KAMERA JACOB TAMATI HARRIS v R [2023] NZCA 462

KAMERA JACOB TAMATI HARRIS v R [2023] NZCA 462 [21 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA305/2023[2023] NZCA 462BETWEEN KAMERA JACOB TAMATI HARRISAppellantAND THE KINGRespondentHearing: 30 August 2023Court: Miller, Ellis and van Bohemen JJCounsel: C S Cull KC for AppellantFRJ Sinclair for RespondentJudgment: 21 September 2023 at 12.30 pmJUDGMENT OF THE COURTA The appeal against sentence is dismissed.B The appeal against refusal of name suppression is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Kamera Harris appeals his sentence of five years and 10 months' imprisonmentfor the manslaughter of Michael Biggins,1 and the refusal of permanent namesuppression.21 Crimes Act, ss 171, 160(2)(a) and 177.2 R v Harris [2023] NZHC 1210 [sentencing notes] at [67] and [64].The facts[2] The facts as found by Campbell J at sentencing were not in dispute before us.We adopt his account, which is drawn from the agreed summary of facts:3Background[9] On 26 September 2021, a friend of yours introduced you toMr Biggins' wife. Your friend and Mrs Biggins had met some weeks before,when she offered him a ride to Kerikeri; she said she would drive him anytimehe was going to Kerikeri. She quite clearly shared the same generosity ofspirit as her husband. On the 26th of September, Mrs Biggins agreed to driveyou and your friend to Kerikeri and took you to several locations before takingyou back to [Ōkaihau].[10] On 27 September 2021, you and another friend – your co-defendant –decided you wanted to steal a car and then go to see some friends in [Kaitaia].The two of you planned to ask Mrs Biggins for a ride, push her out of the carand take it. You were 15 at the time. Your friend was 12.[11] You selected a black-handled knife from the kitchen where you were,and said you were going to use the knife for the carjacking. Mr Mansfield KCtells me that you always carried a knife because you thought it made you seemmore intimidating. He accepts that that does not diminish your responsibilityfor what happened.[12] After selecting the knife, you and your friend then waited until it gotdark. You went to Mrs Biggins' home at about 7.45 pm and asked Mrs Bigginsif she would drive you to your aunt's house on Lake Road. Mrs Bigginsdeclined as she had drunk a glass of wine. Mrs Biggins asked her husband,Mr Biggins, to give the two of you a ride. He agreed to do so. Shortly after,you and your friend left the house with Mr Biggins.The incident[13] At about 8.20 pm, residents on Imms Road heard a loud bang.Mr Biggins' car had collided with a tree on the side of the road, 200 metresfrom the intersection with Lake Road.[14] Mr Biggins was found unresponsive inside the car, with his footlodged on the accelerator. The front passenger door was open, and the enginewas smoking.[15] Mr Biggins was pulled from the car. The car caught fire.[16] Mr Biggins sustained two stab wounds: a fatal 12cm wound in his leftchest that had punctured his left lung and heart and fractured a rib, and a 3.8cmdeep wound on his right forearm. Mr Biggins died at the scene.[17] A black-handled knife with a blade 12.5cm in length was found nearthe vehicle. Your DNA was found on the handle of the knife.3 Sentencing notes, above n 2.[18] At around 3.00 am to 4.00 am you and your friend arrived back atyour other friend's house where you informed him and another friend that youhad stabbed Mr Biggins.[3] We observe that in reaching these findings the Judge did not accept Mr Harris'claim, advanced through counsel, that the offending happened after Mr Biggins triedto disarm Mr Harris and a fight ensued.4 The Judge was not asked to accept theaccount offered to the author of the pre-sentence report, to whom Mr Harris explainedthat instead of getting out of the car when asked to do so, Mr Biggins punched him inthe face, seized the knife and stabbed him. Sentencing proceeded on the basis thatMr Harris did not intend to kill but assumed Mr Biggins would comply whenthreatened.[4] Mr Harris was 15 years of age at the time of the offending. His friend was 12.