HARRAWAY v POLICE [2018] NZHC 761

HARRAWAY v POLICE [2018] NZHC 761 [20 April 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-412-000002[2018] NZHC 761BETWEEN DANIEL ROBIN HARRAWAYAppellantAND NEW ZEALAND POLICERespondentHearing: 9 April 2018Appearances: A Dawson for the AppellantR D Smith for the RespondentJudgment: 20 April 2018JUDGMENT OF NATION JIntroduction[1] The appellant (Mr Harraway) appealed against a sentence of 2 years'imprisonment imposed by Judge Turner 20 on 21 December 2017.1 The sentence wasimposed in respect of nine charges:(a) Burglary;(b) Unlawful possession of a firearm;(c) Unlawfully taking a motor vehicle (x 4);(d) Theft (x 2); and1 New Zealand Police v Harraway [2017] NZDC 29349 [sentencing decision](e) Driving whilst disqualified (third offence).[2] Mr Harraway argued that the sentence was manifestly excessive. Specifically,his counsel submitted that the trial Judge adopted a sentence for the burglary andfirearm offences that was too high in the circumstances. The other starting points werenot challenged, nor was the Judge's deduction for totality, remorse and guilty pleas.Summary of facts[3] This indicated Mr Harraway was being sentenced for the following events,occurring over 11 days:(a) 18 August 2017 - the appellant entered a parked bus in Dunedin and tookapproximately $230 in cash from the cash box;(b) 19 August 2017 - the appellant took a vehicle which the driver hadtemporarily left the keys in to enter a shop. He drove the vehicle aroundDunedin and between Waimate and Dunedin from 19 August 2017 untildumping it in Dunedin on 23 August 2017;(c) 20 August 2017 - the appellant filled the vehicle with $78.70 worth ofdiesel and left the petrol station without paying;(d) 24 August 2017 - the appellant took another vehicle in Dunedin while theowner was in a nearby shop, before abandoning it a short while later inWaimate;(e) 25 August 2017 - the appellant took another vehicle, dumping it in Morven(a small settlement on state highway 1, not far from Waimate) when it ranout of fuel. He then went to a nearby address belonging to an ex-employerand currently used by farm employees. He took another vehicle and thendrove to a farm where he had formerly been employed. He stole from anout-building there a rifle and ammunition and then returned in the vehicleto Dunedin; and(f) 29 August - the Police arrested the appellant. When they searched thevehicle, they found the rifle down the side of the passenger seat withineasy reach of the driver. Ten rounds of ammunition were in the magazine.Reports[4] As requested by the Court, a psychiatrist, Dr Crouch, provided a report,pursuant to s 38 Criminal Procedure (Mentally Impaired Persons) Act 2003, dated 24October 2017. The psychiatrist reported that Mr Harraway had told her he always feltsuicidal and was constantly planning how to end his life. It referred to earlier periods,beginning in 2000, when he had been admitted to hospital with suicidal ideation. MrHarraway was admitted as a voluntary patient to Wakari Hospital on 27 July 2017. On17 August 2017, while on authorised leave, he spoke to a psychiatrist and said heplanned to stay at a backpackers. He gave assurances as to his safety and was to followup with Emergency Psychiatric Services the next day. He did not do so. On 21 August2017, Mr Harraway contacted Emergency Psychiatric Services saying he was goingto end his own life.[5] Dr Crouch said that, overall, Mr Harraway was "a somewhat difficulthistorian" but that he presented with chronic symptoms of low mood and suicidalideation, and had a history of past attempts on his own life and threats of self-harm.He had failed to engage in psychiatric care in both community and hospital settings.She said he suffered from chronic symptoms of low mood and suicidal ideation, andwas experiencing those symptoms at the time of the offending.[6] The Department of Corrections' pre-sentence report, dated 16 November 2017,reported that, in relation to the summary of facts, Mr Harraway said he was in a "badspace, couldn't remember all of the offending but admitted he was culpable" andreferred to his having been released from Wakari Hospital at the time of the offending,having been there for a number of weeks suffering from depression due to hisrelationship break down, separation from his children and financial difficulties due tounemployment. The report made no mention of his speaking to the probation officerof any intention to commit suicide at the time of the offending. It appears from thereport that the probation officer had not seen or known of the psychiatric report whichhad been provided to the Court. Mr Harraway was assessed as being at moderatelikelihood of general offending but high likelihood of vehicular offending. His risk ofharm to others was described as moderate.The District Court Judge's sentencing[7] The Judge came to a starting point of 50 months based on the following:• Unlawfully taking a motor vehicle (x4)2 – starting point 15 months;• Burglary3 – starting point 30 months (uplift);• Unlawful possession of a firearm4 – dealt with globally alongside theburglary charge;• Theft (x2)5 – starting point two months (uplift); and• Driving whilst disqualified6 – starting point three months (uplift).