R v Harris

[2008] NZCA 528

IN THE COURT OF APPEAL OF NEW ZEALAND

CA497/2008
[2008] NZCA 528

THE QUEEN

v

MICHAEL HOERA HARRIS

Hearing:12 November 2008

Court:William Young  P, Ronald Young and Fogarty JJ

Counsel:A K G Morgan for Appellant

S B Edwards for Crown

Judgment:3 December 2008 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       On 27 September 2007 the appellant and the complainant (his partner) had been drinking at a hotel in Dannevirke.  As they left, the appellant pushed the complainant who fell and lost consciousness.  Later he continued the assault at his house.

[2]       He was found guilty by a jury of injuring with intent to injure and later sentenced by the trial Judge (Judge Dawson) to three years’ imprisonment.  The Judge arrived at this sentence by identifying a starting point of two and a half years to which he added six months for aggravating factors that were personal to the appellant.

[3]       The appellant now appeals against sentence.

Facts, submissions and discussion

[4]       When the appellant pushed the complainant as they were leaving the hotel she fell, hit her head on a concrete wall and lost consciousness.  She next recalled being dragged across the ground and then waking in the appellant’s house.

[5]       The appellant continued the assault at his house, punching and kicking her in the head.  She again lost consciousness.  When she awoke the appellant initially prevented her from leaving but eventually she escaped.  The complainant suffered a severe black eye, bruising over most of her body and grazing over her face, legs and body. 

[6]       The appellant’s only challenge is to the Judge’s two and a half year starting point for the offending.  The appellant submits that this offending, with proper adjustment to reflect the lesser charge, fell at the upper end of band one or the bottom end of band two, as identified in R v Taueki [2005] 3 NZLR 372 (CA). The appellant says a starting point, therefore, of no more than two years was appropriate. Counsel accepted the appellant’s serious previous convictions for violence towards women justified an uplift from the starting sentence.

[7]       The sentencing bands identified in Taueki were made by reference to the maximum available sentence of 14 years’ imprisonment for offending under s 188(1) of the Crimes Act 1961.  Account must be made of the fact that in this case the maximum penalty was five years’ imprisonment.  Counsel for the appellant submits that, after appropriate adjustment, the following sentencing bands result: band one:  one – two years; band two:  two years (or slightly less) – three and a half years; and  band three:  three – five years.

[8]       This Court has previously warned against shrinking the Taueki bands in a mathematical exercise to reflect relative maximum penalties for different charges: R v Lambert CA456/05 4 April 2006 at [22];  R v Morrison [2007] NZCA 78 at [23]; R v D (CA253/2008) [2008] NZCA 267 at [43]. There is also the problem that some of the aggravating features identified in Taueki are likely to be relevant only to grievous bodily harm offending.  As well, the wide range of offences which can be alleged in relation to moderately serious crimes of violence and the unexacting test for what constitutes an injury leaves a good deal of scope for prosecutorial discretion and the possibility of over-charging.  For these reasons, simply shrinking the bands and applying slavishly the aggravating and mitigating features identified in Taueki may create difficulties for sentencing judges.

[9]       It should also be kept in mind that in Taueki this Court saw the guidelines applying in this way:

[9]       We propose to deal with the guidelines for sentences for serious violent offending at the outset, before dealing with the present appeals.  We focus our attention on offences under s 188(1) of the Crimes Act (we will refer to these as “GHB offences” or “GHB offending”), but we anticipate that these guidelines will be able to be applied, by analogy, to s 191(1) and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.

[10]     An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting.  At least in general terms, the mens rea for this offence will coincide with the actus reus.  Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki.  On this basis, we envisage bands and starting point sentences (ie before allowance for personal aggravating and mitigating factors) as follows:

·     Band one:  where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];

·     Band two:  where the injuries are moderate, sentences of up to two years’ imprisonment can be justified;

·     Band three:  for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002).

[11]     Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved.  Such features are identified in Taueki and ss 8 and 9 of the Sentencing Act.

[12]     Judge Dawson, after identifying the aggravating features in this case, said:

[19]     Taking into account for those factors, it is my view that your offending falls within Band 1 of the Taueki decision and an appropriate starting point is a sentence of imprisonment of two and a half years.

[13]     The factors the Judge took into account were: the gratuitous violence; the seriousness of the injuries; the attack on the complainant’s head, which resulted in loss of consciousness on two occasions; the vulnerability of the victim, including the fact the initial attack was from behind and that the complainant was going in and out of consciousness; the length of the attack; and the abuse of trust.

[14]     Given those aggravating features and the starting point of two and a half years (which is outside of the adapted range for band one), we think the Judge may have intended to identify band two as the appropriate band.

[15]     This was a case of moderate to serious injury.  The assaults on the complainant caused loss of consciousness on two occasions.  The complainant suffered severe bruises around her face and eyes, bruising throughout her body, and grazing on her arms and legs. 

[16]     As to other features of the case, the complainant was attacked from behind and around the head.  She was vulnerable, given she was being attacked when intoxicated, initially from behind and when she was only partly conscious.

[17]     The seriousness of the injuries takes the offending into the 18 month to five year category.  The aggravating features which are intrinsic to the offending “contribute to the seriousness of the conduct and the criminality involved” (Taueki at [31]). On that basis, therefore, a starting sentence of two and a half years for this offending was easily justified.

[18]     Having determined an appropriate starting point, it is then necessary to look at matters relevant to the personal circumstances of the offender (Taueki at [44]). The appellant has eight previous convictions involving violence, many of which involve violence towards women. An uplift of six months’ imprisonment was open to the Judge.

[19]     We are satisfied the sentence of three years’ imprisonment was within the available sentencing range.

Disposition

[20]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington