HARRIS v NEW ZEALAND POLICE [2019] NZHC 3044

HARRIS v NEW ZEALAND POLICE [2019] NZHC 3044 [27 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-403[2019] NZHC 3044UNDER The Criminal Procedure Act 2011BETWEEN MATTHEW JAMES HARRISAppellantAND NEW ZEALAND POLICERespondentHearing: 20 November 2019Appearances: J A Kincade and A Shendi for the AppellantB Hamilton for the RespondentJudgment: 27 November 2019JUDGMENT OF POWELL JThis judgment was delivered by me on 27 November 2019 at 3.30 pmRegistrar/Deputy RegistrarDate:[1] On 12 August 2019 Judge N R Dawson in the District Court in Aucklandsentenced the appellant, Matthew Harris, to 19 months' imprisonment.1 Mr Harris hadpleaded guilty to a wide range of relatively low-level offending over a lengthy period.The offending comprised a single charge of male assaults female;2 two counts of theft(over $1,000);3 six counts of theft (under $500);4 possession of pipe or anotherutensil;5 possession of knife in a public place;6 obstructing police;7 breachingsupervision order;8 breaching community work;9 and two counts of failing to answerDistrict Court bail.10[2] Mr Harris appeals against his sentence on the grounds it was manifestlyexcessive. While Mr Harris takes no issue with the starting point adopted by thesentencing Judge, he says that he should have received more than the 17.4 per cent hereceived for his guilty plea, and that his sentence should have been reduced by twomonths to reflect his willingness to engage in restorative justice.[3] It is well established that an appeal of this type must be allowed if the Judge issatisfied that there is an error in the sentence imposed on conviction and that a differentsentence should be imposed.11 In any other case, the appeal must be dismissed.12 Themeasure of error is the sentence be "manifestly excessive", a principle "wellengrained" in the Court's approach to sentence appeals.13 That is to be determined byreference to the final sentence, not the route adopted to reach it.14 How the sentencewas structured is not material.151 Police v Harris [2019] NZDC 15888.2 Crimes Act 1961, s 194(b): maximum period of two years' imprisonment.3 Section 219 and 223(b): maximum period of seven years' imprisonment.4 Section 219 and 223(d): maximum period of three months' imprisonment.5 Misuse of Drugs Act 1975, s 13(1)(a) and (3): maximum period of one-year imprisonment.6 Summary Offences Act 1981, s 13A: maximum period of three months' imprisonment.7 Section 23(a): maximum period of three months' imprisonment.8 Sentencing Act 2002, s 70(a): maximum period of three months' imprisonment.9 Section 71(1)(a): maximum period of three months' imprisonment.10 Bail Act 2000, s 38: maximum penalty of one years' imprisonment.11 Criminal Procedure Act 2011, s 250(2).12 Section 250(3).13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].14 Ripia v R [2011] NZCA 101 at [15].15 Mita v R [2012] NZCA 137.The sentence imposed[4] Judge Dawson took the two theft charges (over $1,000) to be the leadoffending. The Judge adopted a starting point of 12 months' imprisonment for thosecharges and applied an uplift of six months for the male assaults female charge, andan uplift of three months for the other charges.16 The Judge also considered a furtherthree-month uplift was necessary to reflect Mr Harris's criminal history. This took thesentence to one of 24 months' imprisonment.[5] From that starting point, Judge Dawson allowed a one-month discount forcourses Mr Harris had completed whilst in custody. The Judge deducted a further fourmonths to reflect the guilty pleas (as noted being equivalent to 17.4 per cent).17 Onthe two leading theft charges, Mr Harris was sentenced to 19 months' imprisonmenton each to be served concurrently. On all other charges, Mr Harris was sentenced tothree months' imprisonment on each, to be served concurrently. The end sentence wastherefore a concurrent sentence of 19 months' imprisonment.18Issue one – adequacy of the guilty plea discount[6] It is submitted by Ms Kincade, on behalf of Mr Harris, that the guilty pleadiscount applied by the Judge is insufficient and a discount in the range of 20 to 25per cent would have been appropriate. Ms Kincade provided the Court with a tablesetting out when Mr Harris pleaded guilty to each of the charges. It was submittedthat Mr Harris had entered guilty pleas either at first appearance, at the case reviewhearing, or immediately upon the amendment of the charges and that in thecircumstance of this case represented the earliest and/or first available opportunity. Asa result Ms Kincade submitted the discount given by Judge Dawson was inadequatewith reference to Marsh v R.1916 Police v Harris [2019] NZDC 15888 at [20].17 Rounded to 17 per cent.18 Police v Harris [2019] NZDC 15888 at [21] and [22].19 Marsh v R [2018] NZHC 2485. In that case the appellant appealed against sentence on threegrounds, one being an inadequate discount (19.25 per cent) for guilty pleas.Discussion – guilty plea discount[7] There is no dispute a defendant is entitled to a reduction in sentence for a guiltyplea.20 However:21 the credit that is given must reflect all the circumstances in which the pleais entered, including whether it is truly to be regarded as an early or late pleaand the strength of the prosecution case. Consideration of all the relevantcircumstances will identify the extent of the true mitigatory effect of the plea.[8] Any reduction cannot exceed 25 per cent.22 In this regard:[75] Whether the accused pleads guilty at the first reasonable opportunityis always relevant. But when that opportunity arose is a matter for particularinquiry rather than formalistic quantification. A plea can reasonably be seenas early when an accused pleads as soon as he or she has had the opportunityto be informed of all implications of the plea. the credit that is given mustreflect all the circumstances in which the plea is entered, including whether itis truly to be regarded as an early or late plea and the strength of theprosecution case. Consideration of all the relevant circumstances will identifythe extent of the true mitigatory effect of the plea.