[8] From the 50 months' imprisonment, the Judge reduced the amount by 10months with regard to the totality principle. A further reduction of 40 per cent wasgiven for Mr Harraway's mental health condition, remorse and an early guilty plea.[9] The sentence was implemented through concurrent sentences as follows:• Burglary – 24 months' imprisonment;• Unlawful possession of a firearm – 12 months' imprisonment;• Unlawful taking of a motor vehicle (x4) – 15 months' imprisonment;• Theft (x2) – two months' imprisonment; and2 Crimes Act 1961, s 226(1). A maximum sentence of 7 years' imprisonment.3 Crimes Act 1961, s 231(1)(a). A maximum sentence of 10 years' imprisonment4 Arms Act 1983, s 51. A maximum sentence of 3 years' imprisonment.5 Crimes Act 1961, ss 219 and s223(d). A maximum sentence of 3 months' imprisonment.6 Land Transport Act 1998, ss 32(1)(a) and 32(4). A maximum sentence of two years' imprisonment.• Driving while disqualified – three months' imprisonment and disqualifiedfor one year and one day.[10] In arriving at a starting point of 15 months' imprisonment for the unlawfultaking charges, the Judge referred to a number of High Court decisions.7 In arrivingat a starting point for the burglary and firearms offending, he referred to the view thatburglaries of residential properties, when a moderate amount of property was taken,attracted starting points of between 18 months and two years. He accepted thesubmission for Mr Harraway that the prospects of his encountering the owner of theproperty were reduced because the building entered was an out-building. The Judgereferred to the Court of Appeal's judgment in Pue v R as indicating a starting point of18 months was available when loaded firearms were found within easy reach of adefendant in a vehicle.8Principles on appeal[11] An appellant is able to appeal the sentence imposed as of right.9 The HighCourt, as the first appeal Court, will only disturb the sentence appealed from if theappellant can establish that there was an error in the sentence and that a differentsentence should be imposed.10[12] If the sentence under appeal can be properly justified, having regard to therelevant sentencing principles, this Court may not merely substitute its own views forthose of the sentencing Judge. The exercise of the sentencing Judge's discretion canonly be interfered with if the sentence imposed was manifestly excessive. Toogood Jcaptured the essence of the test in Larkin v Ministry of Social Development saying:11The High Court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles. Whether asentence is manifestly excessive is to be examined in terms of the sentencegiven, rather than the process by which the sentence is reached.7 O'Sullivan v Police [2015] NZHC 2032; Riini v Police [2016] NZHC 2218; O'Rourke v Police[2016] NZHC 273; Fox v Police [2017] NZHC 573.8 Pue v R [2014] NZCA 273.9 Criminal Procedure Act 2011, s 244.10 Criminal Procedure Act 2011, ss 247 and 250.11 Larkin v Ministry of Social Development [2015] NZHC 680 at [26], citing Ripia v R [2011] NZCA101 at [15].[13] Similarly, in Tutakangahau v R, the Court of Appeal held that:12the focus is on the sentence imposed rather than the process by which thesentence is reached. That encapsulation of the position will no doubt representthe position in the vast majority of cases.[14] In addition to the identification of error, the appellant must persuade the appealcourt that the ultimate sentence imposed was outside the range available to thesentencing Judge.Submissions for the appellant[15] Mr Dawson, for Mr Harraway, submitted that, because the starting pointadopted for the burglary and firearms charges was too high, the ultimate sentence wasmanifestly excessive. Mr Dawson said it was appropriate for the Judge to deal withboth charges as one in arriving at the sentence but submitted, on that basis, the 30months starting point was too high.