[1] Ms Harris pleaded guilty to one charge of assault with intent to injure and one charge of theft. She was sentenced to a term of 18 months imprisonment by Judge Spear in the District Court on 24 February 2017.1

[2] She now appeals that sentence.

[3] The appeal is out of time. However, the Court may grant leave to appeal if it is in the interests of justice.2 For reasons that will become apparent, I consider granting leave is appropriate in this case.

Background facts

[4] Ms Harris was staying at the victim’s address with her son following eviction

from her own property.

[5] The victim gave her EFTPOS card and PIN number to Ms Harris to buy petrol. When the card was declined due to insufficient funds, Ms Harris and her son returned to the victim’s address and Ms Harris confronted the victim. During the confrontation, she grabbed the victim by her hair and punched her approximately five times in the head. She pushed the victim, causing her to fall and strike her head on a nearby table.

[6] Ms Harris then kicked the victim approximately six times to the head. She called her son into the room, who also kicked the victim approximately five times to the head.

[7] Ms Harris and her son then left with the victim’s phone and gaming console,

together worth around $500.

District Court judgment

[8] Judge Spear in the District Court took a starting point of 22 months imprisonment for the lead offence of assault with intent to injure. He uplifted the
starting point by one month to reflect the taking of the cellphone.

1 Police v Harris [2017] NZDC 3744.
2 Criminal Procedure Act 2011, s 248(4)(a).

[9] The Judge viewed Ms Harris’ conduct as particularly uncharitable. He considered that she was neither remorseful nor empathetic. In light of this view he took a stern approach, as the seriousness of the offending required a sentence to hold Ms Harris fully accountable for the harm done and denounce the offending.

[10] He identified no mitigating circumstances other than Ms Harris’ guilty pleas, for which he reduced the sentence by five months (slightly more than 20 per cent).

[11] The Judge did not consider that home detention should be imposed. This was primarily because he considered the offending “demands that this Court treat you exactly for what you have done and that is to send you to imprisonment to reflect upon where your life has reached”, although he also mentioned that he was concerned about the fact that the address proposed for home detention was a

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 [2017] NZHC 1404
Case: [2017] NZHC 1404
Decision Date: 22 June 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Cherie Janine Harris appealed against her 18-month imprisonment sentence, imposed by Judge Spear in the District Court for assault with intent to injure and theft. Harris was staying at the victim's address when she assaulted the victim and stole her belongings. The District Court judge took a starting point of 22 months imprisonment, uplifted by one month for theft, and considered the offence particularly uncharitable. The appellant argued that the starting point was too high, there should not have been an uplift for theft, and the sentence should have been reduced further for her personal circumstances.

The legal issues before the court were whether the sentence imposed was manifestly excessive or wrong in principle, and whether there were exceptional circumstances to warrant leave to appeal. The court considered the principles of sentencing and whether the sentence was within range and justified by accepted sentencing principles. The court also examined the proportionality of the sentence compared to Harris' co-offender, her son.

The court found that the starting point of 22 months imprisonment was too high and did not align with the authorities cited. The court considered a starting point of 16 months imprisonment to be appropriate for the lead offence of assault with intent to injure. The court also found that a slightly higher discount of 25% for Harris' guilty plea was appropriate, bringing the end sentence to 13 months imprisonment. Given the proposed term of imprisonment was under two years, the court was obliged to consider a term of home detention. However, home detention was not feasible at the available address. The court concluded that the sentence imposed was manifestly excessive and substituted a sentence of 13 months imprisonment. The court also granted leave under section 80I of the Sentencing Act for Harris to apply to commute the sentence to one of home detention if a suitable address is provided.

The final orders of the court were to allow the appeal, quash the sentence imposed by the District Court, substitute a sentence of 13 months imprisonment, apply the release conditions imposed in the District Court, and grant leave for Harris to apply to commute the sentence to one of home detention if a suitable address is provided.

Orders