Harris v The Queen - [2013] NZCA 218

IN THE COURT OF APPEAL OF NEW ZEALAND

CA33/2013 [2013] NZCA 218

BETWEEN
RUSSELL STAFFORD RICARDO HARRIS

Appellant

AND

THE QUEEN Respondent

Hearing: 15 May 2013

Court:

French, Goddard and Ronald Young JJ

Counsel:

T W Fournier for Appellant
J E Mildenhall for Respondent

Judgment:

11 June 2013 at 12.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

The appellant pleaded guilty on indictment to one count of injuring with reckless disregard for the safety of others and one count of assault. He was sentenced by Judge Saunders in the District Court at Christchurch to a total of nine months’ imprisonment, to be served cumulatively upon a four year prison sentence imposed on unrelated charges of manufacturing methamphetamine and possession of firearms.[1] At the time of the subject offending the appellant was on electronically monitored bail whilst awaiting sentence for the drug offending. He was also undertaking a sentence of community service for driving whilst disqualified.
[1]R v Harris DC Christchurch CRI-2010-009-14778, 13 December 2012.
He appeals the sentence imposed on three grounds: that it is manifestly excessive; that the Judge failed to take provocation into account; and that the Judge failed to consider or apply the totality principle

Background facts

The offending arose out of a perceived traffic incident involving a motor car being driven by the appellant’s sister and another motor car which was towing a trailer. The incident apparently occurred at a point where a two lane carriageway reduced to one. It is said the appellant’s sister’s vehicle was pushed towards the curb by the other car. There was some verbal abuse directed at the driver by the appellant.
A further incident then occurred when the appellant’s sister attempted to stop the other vehicle in the middle of the road. It is said this was in order to obtain the other driver’s details. As a result of the second incident, both vehicles sustained some damage. The appellant and his sister then followed the vehicle to its destination and parked outside the address. They went onto the property and confronted the driver and his partner, who was waiting outside for him. Their attempts to obtain the name and details of the other driver for the purpose of rectifying damage to the sister’s car appear to have been unsuccessful, and some verbal abuse was then directed at the driver and his partner by the appellant and his sister.
According to the summary of facts, the appellant’s sister then picked up a chair and assaulted the other driver, who defended himself with a small spade. The chair rebounded off the spade and struck the appellant’s sister in the face, causing a cut over her eye. There is a dispute as to how the sister actually received her injuries, but that is not material to this appeal. What is material is the appellant’s statement that at the time his sister was injured he was walking back to…

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 [2013] NZCA 218
Case: [2013] NZCA 218
Decision Date: 11 June 2013 at 12.00 pm

CaseChat Overview and Summary

In the case of Harris v The Queen, the appellant, Russell Stafford Ricardo Harris, appealed against his sentence for injuring with reckless disregard for the safety of others and assault. The sentencing decision was made by Judge Saunders in the Christchurch District Court, which imposed a total sentence of nine months’ imprisonment to be served cumulatively on a pre-existing four-year prison sentence for unrelated charges. The appellant argued that the sentence was manifestly excessive, that the Judge failed to take provocation into account, and that the Judge did not consider or apply the totality principle. The appeal was heard by French, Goddard, and Ronald Young JJ, and the judgment was delivered by Goddard J on 11 June 2013.

The legal issues in this case were whether the sentence imposed was manifestly excessive, whether the Judge failed to take provocation into account, and whether the Judge failed to consider or apply the totality principle. The appellant argued that the starting point of 12 months’ imprisonment was too high, and that the Judge may have confused the photographs of the injuries. Furthermore, the appellant submitted that the Judge did not appear to have taken the fact of the provocation into account and did not specify what the appropriate increase for the aggravating factors was before giving credit for the guilty pleas. The Crown submitted that the decision in Samuel v R provides the most relevant guidance, and that the starting point adopted by the Judge of 12 months’ imprisonment cannot be regarded as manifestly excessive.

The Court found that the Judge referred to the decision in R v Harris as providing the relevant sentencing guidance, as Nuku v R did not apply at the time the appellant was sentenced. The Court noted that the bands in Harris were directed at situations where the intent on the part of the offender and the actual injury suffered broadly correspond. The Court also stated that the appropriate starting point is to be determined by reference to all of the circumstances of the offending, including the intent involved, any aggravating features, and the nature of the injuries sustained. The Court concluded that the starting point adopted by the Judge of 12 months’ imprisonment could not be regarded as manifestly excessive and that the end sentence of nine months’ imprisonment was appropriate and well within range, given there were two victims and even taking into account the guilty pleas.

The appeal was dismissed, and the sentence imposed by the District Court was upheld.

Orders