R v Harper - [2007] NZCA 438

IN THE COURT OF APPEAL OF NEW ZEALAND

CA387/07 [2007] NZCA 438

THE QUEEN

v

DENIS JOHN HARPER

Hearing: 20 September 2007
Court: Ellen France, John Hansen and Wild JJ Counsel: W C Pyke for Appellant
D R La Hood and C A Patterson for Crown

Judgment: 12 October 2007 at 11.30 am

JUDGMENT OF THE COURT

The appeal, both as to conviction and sentence, is dismissed

REASONS OF THE COURT

(Given by Wild J)

R V HARPER CA CA387/07 12 October 2007

Introduction

[1] Mr Harper appeals his conviction and sentence following trial in the District Court at Hamilton on two charges of damaging fibre-optic cabling with intent to obtain a benefit on 9 and 10 May 2006. He was sentenced to nine months imprisonment and ordered to pay reparation of $5,000. Judge O’Driscoll granted Mr Harper leave to apply for home detention and deferred the commencement of his prison sentence.

[2] The submission on the conviction appeal is that the jury, properly following Judge O’Driscoll’s directions, could not reasonably have inferred guilt on the circumstantial evidence which comprised the Crown case.

[3] Although Mr Pyke did not formally abandon the sentence appeal, he felt unable to argue that the sentence was wrong or manifestly excessive.

Factual background

[4] Fibre-optic and copper cables in different parts of the Te Rapa shunting yards were cut on 6, 9 and 10 May. On the last of those dates a rope was found around some of the cables. It appeared considerable force had been used to try and pull the cables from their trench. The Crown case was that whoever did this was trying to steal the cables for their scrap metal value.

[5] Mr Harper owned a distinctive white Nissan Primera registration CCG753. Various witnesses saw this vehicle in the Te Rapa yards on 9 and 10 May. Mr Harper was not identified as the driver.

[6] On the night of 10/11 May a lookout was kept at the yards, in case the culprits returned. At about 1.30 am on 11 May Mr Harper’s vehicle came into the yards. There were two people in the vehicle. They got out and the passenger attempted to take the concrete lid off a cabling trench while the driver stood by watching. Both men appeared to walk normally. They left in the vehicle without doing any damage.

[7] At 3 am, one and a half hours after his vehicle was seen in the Te Rapa yards, Mr Harper was stopped in his vehicle in a Hamilton street. He was alone. He said no one else had driven his vehicle that night. He said he had been into the Te Rapa yards earlier that evening, looking for a mate called “Bruce”. He maintained that was the only time he had ever been there. He then said he had been there on another occasion, but about six months earlier. When pressed further he said he did not want to say anything else and added “It’s not me…

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 R v Harper

Details

AGLC: R v Harper [2007] NZCA 438
Case: [2007] NZCA 438
Decision Date: 12 October 2007

CaseChat Overview and Summary

In R v Harper, the appellant, Denis John Harper, sought to appeal against both his conviction and sentence following his trial in the District Court at Hamilton. Harper was convicted on two charges of damaging fibre-optic cabling with intent to obtain a benefit on 9 and 10 May 2006. The Crown alleged that Harper drove the principal offender(s) to the Te Rapa yards in his vehicle, and then drove them away again, or used his vehicle to try to pull the cables out of their trench with a rope found tied partly around some of the cables in the Te Rapa yards and partly on the towing eye of his vehicle. Harper was sentenced to nine months imprisonment and ordered to pay reparation of $5,000. Judge O’Driscoll granted Harper leave to apply for home detention and deferred the commencement of his prison sentence.

The appeal against conviction argued that the jury could not reasonably have inferred guilt on the circumstantial evidence which comprised the Crown case. The appeal against sentence was not formally abandoned, but the appellant’s counsel felt unable to argue that the sentence was wrong or manifestly excessive. The court considered the appeal against conviction, which was based on the argument that the jury could not find Harper guilty based on his car's presence in the railyards, or even based on an inference of his presence. The jury had to find that Harper was actively involved, helping in the acts of damage. The Crown’s case was that Harper’s role in this offending comprised driving the principal offender(s) who cut the cables to the Te Rapa yards in his vehicle, and/or using his vehicle to try to pull the cables out of their trench with the rope found tied partly around some of the cables in the Te Rapa yards and partly on the towing eye of his vehicle. The court found that the trial judge had put the Crown case accurately and fully in his summing up to the jury. The appeal against conviction was dismissed.

The court also dismissed the appeal against sentence. The court considered Harper’s circumstances, which ruled out a fine, and the pre-sentence report, which considered him unsuitable for community work and reported that supervision was not warranted. The sentencing options thus reduced to reparation and imprisonment. The court found that a sentence of nine months imprisonment was merciful, given the cost of repairing the damage to the cables and the potential endangerment to human life. The court also noted that the Judge ordered Harper to pay $5,000 reparation, which remitted his $2,000 outstanding fines. Both the appeal against conviction and the appeal against sentence were dismissed.

The final orders of the court were that the appeal, both as to conviction and sentence, was dismissed.

Orders