[5] The offending was characterised by several serious aggravating features: itinvolved the use of a weapon, it occurred in an attempt to steal Mr Biggins' car and itwas premeditated.5The sentencing analysis[6] Campbell J noted the facts and the aggravating factors we have mentioned.He adopted a starting point of nine years' imprisonment, by reference to comparablecases.6[7] The Judge allowed a discount of 15 per cent for youth and capacity forrehabilitation.7 He noted that there was no suggestion that the offending was the resultof susceptibility to negative influences or outside pressures.8 He accepted thatMr Harris did not think it through, expecting that Mr Biggins would simply hand overthe keys, but he did not accept that Mr Harris' actions were impulsive.94 At [19].5 At [25]–[27].6 At [29]–[30]. The Judge noted that R v SM [2018] NZHC 3345; and R v Edwardson HC RotoruaCRI-2006-069-1101, 27 April 2007 were of particular assistance.7 Sentencing notes, above n 2, at [37].8 At [36].9 At [27]–[28].[8] A s 27 report was tendered. The Judge found that it did not identify a causalconnection between systemic Māori deprivation and the offending; Mr Harris has astrong affiliation with his Ngāpuhi whānau, who live by te ao Māori values andprovide him with strong support.10[9] Nor did the Judge identify any connection between learning difficulties and theoffending.11 The author of the s 27 report referred to a list of disorders which sheconsidered were linked to Mr Harris' offending — Attention Deficit HyperactivityDisorder (ADHD), Oppositional Defiant Disorder (ODD), Auditory ProcessingDisorder (APD) and Autism Spectrum Disorder (ASD) — but reports frompsychologists did not support the author's suggestion that Mr Harris had beendiagnosed with all of these disorders.12 Further, they do not predispose a person toviolence. It was difficult to see any connection between them and the offending.13 Hewas not prepared to make any further allowance than he had already made for youth.14[10] The Judge noted that Mr Harris was initially charged with murder and the offerof a guilty plea to a manslaughter charge was made on 7 November 2022.15 The trialwas scheduled for March 2023 but resolution had been delayed because of inquiriesinto fitness to stand trial. The plea was entered on 6 March 2023. The Judge wasprepared to accept that the plea was entered at a relatively early stage.16 He was notprepared to allow a full 25 per cent guilty plea discount, however, reasoning that theCrown case was overwhelming. He allowed 20 per cent.17 He declined an additionaldiscount for remorse, beyond that inherent in the guilty plea.18Name suppression declined[11] The Judge declined permanent name suppression, noting that there was nothingin the reports to suggest Mr Harris would suffer any particular hardship if his name10 At [40].11 At [44].12 At [42].13 At [44].14 At [47].15 At [49].16 At [51].17 At [52].18 At [53].were published.19 The argument for suppression rested entirely on Mr Harris' youthand the associated prospects of rehabilitation and reintegration. The mere risk toprospects of rehabilitation and reintegration, without more, could not amount toextreme hardship.20 The Judge distinguished this Court's judgment in DP v R on theground that the offender there had suffered a traumatic brain injury in his youth andthere was serious concern that publication would cause extreme hardship.21The appeal[12] Ms Cull KC, for Mr Harris, submitted that the starting point adopted by theJudge was too high, arguing by reference to comparable cases that a starting point ofseven to seven and a half years was appropriate. She contended that greater discountsought to have been allowed; the guilty plea discount ought to have been 25 per cent,which is appropriate when a charge is amended from murder to manslaughter, and thediscount of 15 per cent for youth and prospects of rehabilitation was too low. Thepsychological report and s 27 report contained information about Mr Harris which,although it might not provide a causal nexus for specific additional discounts, didjustify a greater discount for youth and rehabilitative prospects in this case. Shesubmitted that a discount in the order of 25 to 30 per cent would have been appropriate.[13] With respect to name suppression, counsel submitted that publication wouldcause extreme hardship because of risk to his rehabilitation and reintegration which,on the material before the Court, has been proceeding well. She argued that the bestinterest of the child should be the primary consideration when considering namesuppression. In oral argument she acknowledged that she could point to no specifichardship that results from publication, as opposed to the conviction and sentence ofimprisonment.The starting point[14] Ms Cull did not take issue with the Judge's approach to the starting point.He fixed it by reference to comparable manslaughter sentencing and sentencing for19 At [62] and [64].20 At [63]–[64].21 At [64] citing DP v R [2015] NZCA 476, [2016] 2 NZLR 306.aggravated violence which does not cause death. Rather she argued that comparablecases called for a lower starting point, citing R v SM,22 R v Edwardson,23 R v Pene,24and R v Hanara.25 She drew attention particularly to Hanara.