Harris v The Queen
[2016] NZHC 3075
•15 December 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-000126
CRI-2016-409-000127 [2016] NZHC 3075
BETWEEN RUSSELL STAFFORD RICCARDO
HARRIS Appellant
AND
REGINA
First RespondentAND
NEW ZEALAND POLICE Second Respondent
Hearing: 13 December 2016 Appearances:
PHB Hall QC for Appellant
E J Henderson for CrownJudgment:
15 December 2016
JUDGMENT OF DUNNINGHAM J
[1] Russell Stafford Harris appeals his sentence of two years six months’
imprisonment on charges of:1
(a) conspiracy to commit aggravated robbery; (b) possession of a pistol; and
(c) possession of an offensive weapon in a public place.
1 R v Harris [2016] NZDC 20846.
[2] His counsel, Mr Hall QC, accepts, in the ordinary course, the sentence would be within range for the offending he pleaded guilty to. However, Mr Harris appeals on the basis that the sentence was manifestly excessive, having regard to the sentence that was imposed on his co-offender, Paula Hardaker, for her involvement in the first two charges.2
[3] The sole issue is whether, despite the sentence being otherwise sound, the disparity between the sentence imposed on the two offenders was so significant and lacking in justification, that a different sentence should be imposed on appeal.
The sentencing
[4] On 19 October 2016, Mr Harris, and his co-offender Ms Hardaker, were sentenced by Judge O’Driscoll. The sentencing proceeded in accordance with earlier sentencing indications given to the two co-offenders on 12 September 2016, where the Judge indicated that the starting point would be “no more than two and a half years’ imprisonment on the conspiracy and possession of a pistol charges and that there would be a guilty plea discount of 20 per cent”.
Mr Harris’s sentencing
[5] Mr Harris was sentenced first. The Judge discussed the relevant purposes and principles of sentencing, and then the circumstances of the offending. The conspiracy was to rob an individual known to be involved in drugs and expected to be carrying $12,000. The attack involved three people against the one, and the inference was that the pistol which was the subject of the firearms charge was going to be used in the attack. The Judge accepted that no violence actually occurred, but of course that was reflected in the lesser conspiracy charge.
[6] Mr Harris has a previous criminal history of violence and weapons-related offending, including convictions for assault and injuring with intent to injure in
2010, and offending involving possession of pistols in 2002 and 2010. Clearly this was relevant offending, and the Judge was entitled to take it into account when
sentencing.
2 R v Hardaker [2016] NZDC 20856.
[7] Ultimately the Judge resolved on a sentence (which he described as a starting point), of two years six months’ imprisonment after taking into account the aggravating features of the offence and the offender, before considering the charge of possession of an offensive weapon charge. To that extent, the sentence was in accordance with the earlier indication. The Judge then discounted that sentence by
20 per cent for guilty pleas, which was also in accordance with the earlier sentencing indication.
[8] In respect of the charge of possession of a samurai sword, the Judge imposed a six month cumulative sentence (after an apparent 25 per cent guilty plea discount). In sentencing on that charge, the Judge acknowledged that the appellant was a collector of swords, and that there was nothing sinister in the presence of the sword in the car, but that it should not have been visible.
Ms Hardaker’s sentencing
[9] Ms Hardaker’s sentencing took place immediately afterwards. The relevant principles and purposes were addressed, and the facts of the offending briefly traversed.
[10] In sentencing Ms Hardaker, the Judge foreshadowed the difference in what he describes as starting points, which he proposed to reach. Referring to the appellant, the Judge explained that he:3
…took a starting point of two and a half years’ imprisonment in respect of the conspiracy and possession of the pistol charge for him which in my view properly reflected his culpability and his previous convictions and those convictions included convictions for violence and for possession of a pistol.
[11] The Judge considered that, in respect of this offending, Ms Hardaker was a “first time” offender, in that her previous criminal history was slight and involved charges irrelevant to those on which she was being sentenced. The Judge also accepted counsel’s submission that she had got “caught up in both methamphetamine
and a methamphetamine addiction and got caught up with the wrong crowd”.
3 R v Hardaker, above n 2, at [7].
[12] Ultimately, the Judge resolved on a sentence of 18 months’ imprisonment, which he said reflected Ms Hardaker’s lack of criminal history, relative culpability, and personal circumstances. That sentence was then reduced by five months, for her guilty pleas. On breach of bail charges, which she alone faced, she was convicted and discharged.
[13] The appellant’s grounds of appeal are that his end sentence was manifestly excessive when compared with the sentence received by his co-offender. This was because:
(a) the starting point for all sentences was too high and inconsistent with the sentences imposed on the co-offender;
(b)the uplift imposed for his previous offending was excessive and resulted in unjustified disparity with the co-offender; and
(c) in all the circumstances an objective by-stander, knowing all the relevant facts and looking at the two sentences, would conclude that there was an unjustified disparity and that justice had gone wrong.
Principles on appeal
[14] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different
sentence should be imposed.4
[15] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. The relevant sentencing principles in this case include the need for parity between co-offenders. It is only if
the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion.5
[16] In the present case, as noted above, the appeal is grounded in the principle of disparity of sentence. However, as the Court of Appeal observed in R v Rameka,6 the mere fact a disparity, on its own, would not justify allowing an appeal: 7
The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground for necessarily interfering with a longer sentence passed on the other. What has to be shown is that the appellant has received too long a sentence. In each case the whole of the surrounding circumstances and the situation of the offender have to be taken into account and, as this Court has said previously, these factors vary infinitely. But it is true that there has been, of recent years, both in this country and in England, an increased willingness to take disparity of sentence into account when the disparity cannot be justified and is gross.
(citations omitted)
[17] In this case, the appellant submits that Ms Hardaker’s culpability was at least equal to his own. She was an instigator and “vital cog” in the operation to lure and rob a potential victim. In support of this, the appellant’s submissions recite sections of the intercepted conversations between Mr Harris and Ms Hardaker to demonstrate her role in setting up and planning the proposed robbery of the identified victim. The Judge improperly downplayed her role when he said that she “went along with the conspiracy because [she] wanted to get money to feed [her] methamphetamine addiction”. That statement minimised her involvement when in fact she was equally culpable in setting up the plan to commit aggravated robbery.
[18] Because the appellant considers the starting point for the two should be the same, then by adopting a starting point of 18 months for her, but uplifting that to
30 months for the appellant taking into account his culpability and previous record, the Judge has uplifted his sentence far more than is warranted by the fact of his
previous convictions, and that is an error.
5 Larkin v Ministry of Development [2015] NZHC 680.
6 R v Rameka [1973] 2 NZLR 592 (CA).
7 At 593.
[19] Mr Hall then points out the inconsistency in the reduction for a guilty plea which was 20 per cent for Mr Harris (as was signalled in the sentencing indication), but which was effectively a 27 per cent discount for Ms Hardaker.
[20] Finally, Mr Hall considers that the inconsistency was then further exacerbated by imposing a cumulative sentence on Mr Harris for the unrelated possession of an offensive weapon, being a samurai sword, which amounted to a further six months’ imprisonment. In imposing the sentence, he argues that the Judge failed to take into account or took insufficient account of the following factors:
(a) the appellant was a collector of ceremonial swords and produced evidence of this interest at sentencing;
(b)there was no evidence that the sword was to be used in a criminal way;
(c) the totality principle;
(d) the mandatory principle of imposing the least restrictive sentence;
(e) the desirability of consistency in sentences for similar offenders committing similar offences in similar circumstances; and
(f) having regard to the sentence imposed on Ms Hardaker, the fact that the sentence imposed was disproportionately severe.
Was the difference in “starting point” between the two co-offenders too high?
[21] The appellant’s position is that the only distinguishing feature between sentencing Ms Hardaker and Mr Harris on the aggravated robbery/pistol charges, was that Mr Harris had prior convictions. Having regard to the principle in Tamihana v R, an effective uplift of one year’s imprisonment, was therefore
manifestly excessive.8
8 Tamihana v R [2015] NZCA 169 at [27].
[22] One of the difficulties in this case is that what was described as the “starting point” (being the difference between the 18 months and two years six months), by the Judge, included all adjustments for aggravating and mitigating features of the offence and the offender and yet there was no explanation for how those adjustments were made, either in the sentencing indication or the sentencing exercise itself.