[16] Mr Dawson referred to factors listed by the Court of Appeal in R v Nguyen andthe Judge's statement that a burglary of a residential property, where a modest amountof property was taken, usually attracts starting points of between 18 months and twoyears.13[17] Mr Dawson submitted that the starting point for this burglary should have beenat the lower end of the spectrum. This was because all that was taken was the firearm;no damage was caused; the burglary was of an out-building (thus reducing the risk ofa confrontation with the owner) and the burglary has not had a significant impact onthe owner.[18] Mr Dawson referred the Court to Yukich v R.14 There, the Court of Appeal dealtwith an appellant who had burgled a farmhouse, stealing eight shotguns, three pistols,ammunition, alcohol, meat and groceries. The trial Judge took a starting point in thatcase of 20 months which was approved on appeal.12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].13 R v Nguyen CA 110/01, 2 July 2001.14 Yukich v R [2010] NZCA 499.[19] Mr Dawson said that, with due regard to R v Nguyen and the decisions of Yukichv R and R v Inia, an appropriate starting point for this offending for the burglary wouldhave been in the region of 10 to 12 months' imprisonment.15[20] Mr Dawson suggested the Judge's reference to the Court of Appeal judgmentin Pue v R, as indicating that a starting point up to 18 months' imprisonment wasavailable where loaded firearms were found within easy reach of a defendant in avehicle, was not appropriate as the focus of the Court of Appeal judgment had beenon whether or not a sentence of home detention should have been imposed in that caserather than the 18 months imprisonment.16 He also submitted there were significantdifferences with the case in that, in Pue, the possession of the firearm was associatedwith methamphetamine dealing and others were associated with the same offence.[21] Mr Dawson submitted that Mr Harraway did not intend to use the firearm forany nefarious purpose and there was nothing to indicate he would harm a member ofthe public. He submitted that six months would have been an appropriate startingpoint for the firearms charge so that, taken together, an uplift of only between 16 and18 months for the firearms and burglary charges would have been appropriate.[22] Mr Dawson thus submitted that an appropriate starting point should have beenbetween 36 and 38 months rather than the 50 months adopted by the Judge for alloffending. Accepting the appropriateness of other uplifts and discounts, he submittedthis should have resulted in a sentence of between 14 and 16 months, with a result thatthe 24 months sentence was manifestly excessive.Respondent's Submissions[23] For the respondent, Mr Smith submitted the possession of the firearm andammunition was not as benign as has been submitted for the appellant. He submittedthat the Court of Appeal's judgment in Yukich was more about whether the appellantshould have been treated consistently with his co-defendants for whom a 20 monthstarting point had been appropriate. He suggested that R v Inia should not be taken as15 R v Nguyen, above n 13; Yukich v R, above n 14; R v Inia [2010] NZCA 499.16 Pue v R, above n 8.some sort of guideline judgment. Mr Smith referred to the judgments of the HighCourt in Shierney v Police and Powell-Collins v Police, as indicating that a startingpoint of 24 months' imprisonment for the burglary was within range, particularly sobecause it was committed with intent to acquire a firearm.17 He emphasised that theunlawful possession of a firearm and ammunition had to be treated as separate fromthe burglary because Mr Harraway was found to be in possession of the loaded firearmsome four days after the burglary.[24] Mr Smith thus argued that, taken together, an uplift of 30 months for bothoffences had been appropriate. He also emphasised that, on an appeal, a Court's focusmust be on the end sentence. He submitted the Judge's reduction for totality of 20 percent was generous, as was the 40 per cent reduction for mental health, remorse and aguilty plea.Discussion[25] In Arahanga v R, the Court of Appeal indicated a broad sentencing range forburglaries of dwelling houses:18This Court has deliberately not set a tariff for burglary because the range ofcircumstances in which the offence can be committed is so varied. Burglaryof a domestic residence is a significant aggravating feature at sentencing dueto the heightened risk of confrontation with the occupants. Dwelling houseburglaries at the relatively minor end of the scale tend to attract a starting pointof 18 months to two years and six months' imprisonment.