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R v Harris

R v Harris

Case [2008] NZCA 528 3 December 2008

Injury with Intent to Injure

Aggravating Factors

Sentencing

Starting Point

Appeal Against Sentence

Criminal Law

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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].…

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 [2008] NZCA 528
Case: [2008] NZCA 528
Decision Date: 3 December 2008

CaseChat Overview and Summary

In the case of R v Harris, the appellant was found guilty of injuring with intent to injure his partner. The trial judge sentenced the appellant to three years' imprisonment, which included a starting point of two and a half years and an additional six months for aggravating factors specific to the appellant. The appellant appealed against his sentence, arguing that the starting point should have been no more than two years. The appellant's argument was based on the notion that the sentencing bands in R v Taueki should be adjusted to reflect the maximum penalty for the particular charge in this case, which was five years.

The Court of Appeal considered the appellant's submissions and examined the sentencing bands in Taueki, which were established in relation to grievous bodily harm offences with a maximum penalty of 14 years. The Court highlighted the risks of shrinking these bands to fit the specific case and the challenges that might arise from the wide range of offences that could be charged in moderately serious crimes of violence. The Court concluded that the guidelines in Taueki could be applied by analogy 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.

In determining the appropriate starting point, the Court found that the trial judge may have intended to identify band two as the appropriate band, given the moderate to serious nature of the injuries and the presence of aggravating factors such as gratuitous violence, the seriousness of the injuries, the attack on the complainant's head, the vulnerability of the victim, the length of the attack, and the abuse of trust. The Court found that a starting sentence of two and a half years for this offending was easily justified. Additionally, the Court noted that the appellant's previous convictions for violence, many of which involved violence towards women, warranted an uplift of six months' imprisonment. The Court concluded that the sentence of three years' imprisonment was within the available sentencing range.

The appeal was dismissed.

Orders