[15] For the Crown, Mr Sinclair argued that the starting point was squarely withinrange having regard to the serious aggravating features of the offending. He remindedus of the leading authority on what remains the approach to sentencing formanslaughter, Tai v R,26 and drew attention again to SM and Edwardson as comparablecases.27[16] We accept that starting points of as low as six years have been adopted foryoung defendants whose offending happened in a tense and fast-moving setting.28That was found to be the position in Hanara, where a rough sleeper was killed afterhe asked a group who had borrowed his torch to return it.29 His request triggered agroup attack. The sentencing Judge found that there was no real premeditation andthe offending was impulsive.30 This offending was much more serious. As Mr Sinclairsubmitted, it was calculated and connected to the commission of a separate crimeagainst a person who presented as a convenient victim because he and his wife hadbeen willing to help Mr Harris with transport.[17] We are not persuaded that the starting point was too high. On the contrary, itwas within range for an adult offender.The guilty plea discount[18] It was open to the Judge to fix the guilty plea discount having regard to thestrength of the Crown case.31 Timing of the plea is not the only relevant consideration.22 R v SM, above n 6.23 Edwardson, above n 6.24 R v Pene [2021] NZHC 3327.25 R v Hanara [2023] NZHC 2057.26 Tai v R [2010] NZCA 598.27 Hanara, above n 25; and R v SM, above n 6.28 See R v SM, above n 6, at [18]–[19].29 Hanara, above n 25, at [2]–[9].30 At [45].31 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].We are not persuaded that he erred by doing so. It has not been suggested thatMr Harris had a viable defence.The discount for youth and rehabilitative prospects[19] The neuropsychological report was prepared for sentencing at the request ofdefence counsel. The author, Amanda McFadden, is an experienced psychologist.There is no known family history of neurodevelopmental or learning disorders.Mr Harris was hyperactive and difficult to manage as a child and did not attend schoolfull-time until he was six. He had symptoms of ADHD and ODD. He was sociableand did well at primary school with teacher aide support. But he struggled with thetransition to college in year seven and was soon on daily report, with multiplestand-downs. He moved schools twice and ended his school career in 2021 withoutany qualifications. He reported that he began using cannabis in 2018.[20] Following his arrest, Mr Harris was held at a youth justice facility,Te Maioha o Parekarangi, where his behaviour has improved. He does not present asdysregulated or overly impulsive but tends to be guarded and prone to disengage. Heis viewed as a planner or thinker and conveys the impression that he is more intelligentand skilful than many other youths in residence. His Full-Scale IQ falls within thelow-average range. He has achieved a number of NCEA unit standards. His readingage has been assessed as 12 to 13. Expert assessment has confirmed that he hasage-appropriate logical thinking skills, but low verbal comprehension and signs ofAPD. He was diagnosed with that disorder in 2021. People affected by it can hearinformation but have difficulty storing and retrieving it in social or learning settings.He also has symptoms of ADHD but there is no evidence of ASD orFoetal Alcohol Spectrum Disorder.[21] Ms McFadden could find little data to support a history of physical aggression.Rather, past behavioural difficulties appear to involve disruption, defiance ordisrespect of others.[22] These findings are a mixed blessing for Mr Harris when it comes to sentencing.On the one hand they point to potential for rehabilitation and help to explain limitedevidence of remorse. On the other, they suggest that his neuropsychologicaldifficulties did not contribute in a substantial way to the offending.[23] The s 27 report was written by Tara Oakley. Her report asserts that Mr Harrishas multiple diagnoses (ADHD, ODD, APD and ASD), is highly susceptible tonegative influences, and was intoxicated from cannabis at the time of the offending.She speaks positively of his whānau, describing them as a very close family whooperate as a collective and raised Mr Harris with connection to his Māoritanga. Butshe says that he was surrounded by others who were culturally disenfranchised, citingthe impact of colonisation on his iwi. She notes his exclusion from mainstreameducation at the age of 15 and cites the theory of intersectionality.[24] Some of these propositions appear to be based on her interview with Mr Harrisand are not borne out by the evidence, as the Judge noted.32 We have noted a clearcurrent diagnosis of APD and some symptoms of ADHD, and no history of violence.Others, such as the negative influence of others, were not evident in connection withthe offending. There is no evidence that Mr Harris was affected by cannabis at thetime of the offending and she does not suggest that he is addicted, though she findshim susceptible to addiction. As the Supreme Court stated in Berkland v R, s 27 reportsfor Māori offenders should focus on the offender's own community.33 Wider historicaldispossession and social disruption are relevant, but must manifest in a causalconnection to the offending.34 Mr Harris' own explanations for the offending suggesta possible connection to cultural disadvantage through a peer group in which stealingcars appears to be an acceptable activity.35 However, there is no real evidence of it. Itis also apparent that the cycle of deprivation has been weakened in Mr Harris'whānau.36[25] In our view the principal mitigating factors for Mr Harris are his youth andimmaturity, which mitigate culpability for the reasons recently affirmed in32 Sentencing notes, above n 2, at [43].33 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [146].34 At [125].35 There are indications of this in the s 27 report.36 Berkland, above n 33, at [110].Dickey v R,37 and his prospects of rehabilitation, which are good notwithstanding hispsychological and social difficulties. He did not think through the likely consequencesof his decision to steal the car. But as noted, the offending was not characterised bypeer pressure or impulsivity, nor does there appear to be a clear causal connection toMr Harris' neuropsychological difficulties.[26] The sizing of the discount for youth and prospects of rehabilitation presentsdifficulties. Other sentencing objectives may prevail when the offending is especiallyserious.38 That may reduce the discount available. A court may reach the same endresult when comes to the final step in the sentencing analysis, when the court standsback and assesses the sentence against applicable sentencing purposes and principlesas a matter of overall impression.39 In Dickey, that resulted in adjustments at the finalstep. The end sentences were longer than those that would have resulted from simplytallying all available discounts.40[27] But for the intrinsic seriousness and aggravating features of the offending, adiscount of more than 15 per cent would be warranted to reflect Mr Harris' youth andimmaturity, neuropsychological difficulties and prospects of rehabilitation. But weare not persuaded that Campbell J erred by fixing it at 15 per cent in the particularcircumstances of this case. This was a premeditated attack on a couple who werechosen as victims because of their willingness to help Mr Harris and his friends. Thatfeature of the offending has been especially difficult for Mr Biggins' family to cometo terms with. They feel, understandably, that Mr Harris must be held accountable forit.Overall assessment[28] This was a difficult sentencing. It featured both extremely serious aggravatingfacts and strongly mitigating personal characteristics, principally the passingimmaturity of youth.37 Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [85]–[86] citing Churchward v R [2011] NZCA531, (2011) 25 CRNZ 446 at [50]–[55] and [77]–[91].38 Berkland, above n 33, at [111].39 Dickey, above n 37, at [175] citing R v Williams [2005] 2 NZLR 506 (CA) at [67].40 Dickey, above n 37, at [175] and [210]–[211].