[26] I consider a starting point of 24 months for just the burglary would have beenwithin range. As Mr Dawson responsibly acknowledged, the burglary was pre-meditated. On 24 August 2017, Mr Harraway had driven in a stolen car from Dunedinto Waimate. There, he was involved in taking two further vehicles, the second ofwhich he took from an address of an ex-employer before driving to another addresswhere he took a .22 rifle and ammunition that he knew would be hidden in a farm out-building. From there, he drove back to Dunedin. As Mr Dawson again acknowledged,the burglary did involve a breach of trust in that Mr Harraway was taking advantageof the knowledge he had from his previous employment.17 Shierney v Police [2014] NZHC 2963; Powell-Collins v Police [2017] NZHC 1644.18 Arahanga v R [2012] NZCA 480 at 78].[27] The Court of Appeal have said that burglary of a residence is a significantaggravating feature because of the heightened risk of confrontation with the occupantsbut I do not consider that, for that reason alone, the burglary of a farm out-buildingshould be treated as significantly less serious. From the summary of facts, it wouldappear Mr Harraway entered the out-building during the day, so there must have beensome risk that someone from that farm could have been in the vicinity. Farmers andthe owners of other rural buildings are, in a sense, also especially vulnerable as far asburglaries are concerned. They do not normally have such buildings under constantsurveillance and must rely on the general honesty of all members of the public and therespect which is normally afforded to their property. In that sense, any burglary of afarm out-building means the offender is taking advantage of a property owner who isparticularly vulnerable to burglary and who has to trust everyone in the community torespect their property.[28] In Shierney v Police, Mr Shierney and an associate entered a residentialproperty in Auckland.19 The occupants were overseas. They stole numerous items,including jewellery and electronic products. On the same night, but the followingmorning, they returned to the residence. They forced open a metal locker and removedhigh-powered rifles and ammunition. They realised they were being observed by aneighbour, hurriedly decamped and ultimately dumped the rifles and ammunition in arecycling bin. The sentencing Judge in the District Court treated the theft of thefirearms as being opportunistic but noted a number of other aggravating featuresassociated with the burglary, all features that do not apply here. On that basis, headopted a starting point for the burglary of three and a half years' imprisonment andsaid that, if the property had been targeted to steal firearms, the starting point wouldhave been five years' imprisonment. In dismissing the appeal against sentence,Woolford J in the High Court said the appellant and his co-offender did take firearmsfrom the property with the intention of dealing with them and the sentencing Judgewas accordingly able to elevate burglary from the normal starting point of 18 monthsto two and a half years' imprisonment, set in Arahanga v R.2019 Shierney v Police, above n 17.20 Arahanga v R, above n 18.[29] In the burglary here, the appellant may not have intended to deal with thefirearms, as was the case in Shierney, but the property was targeted to obtain a firearm.[30] The Judge was also entitled to increase that starting point for the offence ofbeing in possession of the firearm and ammunition. It is significant that Mr Harrawaywas found to be in possession of that firearm four days after the firearm had beentaken. He was found to be in possession of it in Dunedin early in the afternoon. Itwas in the car he had unlawfully taken and was using. It was down the side of thepassenger seat, within his reach. Significantly, it was in a loaded state with 10 rounds.The summary of facts referred to his having taken a Rugar .22 rifle and ammunitionthat he had known was hidden in the farm out-building. It thus appears from thesummary facts that he had not only kept the firearm for a number of days but that hehad loaded the rifle, significantly with more ammunition than would have beennecessary had his only intention been to use it to commit suicide.