R v Harries - [2013] NZHC 359

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-069-251 [2013] NZHC 359

THE QUEEN

v

DAVID JOHN HARRIES

Hearing: 28 February 2013

Counsel: R G Douch for Crown
D J Allan for Prisoner

Judgment: 28 February 2013

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, PO Box 19173, Hamilton
Counsel:
D J Allan, PO Box 4443, Hamilton

R V HARRIES HC HAM CRI 2012-069-251 [28 February 2013]

Introduction

[1] David John Harries, you appear for sentence today having pleaded guilty in this Court to the following offences:

(a) First, count 1; a charge of manufacturing the Class A controlled drug methamphetamine, between 1 November 2011 and 15 February 2012 at Taupo

(b)Second, counts 4 and 5 of the indictment; in which you are charged with possessing methamphetamine for supply. One of those relates to an incident in Auckland on 18 November 2011 and the other to one in Taupo on 15 February 2012.

(c) Counts 6 and 7 alleged possession of a precursor substance for the manufacture of methamphetamine, namely pseudoephedrine. The charges arise out of the incident in Auckland on 18 November 2011 and in Taupo on 15 February 2012.

[2] During the course of today’s sentencing hearing, you instructed your counsel that you would plead guilty to an amended charge on count 2. You were arraigned on an amended charge of possessing equipment for the purpose of manufacturing methamphetamine. This charge relates to the period between 1 January 2011 and 15
February 2011 and occurred in Kawhia.

[3] The lead charge of manufacturing methamphetamine carries a maximum penalty of life imprisonment.

[4] On counts 3, 8 and 9 of the amended indictment the Crown has offered no evidence. On those charges you are discharged under s 347 of the Crimes Act 1961. That has the effect of an acquittal on those three counts.

[5] Mr Harries, this is not the first time on which you have appeared for sentence in this Court on methamphetamine related offending. On 23 July 2008, you were sentenced by Allan J to an effective term of imprisonment of three years on offending that included a charge of possessing methamphetamine for supply.1 The Judge indicated that a sentence of two years and six months imprisonment would have been appropriate for that charge alone.2

[6] At the time you committed the February and November 2011 offending which is the subject of this sentencing, you had been released from the sentence imposed by Allan J on parole. However, you were subject to an interim recall order made by the Parole Board on 23 December 2010, of which you were aware. Notwithstanding that knowledge, it appears that a District Court Judge was persuaded to grant bail when you first appeared following arrest on 18 November
2011.

[7] I treat the February 2012 offending as having occurred while you were on bail even though, strictly speaking, bail should not have been granted and you should have been returned in terms of the interim recall…

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 Harries

Details

AGLC: R v Harries [2013] NZHC 359
Case: [2013] NZHC 359
Decision Date: 28 February 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Hamilton Registry, David John Harries appeared for sentencing on charges of manufacturing, possessing, and possessing equipment for the manufacture of methamphetamine. The court had to determine the appropriate sentence for Harries, who had a history of similar offences and had committed the current crimes while on bail and subject to a parole recall order. The primary legal issue was to establish an appropriate sentence that met the needs of denunciation, deterrence, and accountability, while also considering mitigating factors such as Harries' health issues.

The court began by identifying a starting point of 16 years imprisonment for the manufacturing charge, considering the large quantities involved. The court then increased the starting point by two years and six months to account for other charges, including the possession of methamphetamine for supply. The court further added another year to reflect Harries' offending while subject to judicial orders and his extensive criminal history. The court then reduced the sentence by one year to account for Harries' health conditions, but did not give credit for remorse due to Harries' persistent offending. The court also gave a 20% credit for Harries' guilty pleas, resulting in an effective sentence of 14 years and nine months imprisonment. The court imposed a minimum non-parole period of nine years to ensure community protection, given Harries' history of reoffending.

Harries was sentenced to 14 years and nine months imprisonment for manufacturing methamphetamine, with a minimum non-parole period of nine years. He received concurrent sentences of nine years for possessing methamphetamine for supply and four years for possessing precursor substances. Finally, he received a three-year sentence for possessing equipment for manufacturing methamphetamine, to be served concurrently with the other sentences. The total effective sentence was 14 years and nine months imprisonment.

Orders