[29] Standing back, we consider the Judge did not err in his assessment. The endsentence of five years and 10 months' imprisonment was stern for an offender whowas aged 15 at the time, but it was not manifestly excessive. We decline to interferewith it.Name suppression[30] Had Mr Harris been charged with an offence which allowed him to be dealtwith in the Youth Court, he would have enjoyed automatic name suppression. Thatreflects a legislative assumption that publication of a youth offender's name may affectrehabilitation and reintegration. Youths may also lack the emotional maturity to dealwith publication of their name in connection with offending.41[31] However, a young person who is charged with murder or manslaughter mustbe dealt with in the High Court and the legislature has not provided for automaticsuppression. On the contrary, the young person must satisfy the court that publicationof their identity would cause them extreme hardship.42 The legislation leaves no roomfor a presumption in favour of suppression. It calls for a case-specific inquiry in whichthe starting point is the open justice principle. The court must recognise the youngperson's right to have their need for rehabilitation and reintegration considered.43Somewhat contrary to the view taken by Campbell J, a court may quite readily besatisfied that hardship is extreme where publication is likely to change the course of apro-social and perhaps promising future. But the extreme hardship must result frompublication, as opposed to the conviction and sentence. Where the offending wasserious it may be difficult to point to hardship that is specifically attributable topublication of the young person's name. That may be even more so when the initialpublication will occur while the young person is serving a term of imprisonment.[32] We accept that Mr Harris' offending will attract publicity having regard to itsaggravating features and public concern about serious and reckless youth offending.41 R v Q [2014] NZHC 550 at [43].42 Robertson v Police [2015] NZCA 7 at [48]–[49]. Mr Harris does not invoke any other of thegrounds in s 200(2) of the Criminal Procedure Act 2011.43 DP v R, above n 21, at [10]; and Convention on the Rights of the Child 1577 UNTS 3 (opened forsignature 20 November 1989, entered into force 2 September 1990), art 40.1.[33] But as Mr Sinclair noted, cases in which young offenders have been grantedpermanent suppression for serious offending usually involve applicants who areparticularly vulnerable to publication for some reason. That explains DP v R, in whichthis Court identified a real risk that publication would cause the applicant harm whileconfined in a youth justice facility and noted a risk of self-harm and an absence offamilial support on his eventual release.44 It is much easier to point to adverseconsequences of publication where the offender is being discharged withoutconviction, as in R v Q,45 or is to serve a sentence whose purpose is primarilyrehabilitative.[34] We have noted that in this case Ms Cull acknowledged that Mr Harris cannotpoint to any such considerations. He has been convicted and sentenced to a term ofimprisonment. He has good prospects of rehabilitation and has already made progress.He is about to become eligible for parole and we are prepared to assume that he islikely to be released before he must be moved to an adult prison in August 2024. Sopublication could occur about the same time as he returns to the community on releaseconditions. But there is nothing to show that publication will affect his rehabilitationor otherwise cause him hardship over and above that inherent in the sentence. Inparticular, there is no suggestion that he will not cope with the notoriety he may attracton publication of his name in connection with the killing of Mr Biggins.[35] A court must also take account of the views of the victim when consideringpermanent suppression of an offender's name.46 In this case victims strongly opposeit. Mr Biggin's widow Carolyn Biggins takes the view that the suppression ofMr Harris' name and publication of Mr Biggins' has been unfair, leading people tothink Mr Biggins was in some way at fault, and Mr Harris should be named "as theperson who took Michael's life". Another close relative feels that the application forsuppression devalues Mr Biggins' life and shows that Mr Harris cares only that peopleshould not know how bad a person he is.44 DP v R, above n 21, at [23]–[31].45 R v Q, above n 41.46 Criminal Procedure Act, s 200(6).[36] For these reasons, which correspond generally to those of Campbell J, we aresatisfied that Mr Harris cannot show that publication of his name would cause himextreme hardship.Disposition[37] The appeal against sentence and refusal of permanent name suppression isdismissed.Solicitors:Crown Law Office, Wellington for Respondent