R v Harris - [2008] NZCA 214

IN THE COURT OF APPEAL OF NEW ZEALAND
CA719/07
[2008] NZCA 214
THE QUEEN
v
ALAN NOEL HARRIS
Hearing:1 July 2008

Court:Ellen France, Gendall and Venning JJ
Counsel:W M Johnson for Appellant

N P Chisnall for Crown

Judgment:8 July 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       A jury found Mr Harris, the appellant, guilty of attempting to use a firearm against a police officer acting in the execution of his duty. At the commencement of the trial the appellant had pleaded guilty to counts of unlawful possession of the firearm and its ammunition. Prior to trial he had also pleaded guilty to a count of driving whilst disqualified on a third or subsequent occasion and to dangerous driving, possession of methamphetamine and possession of both cannabis and cannabis oil. He had also pleaded guilty to a breach of community work.
[2]       Judge Dawson, the trial Judge, sentenced the appellant to five years nine months’ imprisonment: DC PMN CRI-2006-054-001606 14 December 2007. The appellant originally appealed against both conviction and sentence. At the outset of the hearing Mr Johnson confirmed the appellant no longer pursued the appeal against conviction and it is accordingly dismissed. The appeal was limited to the sentence.
Background
[3]       The offending arose from an incident that occurred just after midnight on Wednesday 12 April 2006. The appellant was in a car parked at the side of State Highway 56 in Longburn. A police patrol car drove past him and carried out a u-turn. The appellant drove off to avoid being spoken to. The appellant’s car reached a speed in excess of 140 kilometres an hour. It failed to take a right-hand turn. The car crossed both lines of the road before crashing through a stock fence and into a paddock. The appellant continued to drive around the paddock in an attempt to find an exit and avoid being caught by police. His car became stuck in a wire fence. He then ran from the car. He was caught by a police dog. When the dog handler arrived the appellant was fighting with the dog. The appellant was told what to do to disengage the dog. The appellant ignored the instructions and continued fighting with the dog. The police constable struck him on the arm several times with his torch to make him release his grip on the dog. By then two other constables arrived. With their assistance the appellant’s hold on the dog was released.
[4]       The appellant tried to access a small mesh bag he had around his neck under the outer layer of his clothing. He was told to remove his hand from the bag and to stop resisting arrest. A struggle then ensued between the appellant and the constables. During that struggle the appellant drew out a small six-shot .22 calibre pistol from the bag around his neck. Before he was able to present or fire it, it…

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 214
Case: [2008] NZCA 214
Decision Date: 8 July 2008

CaseChat Overview and Summary

In R v Harris, the appellant was found guilty of attempting to use a firearm against a police officer in the execution of their duty. The case involved multiple charges including unlawful possession of a firearm and ammunition, driving while disqualified, dangerous driving, and possession of various drugs. The trial judge sentenced the appellant to five years and nine months' imprisonment. The appellant appealed against both the conviction and the sentence, but later withdrew the appeal against the conviction. The appeal focused solely on the sentence.

The legal issues the court had to decide were whether the starting point for the firearms offence and the overall sentence were appropriate. The appellant argued that the starting point of four years was too high and that the cumulative sentence was excessive. The Crown contended that the sentence was well within the range available to the judge, considering the appellant's extensive criminal history and the nature of the offending.

The Court of Appeal found that the judge's decision to start with a four-year sentence for the firearms offence was appropriate, particularly given the appellant's immediate threat to the police. The court also found that the judge was justified in imposing cumulative sentences for the other offences, as they were different in kind. The Court of Appeal concluded that the final sentence of five years and nine months was well within the range available for the totality of the offending.

The appeals were dismissed, and the sentence was upheld.

Orders