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

1. 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.

2. 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

1. 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.

2. 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.

3. 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 their car, having given up on obtaining any details.  On hearing his sister cry out he turned around and saw that she was bleeding from the face and thought she had been assaulted by the other driver, wielding a spade.

4. This belief led the appellant to return and grab the man by his top and punch him twice in the side of the head with a closed fist. 

5. A third person at the address then dragged the male victim inside the building and closed the door.  This was followed by the appellant kicking in the door, although no charges arose from that. 

6. Before departing the appellant picked up a chair and threw it in the direction of the doorway.  The chair struck the male victim’s partner, who was still standing outside the building.  She suffered bruising to her forehead, and a bleeding and bruised nose.

7. The appellant returned to the property approximately 10 minutes later with another associate and continued abusing the occupants of the property, trying to entice a fight.  He is said to have left when told the police had been called.

8. At sentencing it was emphasised on behalf of the appellant that his reason for punching the male victim, kicking the door to the property and throwing the chair which struck the female victim was his belief that his sister had been seriously assaulted by the male victim using the spade.

The sentencing decision

1. By the time of sentencing for these matters the appellant had already been sentenced to a term of four years’ imprisonment for the methamphetamine and firearms offending.[2] 

   [2]R v Harris [2012] NZHC 2942.

2. The sentencing Judge dealt with the background facts, as contained in the summary before the Court, very briefly.  He then referred to the appellant’s history, including a prior conviction for threatening to kill, and observed that as the appellant was already serving a considerable term of imprisonment, the subject offending could only be marked by an additional term of imprisonment.  He took as the lead offence the count of injuring with reckless disregard, citing the relevant case of R v Harris.[3]  It seems the Judge accepted the Crown’s submission that band two in Harris was applicable.

   [3]R v Harris [2008] NZCA 528.

3. After referring to the credit to be accorded to the appellant’s guilty pleas as somewhat limited, the Judge adopted a starting point of 12 months’ imprisonment out of a maximum of five years’ imprisonment.  He acknowledged that some uplift was required to recognise the appellant’s prior convictions and also the fact the subject offending had been committed whilst on bail.  He did not articulate the degree of uplift.

4. Taking into account the guilty pleas as the only mitigating factors, the Judge arrived at an end sentence of nine months’ imprisonment on the lead charge, with a concurrent sentence of six months’ imprisonment for the assault on the male victim.  This appears to have allowed for a 25 per cent discount for the guilty pleas. 

5. The end sentence of nine months was imposed cumulatively on the sentence of four years’ imprisonment already being served.  The Judge noted that for practical purposes this would affect the appellant’s parole eligibility by three months, but he would still be entitled to approach the Parole Board at the one-third point of his overall sentence.

The issues on appeal

1. Mr Fournier submitted that the lead offence of injuring with reckless disregard should have been regarded as coming within band one in Nuku v R[4] and that an analysis of the aggravating factors in R v Taueki triggered only one relevant factor in the appellant’s case: namely, use of a weapon – the chair.[5]  As the relevant mens rea was recklessness and not a specific intent to injure, a starting point of 12 months’ imprisonment was too high.  Mr Fournier submitted the Judge may have adopted such a high starting point because he had erroneously thought the female victim’s injuries were more severe than they in fact were.  Photographs of injuries to the appellant’s sister had been submitted at sentencing, showing cuts through the sister’s left eyebrow and by her left eye.  The Judge also had before him a photograph of the female victim showing an abrasion to her forehead and nose which did not appear to be as severe as the sister’s injury.  Mr Fournier suggested the Judge may have confused the two sets of photographs.

   [4]Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

   [5]R v Taueki [2005] 3 NZLR 372 (CA) at [31].

2. Mr Fournier further submitted that the appellant’s assault on the male victim and his subsequent throwing of the chair had to be measured against the circumstance of provocation occasioned by his perception that his sister had been assaulted and injured by the male victim.  However, the Judge did not appear to have taken the fact of that provocation into account.

3. Mr Fournier said it was not accepted that the appellant himself returned to the property 10 minutes later or that anyone did so on his behalf.  However, this was not disputed at the sentencing.

4. Mr Fournier accepted that it was appropriate to uplift the starting point on account of the offending having occurred while on bail and for the appellant’s previous offending.  However, he said that whilst the Judge had adverted to those matters he had not specified what the appropriate increase for these factors was before giving credit for the guilty pleas. 

5. Mr Fournier’s essential submission was that the end sentence of nine months’ imprisonment, cumulative on the four years’ imprisonment already being served by the appellant, was manifestly excessive.  In his submission, something in the range of three to four months as a total sentence would have been appropriate and he asked that an increase of two to three months’ imprisonment be considered as an appropriate end sentence.

Discussion

1. There is no issue as to whether a cumulative sentence was required.  The appellant was already serving a term of imprisonment for prior serious offending and to have imposed a further sentence other than cumulatively would have amounted to no sentence at all.

2. The Judge referred to the decision in R v Harris as providing the relevant sentencing guidance,[6] as Nuku v R, referred to by Mr Fournier in his submissions, did not apply at the time the appellant was sentenced.[7]  In any event, as Crown counsel pointed out, the Court in Nuku expressly declined to comment on cases where the mens rea is reckless disregard for the safety of others, because of the other considerations likely to arise.

   [6]R v Harris, above n 3.

   [7]Nuku v R, above n 4.

3. The Crown submitted that the decision of this Court in Samuel v R provides the most relevant guidance.[8]  In Samuel 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 said:[9]

   ... In that situation it would be appropriate to sentence by reference to the seriousness of the injury suffered.  Here the circumstances are different.  While the mental state of the appellant involved an intention to injure his physical act involved only an assault.  In the absence of the broad correspondence between the nature of the act and the relevant intention, as discussed in Harris, we consider 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.

   [8]Samuel v R [2012] NZCA 376.

   [9]At [14].

4. Applying the broad approach suggested in Samuel to all of the circumstances of the appellant’s offending, the starting point adopted by the Judge of 12 months’ imprisonment cannot be regarded as manifestly excessive.  Although the decision in Nuku did not apply, reference to the aggravating factors listed at [31] of Taueki as indicating a starting point of up to three years’ imprisonment provides a relevant yardstick.  The factors present in the appellant’s offending are not confined to the use of a weapon, but include attacking the head of the male victim with direct blows and entering onto someone else’s property.  The degree of recklessness involved in throwing a chair which hit an innocent bystander in the face required a starting point of 12 months’ imprisonment.  Even if the appellant were responding to perceived provocation, that would have been spent by the time he came to throw the chair and should have made no difference to the sentence.  Whilst the Judge did not specify which band in Harris he was adopting, it is clear he regarded the offending as falling within the second band. 

5. Whether there was any confusion on the part of the Judge in relation to which photograph depicted the female complainant and which depicted the appellant’s sister is of no consequence.  The fact is that a chair was thrown by a man which hit a woman in the face and caused her some injury.  A reading of the victim impact statements filed by both victims establishes that both were also quite traumatised by the whole incident.

6. In any event, when the sentencing exercise is analysed, it seems clear that the Judge’s real starting point must have been nine months’ imprisonment, not 12 months.  We say that because had the starting point been 12 months, that would have resulted in an end sentence of 11 months, taking into account an uplift of say three months for the prior offending, and offending while on bail, with the maximum permissible discount of 25 per cent for the guilty plea.  The appellant therefore does not have any cause for complaint.

7. On application of the totality principle, the end sentence of nine months’ imprisonment that was imposed must be regarded as appropriate and well within range, given there were two victims and even taking into account the guilty pleas.

Outcome

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent