Harrison v Police

[2019] NZHC 1281

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-000009

[2019] NZHC 1281

BETWEEN

SAM TE PUEA HARRISON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

6 June 2019

Counsel:

S Thode for Appellant

KJG MacNeil for Respondent

Judgment:

7 June 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 7 June 2019 at 2 pm.

Registrar/Deputy Registrar

Solicitors:

Thode Utting, Auckland. Crown Solicitor, Whangarei.

HARRISON v POLICE [2019] NZHC 1281 [7 June 2019]

The appeal

[1]                 Mr Sam Harrison appeals his 20-month prison sentence on the basis it is manifestly excessive.1

Background

[2]                 Mr Harrison pleaded guilty to three charges: male assaults female, and two charges of breaching release conditions. Mr Harrison was released from prison on  20 June 2018. He was required to report every week. On 17 September 2018, he did not. More significantly, Mr Harrison repeatedly visited the complainant—his former partner—without the approval of his probation officer.   This led to violence.   On     6 November 2018, Mr Harrison went to the complainant’s home. She screamed at him to leave. Mr Harrison chased her—and punched her three times to the head. It appears Mr Harrison believed the complainant had contacted the Police about him; he said to her, “I told you what I’d do if you got the Police onto me”. The complainant managed to escape.

[3]                 Mr Harrison gave chase. He tackled her in the middle of the road.  Cars had to stop. Mr Harrison held the complainant down, and then took her phone. Fortunately, Police arrived quickly. Mr Harrison was still on top of the complainant when they did. The complainant suffered a swollen cheek and ear.

[4]                 Mr Harrison said he was just trying to get the complainant’s phone off her. And, wanted money.

[5]Mr Harrison pleaded guilty to the charges.

Sentencing

[6]                 Judge D J McDonald adopted a 16-month start point on the male assaults female charge. The Judge deducted three months for the guilty plea. The Judge imposed a seven-month cumulative term on the breach charges.

1      Police v Harrison [2019] NZDC 2921.

Argument

[7]                 Mr Harrison contends the 16-month starting point was too high. He also contends a cumulative term on the breach charges was unwarranted, and in any event, a seven-month addition too much.

Analysis

[8]                 The crime of male assaults female has a maximum penalty of two years’ imprisonment.2 No guideline judgment exists. So, Courts tend to look at other like cases  for  guidance.   Mr  Harrison  argues  his  case  is  like  or  less  serious  than  R v Reihana,3 and Nixon v R.4

[9]                 Mr Reihana visited his former partner’s home. He could do so, providing one of the children was not there. That child was. The complainant told Mr Reihana to leave. It is possible she pushed him. Mr Reihana punched her once to the face. The complainant suffered a nasty swollen eye and split eyebrow. The first-instance Judge imposed a 10-month term of imprisonment. The Court of Appeal quashed this. It substituted a five-month prison term with leave to apply for home detention.

[10]              Mr Nixon was told by his flatmate he was messy. Mr Nixon told her to leave. When she did not,  Mr Nixon  pushed  her.  The complainant  fell  onto  concrete.  Mr Nixon then kicked her three times to the back. The complainant suffered bruising. The Court of Appeal upheld the sentence of 12 months’ imprisonment. But, described it as “firm”.5

[11]              Mr Harrison’s offending is much more serious than that of Mr Reihana and Mr Nixon. Mr Harrison was prohibited from seeing the complainant (absent permission). So, he should not have been at her home. His attack on her was not the first. Indeed, Mr Harrison had been released from prison only four-and-a-half months’

2      Crimes Act 1961, s 194(b).

3      R v Reihana CA143/03, 3 July 2003.

4      Nixon v R CA87/01, 19 June 2001.

5 At [26].

earlier for serious violence against the complainant.6 The assault involved multiple blows to the head. As will be recalled, the complainant then ran away. Mr Harrison chased and attacked her a second time—in the middle of the road. It follows the violence was sustained. True, the complainant’s injuries were modest. However, the other features just described mean this case is a bad example of its kind. The starting point was available for this reason.

[12]              The offence of breaching release conditions is punishable by up to 12 months’ imprisonment.7 It can attract a cumulative term. QM v Police is instructive.8 QM was sentenced to 26 months’ imprisonment for breaching a protection order, breaching release conditions, resisting arrest and male assaults female. The defendant kicked the complainant and tried to push her to the ground. A protection order existed. When Police arrived, QM resisted arrest. All this occurred within weeks of QM’s release from prison, and in contravention of release conditions.

[13]              QM argued the last aspect should not have attracted a cumulative sentence. French J disagreed. Her Honour noted this offence was “different in kind” to the offences of violence, and the defendant had a history of breaching orders.9

[14]              The same analysis is applicable to Mr Harrison. His offences are different in kind too. And, as Judge McDonald noted, Mr Harrison had 10 earlier convictions for breach of release conditions. Denunciation was the primary sentencing objective.

[15]              Imposition of a seven-month cumulative term involved an element of double counting, because Mr Harrison’s breach of release conditions influenced the starting point on the male assaults female charge. And as Mr MacNeil for the Crown very properly observed, the Judge does not appear to have mitigated the cumulative term in recognition of Mr Harrison’s guilty pleas to the breach charges.

6      Mr Harrison assaulted the complainant on 29 July 2017. He received a 14-month term of imprisonment on 29 March 2018. Mr Harrison’s record discloses at least two other offences in relation to the complainant. On 26 and 27 October 2016, Mr Harrison assaulted her with intent to injure, and as a male. He received a nine-month prison sentence on 27 April 2017.

7      Sentence Act 2002, s 96(1).

8      QM v Police HC Christchurch CRI-2010-409-216, 11 February 2010.

9 At [18].

[16]              However, the ultimate question is whether the sentence is manifestly excessive. It is not. The offending involved serious domestic violence by an offender with a history of like violence against the same victim. As observed, denunciation was the primary sentencing objective. And, the offending was at least as bad as that in QM.

[17]The appeal is dismissed.

……………………………..

Downs J