Harris v The Queen - [2004] NZCA 46

IN THE COURT OF APPEAL OF NEW ZEALAND
CA406/03
THE QUEEN
v
ROBERT HENRY HARRIS
Hearing:10 March 2003

Coram:Glazebrook J
John Hansen J
Ronald Young J
Appearances: R J Stevens for Appellant

A M Powell for Crown

Judgment:5 April 2004

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction
[1]       On 2 October 2003 a jury in the District Court at Wellington found Mr Harris guilty of one count of wilful damage. He was sentenced to 100 hours of community service. Mr Harris appeals against that sentence.
Background
[2]       Mr Harris had been subject to 15 charges of wilful damage, 14 of which were dismissed during the hearing, 12 by way of discharge under s347 of the Crimes Act 1961 and two by way of not guilty verdicts on the part of the jury. The complainant in all cases was a man with whom Mr Harris had fallen out some years before over a business venture.
[3]       The charge on which Mr Harris was found guilty related to an incident on 21 July 2002, in the early hours of the morning. Mr Harris was driving past the complainant’s address and sprayed “[MC] is a cunt” on the complainant’s garage and a wall. He claimed in evidence that he had merely added to similar graffiti already present. The graffiti had been able to be cleaned off and Mr Harris contributed $2,000 to the cost of that.
Sentencing remarks
[4]       Dalmer DCJ began by reflecting that Mr Harris knew more about the damage than he had let on. He said:
Whether you were directly involved, whether you knew what others were doing, is a matter between you and your conscience. But by withholding information that could have assisted the complainant, I think you showed yourself to be mean spirited, your actions were cruel and certainly not those that any decent person would espouse.

The Judge continued:
The complainant has putting it bluntly, been put through hell since October 2001. They have never known when they woke up each morning what the night might have brought and on close to 20 occasions now, substantial paid or corrosive damage to their walls, garage and/or cars has occurred. There was at least one occasion in which you were found parked nearby revelling in what you saw at that time. I cannot give you credit for an early plea of guilty. You played hardball throughout the course of this case and it seems to me that if you had not blurted out to the investigating detective what you did say on 31 October, that it is very doubtful that you would have made any further admission.

[5] The Judge went on to state that he had to sentence Mr Harris on the basis of what had been found proved by the jury and that he had to put aside any suspicions in relation to other matters that had been resolved in Mr Harris’ favour.
[6] The Judge then recorded that the damage, even on this one…

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 [2004] NZCA 46
Case: [2004] NZCA 46
Decision Date: 5 April 2004

CaseChat Overview and Summary

The appeal by Robert Henry Harris against his sentence was heard by the Court of Appeal of New Zealand. Harris had been found guilty by a jury in the District Court at Wellington of one count of wilful damage and was sentenced to 100 hours of community service. Harris' appeal centred on the severity and appropriateness of the sentence imposed on him for the offence of spray-painting derogatory graffiti on the property of a former business associate. The case involved a complex background of ongoing disputes between the parties, with Harris facing multiple charges of wilful damage, most of which were dismissed.

The primary legal issue the Court of Appeal had to decide was whether the sentencing judge had appropriately considered the relevant factors under the Sentencing Act 2002 in imposing the 100 hours of community service on Harris. The defence argued that the judge was influenced by suspicions of Harris' involvement in other offences, which tainted the sentencing process. Additionally, the defence contended that the judge failed to adequately consider Harris' personal circumstances, including his medical condition and the offer of reparation, in determining the sentence. The Crown, on the other hand, maintained that the sentence was appropriate and within the available range, given the nature and impact of the offence.

The Court of Appeal found merit in the defence's argument that the sentencing judge was indeed influenced by suspicions about Harris' involvement in other offences, despite the judge's assertion to the contrary. The Court concluded that the judge's language and reasoning reflected an inappropriate influence, and that the judge failed to sufficiently articulate the reasons for choosing community service over other sentencing options. Consequently, the Court allowed the appeal, quashed the original sentence, and imposed a fine of $1,000, considering Harris' financial circumstances and the reparation already paid.

Orders