Harrison v The Queen - [2012] NZCA 498

IN THE COURT OF APPEAL OF NEW ZEALAND

CA333/2012
[2012] NZCA 498

BETWEEN ZURIAL JOHN THOMAS HARRISON
Appellant

AND THE QUEEN
Respondent

Hearing: 29 October 2012

Court: Harrison, Chisholm and Ronald Young JJ

Counsel: K Clews for Appellant
M D Downs for Respondent

Judgment: 29 October 2012

ORAL JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

On New Years Eve 2010 the appellant had attended a New Years Eve party on Waiheke Island. While waiting to get a bus to catch the ferry back to Auckland, he approached the victim and punched him once on the right hand side of his face. The victim was knocked out. The appellant then stomped on the victim’s head with his right foot.
Judge Wade in the District Court sentenced the appellant to 21 months’ imprisonment.[1] The appellant submits the sentence was manifestly excessive. He says a sentence of home detention should have been imposed.

Further facts and sentencing

[1] R v Harrison DC Auckland CRI-2011-004-273, 13 April 2012.

The appellant’s punch was entirely unprovoked. It knocked the victim out and he fell to the ground. His head landed on a concrete half round drain. While the victim was unconscious, the appellant lifted up his right foot and stomped on the left side of the victim’s head. The victim’s head struck the concrete drain with significant force and made a loud cracking sound. The appellant then ran off.
The victim was treated at the scene and then taken to Auckland Hospital for treatment. He had a fractured skull, swelling and bruising to the brain and a clot which required medical treatment for a week at Auckland Hospital. After his discharge he continued to bleed and had to return to hospital. He required hospital treatment for every week for the following three months. He has suffered permanent harm from the assault; a 10 per cent hearing loss in his left ear and he cannot work long hours because his brain damage has caused a lack of concentration.

District Court

The Judge identified the relevant background facts and the victim impact. He noted that on the seventh night in hospital the appellant had apparently visited the victim and apologised in person. The Judge said that the assault had changed the victim’s life permanently for the worse.
The Judge considered that the offending fell into band three of R v Harris and that the proper starting point was two years and eight months’ imprisonment.[2] The Judge noted that the original charge had been causing grievous bodily harm with intent but that had been reduced to one of injuring with intent to injure at the Crown’s request. The Judge deducted 25 per cent for the appellant’s guilty plea and a further five per cent for his remorse.
[2] R v Harris [2008] NZCA 528.
The Judge concluded that the offending was simply too serious to justify a sentence of home detention. He said:
I…

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 Harrison v The Queen

Details

AGLC: Harrison v The Queen [2012] NZCA 498
Case: [2012] NZCA 498
Decision Date: 29 October 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against sentence in the case of Harrison v The Queen. The appellant, Zurial John Thomas Harrison, was convicted of injuring with intent to injure, after an unprovoked assault on a victim on New Year's Eve 2010. The appellant punched the victim, rendering him unconscious, and then stomped on his head, causing severe injuries. The District Court Judge sentenced the appellant to 21 months' imprisonment, which the appellant argued was manifestly excessive and that a sentence of home detention should have been imposed instead. The appeal court had to decide whether the original sentence was appropriate and whether the appellant's arguments for a reduced sentence were valid.

The central legal issue in this case was whether the sentence imposed by the District Court was appropriate given the severity of the offence and the appellant's mitigating factors. The court had to consider the nature of the assault, the extent of the injuries inflicted, the appellant's guilty plea, and his expression of remorse. The appellant argued that his short period of imprisonment served should lead to a reduced sentence of home detention. The court also had to determine the importance of deterrence and denunciation in sentencing for such serious offences.

The Court of Appeal found that the District Court Judge had appropriately considered the seriousness of the offence and the need for deterrence and denunciation. The court acknowledged that the appellant's actions were unprovoked and caused severe and permanent harm to the victim. Given the gravity of the assault and the resulting injuries, the court agreed that the sentence of 21 months' imprisonment was appropriate. The appellant's arguments for a sentence of home detention were rejected as the court found that the offending was too serious to justify such a sentence. The appeal court upheld the original sentence, finding no error in the District Court's approach.

The Court of Appeal dismissed the appellant's appeal against sentence, maintaining the original 21-month imprisonment sentence. The court found that the sentence was appropriate given the severity of the assault and the need for accountability, deterrence, and denunciation.

Orders