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.

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REASONS OF THE COURT

(Given by Miller J)

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.

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.
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

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.
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…

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 The Queen

Details

AGLC: Harris v The Queen [2020] NZCA 553
Case: [2020] NZCA 553
Decision Date: 9 November 2020 at 11.00 am

CaseChat Overview and Summary

In the case of Harris v The Queen, the appellant, Amanda Jane Harris, appealed against her conviction and sentence of six months home detention on charges of cultivating cannabis and theft of electricity. The appeal was heard by Miller, Brewer, and Moore JJ. Counsel for the appellant was H G de Groot, while J E Mildenhall represented the respondent. The judgment was delivered on 9 November 2020. Harris sought a discharge without conviction, arguing that she was not informed of this right during sentencing in the District Court. The court concluded that she should have the opportunity to be resentenced.

The court considered whether Harris was correctly informed of her right to seek a discharge without conviction during the sentencing process. Harris maintained that she was not the principal offender and that her involvement in the cannabis cultivation was due to financial difficulties. She claimed that she rented the shed to a friend, Mr Henry, who operated a larger growing operation than anticipated. Harris also argued that her conviction would have severe consequences for her work in the television and media industry. The Crown submitted that Harris's culpability was not significantly lower, and that a discharge without conviction was not appropriate given the gravity of the offending.

The court found that the sentencing miscarried as Harris was not given the opportunity to present her version of the facts. The summary of facts did not mention Mr Henry, and his involvement was not put before the judge. The court quashed Harris's sentences and remitted the proceeding to the District Court for resentencing, allowing her to seek a discharge without conviction. Harris was remanded at large to appear at the District Court at Whangarei on a date to be set by that court.

Orders