[31] In Pue, the Court of Appeal's judgment was consistent with their agreeing witha starting point sentence of 18 months for the possession of a firearm in the particularcircumstances of that case. The sentencing Judge had then allowed a 10 per centdiscount for lack of previous convictions, to arrive at an end sentence of one year andfour months. The Court of Appeal substituted a sentence of eight months' homedetention, but this was consistent with the starting point adopted by the sentencingJudge. The circumstances of that offence were more serious than with Mr Harrawaybut, here, that was reflected in the sentencing Judge's uplift of 30 months for both theburglary and firearms offences.[32] Mr Harraway's possession of a loaded firearm was the more serious becauseof all the circumstances he was in at the time. He had been involved in a spate ofunlawful takings of motor vehicles. On 23 August 2017 at approximately 2.00 am, hehad been in the student area of Dunedin city and was recorded on a CCTV cameragoing in and out of properties in that area. On 25 August 2017, at Morven nearWaimate, he had entered an address belonging to an ex-employer and then used byfarm employees. It was from there that he unlawfully took the vehicle he used whencommitting the burglary from a nearby farm building.[33] With the mental state he was in after he had obtained the firearm and with hisother unlawful actions around that time, there was a real risk that he could have endedup using the firearm in a way that would have been dangerous for others. He told thepsychiatrist he had known what he was doing but, in the state he was in, did not careabout the consequences. With his psychiatric history, he should never have been inpossession of any firearm, let alone one loaded with 10 rounds of ammunition.[34] An uplift of six months for the firearms offence on a sentence of 24 months forthe burglary would have been within range. Accordingly, I do not consider the 30months starting point, adopted by the Judge for both offences, was excessive.[35] I also agree with Mr Smith's submission that the discount of 10 months on 50months for totality was generous.[36] Mr Harraway was facing only one charge of driving while disqualified. On thesummary of facts, this driving while disqualified had occurred on at least five separatedays, it involved his driving significant distances, both around Dunedin and alsobetween Dunedin and Glenavy and Waimate, despite the fact Mr Harraway was adisqualified driver. He could have been charged with five separate offences in thisregard. His previous convictions for driving while disqualified included convictionsfor two offences of driving contrary to a limited licence on 14 June 2016 and 16November 2016.[37] He had unlawfully taken four different motor vehicles over different days. Hehad used the first vehicle taken on 19 August 2017 over the next few days to driveback and forth between Dunedin and Waimate. He had also driven the separatevehicles unlawfully taken on 24 August 2017 to drive between Waimate and Dunedin.The starting point uplift of 15 months for the unlawful takings of a vehicle could havebeen higher.[38] The appellant was being sentenced for distinct and separate sorts of offending,on separate and distinct occasions. The observation of Gendall J in the Court ofAppeal in R v Hoy is pertinent.21 There, he said:21 R v Hoy CA63/02, 23 July 2002.It needs to be remembered that the application of the totality principle doesnot equate to giving a "discount for bulk offending". Depending on the natureand extent of offending a proper sentencing approach to the overallseriousness of the particular crimes might, and often does, require a sternersentence.[39] There was nothing in either the detailed psychiatric report which was beforethe Court or in the pre-sentence probation report to indicate that Mr Harraway had anyparticular remorse for what he had done or any particular empathy for those who werethe victims of his offending. The probation officer reported only that he believed theoffending was out of character for him and he was surprised and embarrassed at whathe had done. The probation officer said there had been no offer of reparation duringthe course of her discussion with the appellant.[40] It seems the appellant's judgment was partially impaired through his low moodbut the psychiatric report indicates that he knew what he was doing was wrong but didnot care about the consequences. The Judge's discount of 40 per cent for the earlyguilty pleas, remorse and his mental health condition thus could have been less.Conclusion[41] For all these reasons, I have not been persuaded there was any error in the waythe Judge sentenced the appellant or that a different sentence should have beenimposed.[42] The appeal is dismissed.Solicitors:Public Defence Service, DunedinRPB Law, Dunedin.