HARDING V R [2017] NZCA 538

HARDING V R [2017] NZCA 538 [21 November 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA152/2011[2017] NZCA 538BETWEEN BROWNIE JOSEPH HARDINGApplicantAND THE QUEENRespondentCourt: Harrison, Lang and Ellis JJCounsel: Applicant in personK S Grau for RespondentJudgment:(On the papers)21 November 2017 at 3.30 pmJUDGMENT OF THE COURTThe application for leave to withdraw the notice of abandonment is declined.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] In November 2010 Brownie Harding was sentenced to two and a half years'imprisonment for kidnapping and male assaults female following a jury trial.1 He filedan appeal against that sentence but, in August 2011, abandoned it. He now applies forleave to withdraw his notice of abandonment.1 Police v Harding DC Whangarei CRI-2009-088-3107, 9 November 2010.Background[2] The victim was the mother of Mr Harding's baby son. She was granted aprotection order against him in May 2009. She had agreed to meet him on 17 June2009 for him to see the baby. They had an argument. Mr Harding then prevented herfrom leaving her car by taking hold of the baby. She tried to grab the baby from himbut he pulled her back so she was lying with her head between the two front seats withhis forearm across her throat.[3] Mr Harding was tried on a charge of breaching the protection order, arisingfrom this incident, and sentenced by Judge John D McDonald to five months'imprisonment on 26 November 2009.2 He also received a two-month cumulativesentence for a further charge of breaching a protection order in relation to a differentvictim.[4] Then in November 2010, Mr Harding was tried before a jury guilty on furthercharges relating to the very same, 17 June 2009, incident. The jury found him guiltyof kidnapping (unlawful detention of the victim with consent obtained by duress) andone of male assaults female. He was acquitted on an alternative charge of kidnapping(unlawful detention without consent) and one of threatening to kill.[5] At sentencing, Judge Duncan Harvey adopted a two-year starting point for thelead charge of kidnapping, uplifted by six months for previous convictions.3He imposed concurrent sentences of nine months' imprisonment on the male assaultsfemale charge and three months' imprisonment on account of remission of fines.4[6] Mr Harding subsequently filed a notice of appeal against sentence dated16 March 2011. The appeal was given a fixture date of 6 September 2011.On 26 August 2011 his then-counsel, Mr Edgar, filed a notice of abandonment.2 Police v Harding DC Whangarei CRI-2009-088-4721, 26 November 2009.3 R v Harding DC Whangarei CRI-2009-088-3107, 9 November 2010 at [12].4 At [13]–[14].Approach on appeal[7] In R v Cramp this Court articulated two bases on which an abandoned appealmay be reopened:5(a) When the abandonment is a nullity rather than the result of a deliberateand informed decision.6(b) Under the Court's inherent power to revisit decisions in exceptionalcircumstances when the interests of justice require.7[8] In considering whether exceptional circumstances exist:8 the Court will have regard to the importance of finality in criminal cases,the circumstances in which the Notice of Abandonment was given, and thenecessity for an applicant for such an order to satisfy the Court that the reasonsfor the application are of an exceptional nature.The appeal[9] As we have said, Mr Harding is now self-represented. He filed submissionson his own behalf. He acknowledges that sentencing judges need to take into accountprevious convictions, but maintains that the six-month uplift in his case was a breachof s 26(2) of the New Zealand Bill of Rights Act 1990, which protects against doublejeopardy, because the previous convictions arose out of the same incident. He says hehad served his time for those and should not have been punished for them again. Hesays that the fact that the sentence has been served is irrelevant. He also says that MrEdgar advised him at the time that he could not get legal aid, so suggested he abandonthe matter until he could afford counsel.Decision[10] We agree with Ms Grau that Mr Harding's case falls well short of the highthreshold that must be met in such cases. Mr Harding was represented by counsel.5 R v Cramp [2009] NZCA 90 at [26].6 R v Medway [1976] QB 779 (CA).7 R v Smith [2003] 3 NZLR 617 (CA).8 R v Bridgeman CA87/04, 10 November 2005 at [9].Mr Harding signed the notice of abandonment, his signature was witnessed, and thenotice was filed by counsel. It is not possible to regard the abandonment as other thana deliberate and informed decision.[11] Nor do we consider that the interests of justice require reopening. Mr Hardinghas long since finished serving the relevant sentence. The grounds of appeal are farfrom strong. Had he been sentenced at the same time for all charges arising out of the17 June 2009 offending, the judge would have been entitled to uplift for totality.Moreover, Mr Harding's previous convictions were not limited to the breaches ofprotection orders for which he was sentenced in 2009. They included three forcommon assault (1996 and 2004), one for injuring with intent to injure (1997) and onefor assault with intent to rob (1994). Judge Harvey's notes make it quite clear that itwas these convictions he was taking into account when imposing the uplift.9[12] The District Court Judge was required by s 9(1)(j) of the Sentencing Act 2002to take previous convictions into account, having regard to their seriousness andrelevance. Previous convictions are regarded as relevant if they indicate a tendencyto commit the kind of offence for which an offender is being sentenced.10Mr Harding's convictions indicated a tendency to commit violent offending.The Judge's view that an uplift was required for the purposes of personal deterrenceand community protection could not be said to give rise to a miscarriage of justice.Result[13] The application for leave to withdraw the notice of abandonment is declined.Solicitors:Crown Law Office, Wellington for Respondent9 R v Harding, above n 4, at [12].10 Te Hau v R [2013] NZCA 431 at [18].