R v Harris - [2017] NZHC 1519

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-029-961 [2017] NZHC 1519

THE QUEEN

v

MICHAEL HARRIS

Hearing: 30 June 2017

Appearances:

B M OʼConnor for Crown
D J Blaikie for Defendant

Sentence:

30 June 2017

SENTENCING NOTES OF FOGARTY J

Solicitors:
Marsden Woods Inskip Smith, Crown Solicitors, Whangarei
Copy to:
D J Blaikie, Kaikohe

R v HARRIS [2017] NZHC 1519 [30 June 2017]

[1] Mr Harris is a middle-aged man who owns, and operated, a backpackers’ hotel. He has been discovered to have been drugging in the evening young trusting men, usually by inserting the drug into a glass of an orange drink. Then when asleep, he has been photographing these young men, keeping the photographs stored electronically on a USB or otherwise. In some instances he got into bed with the sleeping young man and spooned, as it were. There is no evidence that he actually touched any of the victims genitals or otherwise penetrated their bodies.

[2] He has pleaded guilty to the following charges:

(a) Fifteen charges of indecent assault under s 135 of the Crimes Act

1961 for which there is a maximum penalty on each charge of seven

years’ imprisonment;

(b)Twelve charges of stupefication, an offence under s 197 of the Crimes Act 1961 for which the maximum penalty is five years’ imprisonment on each charge;

(c) attempted stupefiction, an offence under ss 72, 197 and 311 of the Crimes Act 1961, for which the maximum penalty is two and a half years’ imprisonment;

(d)seven charges of making an intimate visual recording, an offence under s 216H of the Crimes Act 1961, the maximum penalty for each charge being three years’ imprisonment; and

(e) seven charges of possession of an intimate visual recoding, an offence under s 216I of the Crimes Act 1961, for which the maximum penalty is three years’ imprisonment on each charge.

[3] In all that amounts to 42 criminal offences involving 19 victims, all male. Eighteen of these victims were guests at Mr Harris’ backpackers’ hostel. One of the victims was the child of family friends of Mr Harris and he is referred to as the first victim.

[4] There was a pattern in the offending. The offending followed Mr Harris obtaining the confidence of a young man and in the case of the first victim, took advantage of the social relationship he had with the boy’s parents.

[5] Not all of the guests of the backpackers’ hostel slept in the hostel itself. Some of the victims were invited in to sleep in the house, a more privileged lifestyle and to some extent achieved some financial benefits.

[6] The defendant’s modus operandi was to stupefy the victims by giving them temazepam, a drug which the defendant had been previously prescribed. The drug was given to the victims without their knowledge, either in drinks of orange juice, alcohol or…

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 Harris

Details

AGLC: R v Harris [2017] NZHC 1519
Case: [2017] NZHC 1519
Decision Date: 30 June 2017

CaseChat Overview and Summary

Michael Harris, a middle-aged man who owned and operated a backpackers’ hotel, was found guilty of drugging, photographing, and assaulting young male guests, as well as attempting to drug and photograph another individual. The court had to determine an appropriate sentence for Harris's multiple offenses, which included stupefication, indecent assault, and making and possessing intimate visual recordings. Harris's defense counsel argued that the motivation behind the offenses was not sexual gratification, and the offenses should be classified as low-level indecent assaults. However, the court disagreed and emphasized the violation of privacy and the serious culpability of Harris's actions.

The court considered the unique nature of the case and the lack of guidelines for sentencing in such cases. It found that the sheer volume of offenses, along with the stupefication of victims and the invasion of their privacy, warranted a significant sentence. The court agreed with the Crown's assessment that a sentence in the range of nine to twelve years would be appropriate. However, it allowed for a discount of 10% for an early plea and a further discount for remorse. Ultimately, the court sentenced Harris to eight years' imprisonment, to be allocated across the charges.

In addition to the sentence, the court reserved leave for Harris to apply for a variation of the sentence depending on the outcome of the forfeiture proceedings in respect of the backpackers’ hostel and the ability to make reparation to the victims. The court also invited counsel to agree on an allocation of the sentence across the charges and would convene another sentencing hearing if needed.

Orders