HARRIS v NEW ZEALAND POLICE [2020] NZCA 55

HARRIS v NEW ZEALAND POLICE [2020] NZCA 55 [13 March 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA590/2019[2020] NZCA 55BETWEEN MICAH JAMES MORGAN HARRISApplicantAND NEW ZEALAND POLICERespondentCourt: French, Dobson and Moore JJCounsel: T J Mackenzie for ApplicantM L Wong for RespondentJudgment:(On the papers)13 March 2020 at 2.30 pmJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Harris pleaded guilty in the District Court to one charge of sexual violationby rape and was sentenced by Judge Gilbert to a term of imprisonment of two yearsand seven months.1 He appealed the sentence to the High Court. The appeal wasdismissed by Gendall J.2[2] Mr Harris now applies for leave to appeal to this Court. Leave is requiredbecause it would be a second appeal. The Crown opposes leave being granted.[3] By minute dated 18 December 2019, Gilbert J directed that the issue of leavebe determined separately from the proposed appeal on the papers. This judgment isthat determination.The facts of the offending[4] Mr Harris and the complainant had known each other for about three and a halfyears. During part of that time, they had been in a romantic relationship. When thatrelationship ended, there was a gap of approximately 12 months when they did not seeeach other but later they resumed their friendship. This evolved into a casual sexualrelationship during times when both of them were single.[5] The rape occurred on 5 November 2018. Up until then there had been nosexual encounters between the two for a number of months because the complainanthad another partner.[6] In the early hours of 5 November 2018, Mr Harris contacted the complainantand they arranged for her to go to his address. Once she had arrived, they walked toa nearby park and smoked some cannabis before returning to his house. She agreedto stay the night there but reminded Mr Harris that she had a boyfriend and there wouldnot be anything sexual occurring.[7] Mr Harris and the complainant who was partially clothed got into the same bedwhere they cuddled and talked for a short time. Mr Harris started to touchthe complainant, but she pushed his hand away telling him not to go there. She thenturned her back on him, specifically saying that she did not want to have sex. She thenfell into a deep sleep.1 R v Harris [2019] NZDC 11242 [District Court decision].2 Harris v Police [2019] NZHC 2846.[8] The next thing the complainant recalled was Mr Harris waking her up. He toldher that while she had been asleep he had had sex with her. He said it had not lastedlong and that he had ejaculated inside her. She was shocked and immediately leftthe house.[9] When interviewed by the police, Mr Harris admitted the rape. He was aged 22at the time and the complainant was 19. He had no previous convictions.[10] The incident had a very significant impact on the complainant as detailed inher victim impact statement. She said she felt humiliated and degraded and for severalmonths expressed flashbacks, night terrors and panic attacks to the point where shehad difficulty functioning on a day to day basis. The rape took such a toll on herenergy and well being that it became overwhelming and resulted in her attemptingsuicide in March 2019 by taking an overdose. Although she was able to be revived,she sustained a hypoxic brain injury leaving her with short term memory issues.In April 2019 she was acutely admitted as a patient to a psychiatric hospital where shewas diagnosed with complex post traumatic stress disorder. She had to spend a monthin hospital and following discharge continued to require medical assistance.Sentencing in the District Court[11] Sentencing for sexual violation is currently based on the decision of this Courtin R v AM.3 The decision identifies culpability assessment factors and then sets outsentencing guidelines in the form of sentencing bands with a range of starting points.Which band any particular case will fall into depends on the number and nature ofaggravating factors present.[12] The culpability assessment factors in relation to rape include whetherthe offending involved planning or premeditation, additional violence over and abovethat inherent in sexual violation, abduction, home invasion, vulnerability of the victim,the harm suffered by the victim, whether there were multiple offenders, scale ofthe offending in terms of its duration, breach of trust, hate crime, degree of violation,and whether there was a mistaken belief in consent. In relation to the latter factor,3 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.the Court drew a contrast between a case where the offender knows there is no consentand a case where they unreasonably but genuinely believe there is consent. The Courtsuggested that in appropriate cases the genuineness of the mistaken belief may reduceculpability.4[13] Judge