R v Harvey - [2017] NZHC 3069

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-463-121 [2017] NZHC 3069

THE QUEEN

v

ARCH ARTHUR BO HARVEY

Hearing: 11 December 2017

Counsel:

A Gordon for the Crown
M J Hine for the Defendant

Judgment:

11 December 2017

SENTENCING NOTES OF GORDON J

Solicitors: Crown Solicitor, Rotorua
M J Hine, Tauranga

R v HARVEY [2017] NZHC 3069 [11 December 2017]

Background

[1] Mr Harvey, you appear for sentence having pleaded guilty to a charge of wounding with intent to cause grievous bodily harm.1 The maximum penalty for that offence is 14 years’ imprisonment.

Facts

[2] On the evening of 20 July 2017, you and some of your family members were celebrating a birthday at your home here in Rotorua. You told the probation officer who wrote the pre-sentence report that you consumed a considerable amount of alcohol throughout the course of the evening.

[3] Shortly before midnight, you called 111 and asked for the police. You told the operator your home address but did not explain what was happening or why you needed help. As is standard practice, the police dispatched a patrol car to investigate.

[4] Constables Ardon Hayward and Olivia Broughton arrived at your home a short time later. They saw a man and a woman having a dispute outside on the driveway area. Constable Hayward arrested the man and took him off your property towards the patrol car. Constable Broughton stayed on the driveway and spoke to the woman.

[5] When you became aware the police were at your house, you picked up a tomahawk and went outside to the roadside edge of the property. You climbed over the front boundary fence, and ran up behind Constable Hayward. He was kneeling on the ground and he was busy dealing with the man he had just arrested. He had his back to you. He was completely unaware of your presence and so was unable to defend himself or evade your attack.

[6] You swung the tomahawk and struck Constable Hayward once to the back of his head. He was immediately knocked unconscious and fell to the ground. It was a vicious attack.

[7] You then ran across the road towards a shopping centre, stopping along the way to hide the tomahawk in some shrubs. You took off your pants and top and hid them as well. You then climbed onto the roof of a nearby kindergarten and watched other police arrive, tend to Constable Hayward, and then search for you. You hid on the roof for several hours until all the officers had left.

[8] The police did not find you that night. Rather, you were arrested the following evening at your home address. When spoken to by the police, you admitted what you had done although you could not say why you did it. You said you did not realise Constable Hayward was a police officer until after you had struck him.

Victim impact

[9] Constable…

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 Harvey

Details

AGLC: R v Harvey [2017] NZHC 3069
Case: [2017] NZHC 3069
Decision Date: 11 December 2017

CaseChat Overview and Summary

The defendant, Arch Arthur Bo Harvey, appeared in the High Court of New Zealand at Rotorua for sentencing after pleading guilty to wounding with intent to cause grievous bodily harm. The maximum penalty for this offence is 14 years imprisonment. On 20 July 2017, Harvey consumed a considerable amount of alcohol during a birthday celebration at his home in Rotorua. He called the police for an unspecified reason and when officers arrived, Harvey attacked one of the officers, Constable Hayward, on the back of the head with a tomahawk, knocking him unconscious. Harvey fled the scene but was arrested the following day. Constable Hayward suffered a large laceration, a depressed skull fracture and bruising to his brain, and continues to experience the effects of the attack.

The court had to decide the appropriate sentence for Harvey's actions, taking into account the seriousness of the attack, the vulnerability of the victim, and Harvey's history of alcohol abuse and offending. The court considered five aggravating factors: the use of a lethal weapon, the attack to the head, the serious and unprovoked violence, the ongoing impact on the victim, and the attack against a police officer in the course of their duty. The court found no mitigating factors relevant to the offending. The court determined that the offending fell within band three of the Court of Appeal's guideline judgment, and set a starting point of ten years imprisonment. The court gave Harvey a discount for his genuine remorse and guilty plea, and set an adjusted end sentence of seven years and one month imprisonment. The court also set a 50 per cent minimum period of imprisonment to adequately denounce the offending, deter future offending, and protect the community.

In conclusion, the court sentenced Harvey to seven years and one month imprisonment for wounding with intent to cause grievous bodily harm, with a non-parole period of half the sentence. The court also cancelled Harvey's existing sentence of community work.

Orders