would not be served in full before the appeal was heard. The Court also found that the exceptional circumstances test remained appropriate and that there was no basis for adopting a different test in cases involving sentences of home detention. The application for bail and suspension of the sentence of home detention was declined.

Orders