[9] It is apparent from the table prepared by Ms Kincade that with regard to anumber of the charges Mr Harris did in fact plead guilty at the first opportunity.However, as discussed with Ms Kincade at the hearing the table does not tell the fullstory. First, it is clear that the charges did not have an orderly progression through theDistrict Court, noting that on a number of occasions Mr Harris simply did not turn upand this led to his arrest on at least five occasions. More fundamentally it is clear thatthe circumstances leading to the amendment of the charge of assault with intent toinjure to male assaults female came after Mr Harris had not only pleaded not guilty tothe original charge but it had been set down for a four hour Judge Alone Trial ("JAT").Mr Harris failed to appear at the scheduled hearing of the JAT on 4 June 2019 and thisled to the issue of a warrant for his arrest. When he was arrested and brought to Courttwo days later, a "resolution" appears to have been negotiated, and he then pleadedguilty.[10] Ms Kincade accepted these "complications" had led to counsel at thesentencing hearing seeking a maximum discount of 20 per cent, and acknowledged20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73].21 At [73].22 At [75].there was in fact a substantive basis for Judge Dawson not giving the maximum 25 percent discount available. In the circumstances I am satisfied that the discrete discountgiven by Judge Dawson was indeed within range and any adjustment between the17.4 per cent given and 20 per cent would clearly be "inadmissible tinkering". Itcertainly does not provide "a realistic basis upon which to disturb the sentenceimposed".23 Accordingly, I do not consider Judge Dawson erred in imposingMr Harris's guilty plea discount.Issue two – failure to take into account offer to participate in restorative justice[11] Ms Kincade submits that the sentencing Judge failed to consider Mr Harris'swillingness to engage in a restorative justice conference. It is submitted thatJudge Dawson ought to have allowed a discount in the order of two months to reflectthis mitigating feature.Discussion – restorative justice[12] A sentencing court is required, under s 9(2)(f) of the Sentencing Act 2002 totake into account remorse shown by an offender "or anything else described in s 10".Section 10(1)(a) provides that the Court must take into account any offer on the partof an offender to make amends. Accordingly, sentencing judges often give credit fora willingness on behalf of the offender to participate in restorative justice if it indicatesan expression of remorse.24[13] Restorative justice is a process that is designed to redress the harm done tovictims, hold the offender to account and engage the community in the developmentof programmes or strategies to prevent further offending. There is no disputeMr Harris was willing to participate in a restorative justice conference however thevictims declined to as they were entitled to do. As noted by the learned authors ofAdams on Criminal Law however, since the Criminal Procedure Act 2011 now allowsfor involvement in the restorative justice process as a matter of course, a willingnessto participate in a restorative justice conference that does not proceed may, of itself,23 Sekai v New Zealand Police [2014] NZHC 1348 at [34].24 Hela v R [2013] NZCA 237 at [9]; Elisaia v R [2015] NZCA 516 at [24]; and Whitcombe v NZPolice [2018] NZHC 1409 at [12].mean little. That willingness is to be given more weight when it is coupled with otherevidence that shows an offender has taken responsibility for his or her offending andwishes, in a meaningful way, to atone for it.25[14] In this case it is difficult to place much weight on Mr Harris' offer to engage inrestorative justice given the nature of the offences to which he had pleaded guilty.Specifically, it is apparent that few of the charges lent themselves to any form ofrestorative justice at all. The charges for possession of pipe or utensils, possession ofa knife, obstructing Police, breaching supervision and breaching community workwere clearly entirely inappropriate for restorative justice. Likewise, the fact that themale assaults female charge was committed against his partner with whom he so muchwanted to be with that he breached his bail conditions (with the feelings apparentlyreciprocated) also casts doubt on whether any offer to undergo restorative justice wasgenuine and/or deserving of any discrete credit.[15] This leaves the various theft charges. With one exception, these related toshoplifting from commercial stores: Torpedo 7, Kathmandu and Rebel Sport. Giventhe nature of these victims it is not surprising that they were not interested inrestorative justice, and Mr Harris would be likely to be aware of this fact.[16] In any event the offer to attend restorative justice was not matched by any otheroffer of amends for the purposes of s 10(1) of the Sentencing Act. In suchcircumstances, and noting that Mr Harris' shoplifting continued notwithstanding theinitial filing of charges, there must be significant doubt that any offer to participate inrestorative justice was genuine.26 As Judge Dawson noted at sentence when HisHonour acknowledged Mr Harris' expression of remorse:27You have expressed your remorse through your letter, but given your ongoingpersistent offending you need to be considered on your record, rather thanwhat you say you are going to do at sentencing. It sounds a little hollow whenyou just keep offending in the same way. You need to show that you can dowhat you say you want to.25 Henare v R [2017] NZHC 2397 at [17]; and Scott v R [2014] NZHC 1598.26 Sentencing Act 2002, s 10(2).27 Police v Harris [2019] NZDC 15888 at [19].[17] In the circumstances and notwithstanding Judge Dawson did not specificallyrefer to Mr Harris' offer to participate in restorative justice, I do not consider any formof discrete discount was warranted for Mr Harris' offer to participate in restorativejustice.Conclusion[18] Looking back I am satisfied that the discounts given by Judge Dawson wereappropriate, even generous, both for the courses attended by Mr Harris in custody andfor his guilty pleas. It follows the sentence was not manifestly excessive and theappeal must be dismissed.Decision[19] The appeal is dismissed._______________________________Powell J