Gilbert found that Mr Harris' offending fell at the lower end of rape bandone which meant a starting point of six years' imprisonment.5 It was said of rape bandone in R v AM that it is appropriate where the aggravating features are either notpresent or present to a limited extent.6 The range of starting points in band one is sixto eight years' imprisonment.7[14] Having identified the appropriate starting point in this case as six years'imprisonment, Judge Gilbert then reduced that by two and a half years (41 per cent)on account of Mr Harris' previous good character, his relatively young age and hisgenuine remorse.8 The Judge then applied a further discount for the prompt guiltyplea resulting in an end sentence of two years and seven months' imprisonment.9[15] As mentioned, this sentence was upheld on appeal to the High Court.The application for leave to appeal to this Court[16] In order to obtain leave, Mr Harris must persuade us that his proposed appealinvolves a matter of general or public importance or that a miscarriage of justice hasoccurred or may occur unless his proposed appeal is heard.10[17] As explained by his counsel, Mr Mackenzie, the proposed appeal seeks tochallenge the sentencing bands in R v AM, particularly band one and the entry point ofsix years' imprisonment. Mr Mackenzie submits that rightly or wrongly sentencingjudges rarely if ever go outside the bands.11 That in turn means, because of the six year4 At [53].5 District Court decision, above n 1, at [37]–[38].6 R v AM, above n 3, at [93].7 At [90].8 District Court decision, above n 1, at [39]–[42].9 At [44]–[45].10 Criminal Procedure Act 2011, s 253(3).11 Mr McKenzie said he was unable to locate any decisions where judges had sentenced outside thebands.entry point, that a non-custodial sentence will never be available. Mr Mackenziecontended this was contrary to the Sentencing Act 2002 and the duty on sentencingjudges to impose the least restrictive outcome.[18] If the Court acceded to this argument and were minded to apply a lower oradjusted band, then Mr Harris' appeal would address two further questions also saidto be of general or public importance namely (a) a re-consideration of the approach tos 128B of the Crimes Act 1961 which creates a presumption of imprisonment forsexual violation and (b) a reconsideration of the approach to the calculation ofdiscounts for mitigating factors in sentencing.Our view[19] We acknowledge the existence of concerns that some sentencing judges maybe applying the R v AM sentencing bands in a mechanistic way, despite the R v AMdecision itself confirming that departure from the bands is permissible and despitethis Court emphasising on several occasions that guideline decisions are just that,guidelines.12[20] We also acknowledge the existence of concerns that the lowest starting pointin the R v AM bands if applied in a mechanistic way has the potential to result inexcessive sentences because it effectively precludes the possibility that a rape ofrelatively low culpability could ever receive a non-custodial sentence such as homedetention.13[21] Accordingly, we would not preclude the possibility of this Court undertakinga review of the R v AM sentencing bands in the future in an appropriate case(s).However, we are satisfied that Mr Harris' case is not an appropriate case to be thevehicle for such a review.[22] That is because in our view it is not reasonably arguable that this was a case ofrelatively low culpability where the application of the R v AM bands has caused12 R v AM, above n 3, at [83]. See for example Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648at [10(a)] and [48]; and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [62].13 For a recent example see the decision of R v [I] [2020] NZHC 374 at [43] and [88].injustice or which raises a proper concern. This was a case where the offender knewfull well the complainant was not consenting. She had told him twice that she did notwant sex and had expressly rebuffed his advances before falling asleep. He knew shewas in a deep sleep and knew she had been affected by cannabis. There were elementsof vulnerability and breach of trust. Further, there was ejaculation inside of thecomplainant.14 And there was significant emotional harm.15[23] In short, a custodial sentence was fully justified on the facts of the offending.Home detention would not have been an appropriate outcome.Outcome[24] We therefore decline to grant leave to bring a second appeal.Solicitors:Crown Law Office, Wellington for Respondent14 As stated in R v Nixon [2016] NZCA 589 at [38], this is an aggravating factor.15 As Judge Gilbert noted, although the complainant may have suffered mental health difficultiesbefore the rape, the reality was that the offending had had a very significant impact on her.District Court decision, above n 1, at [45].