[23] That said, Mr Harris’s previous convictions were clearly serious, and were an aggravating feature, and there were other aspects which heightened the seriousness of the offending including the degree of premeditation, the fact there were three people involved in the conspiracy, the value of the target and the presence of the pistol. It can not be assumed that the Judge began from an 18 month starting point so that the difference between the sentences solely reflected Mr Harris’s previous record. Indeed, the Judge explained that, in imposing that on Mr Harris, this “properly reflected his culpability and his previous convictions … [including] convictions for violence and for possession of a pistol. I am satisfied that taking all these aggravating factors into account, the two and a half year sentence reached for Mr Harris was defensible.
[24] In sentencing Ms Hardaker, it is clear that the Judge accepted that she was “for all purposes really a first [time] offender” and in addition, the Judge accepted the submission made by her lawyer that “the aggravating factors that Mr Harris had are not present in your case”. In mitigation he accepted that her offending is explained by being “caught up in both methamphetamine and … with the wrong crowd”.
[25] While the Judge’s reasoning is not as explicit as it could be, it is clear that he accepts that taking into account both her personal circumstances and her lack of prior convictions, a sentence of 18 months’ imprisonment was appropriate before a discount for her guilty plea. While the appellant may not agree with the Judge’s conclusions, it cannot be said that the distinction he makes between the two co-offenders is unprincipled, illogical, or unable to be made on the facts.
[26] I accept there is no explanation for the Judge giving a greater discount for Ms Hardaker’s guilty plea than Mr Harris received, and one which was in excess of the principles set out by the Supreme Court in Hessell v R.9 However, of course it is not this Court’s role to correct errors relating to the sentencing of the co-offender by making adjustments to Mr Harris’s sentence that are not otherwise warranted.
[27] The final criticism of the sentencing exercise was that the Judge dealt with the charge relating to possession of an offensive weapon in a public place, being the samurai sword, cumulatively, so that the overall sentence for Mr Harris was one of two and a half years’ imprisonment. It is submitted that, having regard to the principles of totality the relative lack of seriousness of this offence and the discrepancy between Mr Harris’s sentence and Ms Hardaker’s, this sentence should be imposed concurrently, rather than cumulatively, to correct the overall sentence.
[28] However, the possession of the sword was a separate offence. There is no suggestion it formed part of the conspiracy offending unlike the possession of the pistol. The Judge was entitled to impose a sentence on that charge cumulatively and, as Ms Hardaker had no connection to this offending, there was no need to reference this aspect of the sentencing process to her sentence.
Conclusion
[29] While Mr Hall has raised questions about how the Judge took into account aggravating and mitigating features to reach a sentence of one and a half years’ imprisonment for Ms Hardaker and two and a half years for Mr Harris before the guilty discount, as well as over why the guilty pleas to these charges resulted in different levels of discount, I must still be satisfied that any errors in the sentencing exercise justify imposing a different sentence.
[30] On its own, as Mr Hall acknowledged, I consider the end sentence imposed on Mr Harris for the totality of the offending was reasonable. The Court is only required to intervene on the grounds of disparity when the difference is so significant, and so lacking in logic, that justice demands it to be adjusted to reflect
the principle in the Sentencing Act 2002 which emphasises the general desirability of consistency of sentencing levels in respect of similar offenders committing similar offences in similar circumstances.10 In my view, this is one of those cases where there are differences between the circumstances of the two offenders, in particular, the offending history, which warrants the distinction that the Judge made between the two co-offenders. While it could still be said that Ms Hardaker has been treated leniently, it cannot be said, in contrast, that Mr Harris has been treated so harshly in comparison with her, that it warrants intervention in the sentence on appeal.
[31] For this reason, the appeal is dismissed.
Solicitors:
PHB Hall QC, Barrister, Christchurch
Raymond, Donnelly & Co., Christchurch
0
2
0