R v Harriman - [2009] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND
CA19/2009
[2009] NZCA 156
THE QUEEN
v
WAYNE GRAHAM HARRIMAN
Hearing:22 April 2009

Court:Robertson, Heath and Fogarty JJ
Counsel:K E Becker for Appellant

T Epati for Crown

Judgment:29 April 2009 at 3.30 pm

JUDGMENT OF THE COURT

A THE APPEAL AGAINST SENTENCE IS ALLOWED.
BSentencing is remitted to the District Court on the basis outlined in [29].

____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
[1]       Mr Harriman appeals against a sentence of two years and seven months’ imprisonment imposed by Judge Ongley, in the District Court at Palmerston North, on 12 December 2008. Mr Harriman had pleaded guilty to assaulting Mr Eric Brown, using a motor vehicle as a weapon, and driving a motor vehicle recklessly, thereby injuring Hinganui Brown, the 15 year old son of the assault victim. Mr Brown is Mr Harriman’s brother-in-law and Hinganui is his nephew. Initially, in respect of the incident involving Hinganui, a more serious charge was laid but the prosecution did not proceed with it.
[2]       The appeal turns on a short point. The question is whether Judge Ongley erred in sentencing Mr Harriman without the benefit of a pre-sentence report. Mr Becker contends that the sentencing ought not to have proceeded until a report was available, whereas Ms Epati submits that, in the circumstances confronting the Judge, it was not essential for him to obtain a report.
The facts in outline
[3]       At about 9am on 4 September 2007, Mr Harriman’s son drove to Mr Brown’s home, in Levin, to see Mr Brown’s son, Hinganui. Mr Brown came out of the house and verbally abused Hinganui, before punching him in the head with a closed fist. Hinganui ran home, being chased for some distance by Mr Brown.
[4]       Mr Harriman was in bed when he heard his son yelling and crying outside. As he got up, he heard his son tell his mother that Mr Brown had assaulted him and taken his car. Mr Harriman became angry.
[5]       Mr Harriman drove towards Mr Brown’s home. Both Mr Brown and his son were standing on a grass verge. Mr Brown yelled at Mr Harriman, using abusive language. Mr Harriman became angrier. He drove forward, did a u-turn, mounted the kerb, accelerated and deliberately drove towards Mr Brown. An eye witness estimated the speed at about 50km/h. Mr Brown was hit by the vehicle and Hinganui clipped, as the vehicle passed him by.
[6]       Both Mr Brown and Hinganui were thrown up onto the bonnet of the car from which they fell to the ground. Both were injured. Mr Harriman drove back onto the road and headed north. He was stopped by Police. Mr Harriman was visibly upset and shaken. He admitted hitting Mr Brown with his car. He said he did not stop after the accident because he was going directly to the police station to report the incident.
Sentencing in the District Court
[7]       On 18 September 2008, Mr Harriman entered pleas…

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 Harriman

Details

AGLC: R v Harriman [2009] NZCA 156
Case: [2009] NZCA 156
Decision Date: 29 April 2009

CaseChat Overview and Summary

In the appeal of R v Harriman, the Court of Appeal of New Zealand considered the issue of whether the sentencing of Wayne Graham Harriman was properly conducted without the benefit of a pre-sentence report. The case arose from an incident where Harriman used his car as a weapon against his brother-in-law, Eric Brown, and injured Hinganui Brown, his nephew, by reckless driving. Harriman pleaded guilty to the charges. The appeal was focused on whether the sentencing judge, Judge Ongley, was correct in imposing a sentence of two years and seven months' imprisonment without a pre-sentence report.

The Court of Appeal examined the legal principle that a custodial sentence should generally only be imposed in exceptional circumstances without a pre-sentence report, as established in previous cases. The Sentencing Act 2002 provides for the preparation of pre-sentence reports, which include information about the offender's background and recommendations for sentencing. The Court determined that the absence of a pre-sentence report in this case constituted an error, as it could have provided further insight into Harriman's circumstances and potentially influenced the sentence. The Court held that the sentencing judge should have remanded Harriman in custody to ensure a pre-sentence report was obtained.

Accordingly, the Court of Appeal allowed the appeal against sentence and remitted the sentencing to the District Court with a direction to obtain a pre-sentence report and home detention appendix before re-sentencing Harriman. This decision ensures that Harriman's sentence is based on a comprehensive understanding of his personal circumstances, thereby adhering to the legal principle that a custodial sentence should not be imposed without the benefit of a pre-sentence report.

Orders