Harris v The Queen

[2020] NZCA 553

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA391/2020
 [2020] NZCA 553

BETWEEN	AMANDA JANE HARRIS Appellant
AND	THE QUEEN Respondent

Hearing:	2 November 2020
Court:	Miller, Brewer and Moore JJ
Counsel:	H G de Groot for Appellant J E Mildenhall for Respondent
Judgment:	9 November 2020 at 11.00 am

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence on appeal is granted.

B    The appeal is allowed. 

CThe sentences are quashed.

DThe proceeding is remitted to the District Court for resentencing.

EMs Harris is remanded at large to appear at the District Court at Whangarei on a date to be set by that Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. Ms Harris brings this appeal against her conviction and sentence of six months home detention on one charge of cultivating cannabis and one charge of theft of electricity.[1]  She seeks a discharge without conviction.  It is not in dispute that she was not advised of her right to seek one at sentencing in the District Court.  For reasons which we can state quite briefly, we consider that she should have the opportunity to be resentenced.

The summary of facts

[1]R v Harris [2020] NZDC 12497.

1. The summary of facts records that upon executing a search warrant at Ms Harris’s property at Kaiwaka the police found a substantial cannabis growing operation in a large shed.  In one room cannabis plants were being grown under lights, in another plants were being dried, and in another was found a mother plant.  A total of 82 plants were found.  Also found in a ceiling space was a .22 calibre rifle.  The electricity meter had been interfered with, resulting in electricity to the value of $1737.52 being stolen.

2. The summary did not record any explanation given by Ms Harris, but in her interview with the probation officer she explained that due to financial difficulties she had allowed a friend to cultivate cannabis in her shed and knew nothing about the rifle or the theft of electricity. 

The sentencing

1. Ms Harris has deposed that from the outset she wanted to put forward an explanation for the offending, which she attributes to her friend, Mr Henry.  She maintains it was his cannabis and he had said he would take responsibility for the offending.  For that reason she entered not guilty pleas to the charges and jury trial was elected.  That led to her being reassigned to John Day as her first counsel was not certified for jury trials.

2. Mr Day’s view was that Crown had a strong case.  Not only had Ms Harris rented the shed to Mr Henry so he could grow cannabis, but she assisted him by looking after the plants.  Mr Day devoted his efforts to the firearms and electricity theft charges.  She paid into court the amount of the stolen electricity, and the firearms charge was withdrawn when she pleaded guilty to the remaining charges.  He advised Ms Harris that when interviewed by probation she should take responsibility for the remaining offending.

3. Judge McDonald recounted the facts, describing the operation as reasonably sophisticated, and placed the offending within category two of R v Terewi, which attracts a starting point of two to four years imprisonment.[2]  He noted that at the age of 48, Ms Harris was a first time offender.[3]  The Judge noted that Ms Harris said she was not the principal offender, but it is not clear what weight was given to that in the sentence calculation.[4]  She was given a discount for previous good character, her guilty plea, her acceptance of responsibility, low risk of reoffending, and some health difficulties.[5]  Taking all that into account, the Judge reached an end sentence of six months home detention, with one month to be served concurrently for the theft charge.[6]

The appeal

[2]At [9], citing R v Terewi [1999] 3 NZLR 62 (CA) at [4].

[3]At [17].

[4]At [19].

[5]At [18]–[20].

[6]At [24] and [26].

1. Affidavits have been filed and we give leave to admit them as fresh evidence on appeal.  Ms Harris says that through counsel error she was never advised of her right to seek a discharge without conviction.  She did not realise that she could challenge the convictions short of disputing the charges at trial.  She says that an application for a discharge had reasonable prospects of success, for two reasons.

2. First, she says she was not the principal offender.  She agreed to rent the shed to Mr Henry to grow about 20 plants.  She did so because she was in financial difficulty; she owed a large amount of money to the Kaipara District Council for rates.  She did not share in the profits of the cannabis growing operation but was to be paid rent.  Mr Henry did not reliably pay the rent, and he ran a much larger growing operation than she had expected.  He became uncooperative when she sought to bring the arrangement to an end, and she says that although he was a friend he was connected to a gang and that made it difficult to assert herself.

3. Second, she says that the conviction will have serious consequences for her work in the television and media industry.

4. Mr Day accepts that Ms Harris found the court process confusing.  He says that he took care to explain what was happening.  However, he accepts that he very likely did not advise her that she could seek a discharge without conviction and a disputed facts hearing.  He focused rather on ensuring that she received an electronically monitored sentence, rather than imprisonment.

5. The Crown submits that Mr Day did not err in failing to seek a disputed facts hearing and pursue a discharge given that Ms Harris expressly acknowledged responsibility for the cannabis cultivation charge.  Further, a discharge without conviction is not appropriate in the circumstances because the consequences of the conviction are not out of all proportion to the gravity of the offending.  Ms Mildenhall points to a substantial number of text messages between Ms Harris and Mr Henry, collectively indicating that she took some responsibility for caring for the plants.  The texts also confirm that he sometimes did not pay rent and told her that it was “all my stuff not yours”.

Discussion

1. We are satisfied that the sentencing miscarried.  It is arguable that Ms Harris was a party to Mr Henry’s offending, and that her culpability is substantially lower than the number of plants would suggest.  The summary of facts does not mention Mr Henry at all.  The details of his involvement were not put before the Judge, seemingly because counsel was understandably concerned that Ms Harris should not be seen to deny responsibility.  In her dealings with counsel she maintained that she wanted to put forward her version of the facts, but she was not given an opportunity to do so.  It may be that this happened because of the change of counsel.

2. Ms Harris should have the opportunity to persuade a judge that the gravity of her offending was sufficiently low, in all the circumstances, to open the door to a reduced sentence.   We express no view as to the prospects of success for an application for discharge without conviction.  That will presumably require a disputed facts hearing and the outcome will depend on the evidence led there.  We will give her the opportunity to seek a discharge by quashing her sentences and remitting the proceeding to the District Court for resentencing. 

Result

1. The appeal is allowed. 

2. The sentences are quashed. 

3. The proceeding is remitted to the District Court for resentencing.

4. Ms Harris is remanded at large to appear at the District Court at Whangarei on a date to be set by that Court.

Solicitors:
Crown Law, Wellington for Respondent