HARRISON v POLICE [2019] NZHC 1281

HARRISON v POLICE [2019] NZHC 1281 [7 June 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-000009[2019] NZHC 1281BETWEEN SAM TE PUEA HARRISONAppellantAND NEW ZEALAND POLICERespondentHearing: 6 June 2019Counsel: S Thode for AppellantKJG MacNeil for RespondentJudgment: 7 June 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 7 June 2019 at 2 pm.Registrar/Deputy RegistrarSolicitors:Thode Utting, Auckland.Crown Solicitor, Whangarei.The appeal[1] Mr Sam Harrison appeals his 20-month prison sentence on the basis it ismanifestly excessive.1Background[2] Mr Harrison pleaded guilty to three charges: male assaults female, and twocharges of breaching release conditions. Mr Harrison was released from prison on20 June 2018. He was required to report every week. On 17 September 2018, he didnot. More significantly, Mr Harrison repeatedly visited the complainant—his formerpartner—without the approval of his probation officer. This led to violence. On6 November 2018, Mr Harrison went to the complainant's home. She screamed athim to leave. Mr Harrison chased her—and punched her three times to the head. Itappears Mr Harrison believed the complainant had contacted the Police about him; hesaid to her, "I told you what I'd do if you got the Police onto me". The complainantmanaged to escape.[3] Mr Harrison gave chase. He tackled her in the middle of the road. Cars hadto stop. Mr Harrison held the complainant down, and then took her phone.Fortunately, Police arrived quickly. Mr Harrison was still on top of the complainantwhen they did. The complainant suffered a swollen cheek and ear.[4] Mr Harrison said he was just trying to get the complainant's phone off her.And, wanted money.[5] Mr Harrison pleaded guilty to the charges.Sentencing[6] Judge D J McDonald adopted a 16-month start point on the male assaultsfemale charge. The Judge deducted three months for the guilty plea. The Judgeimposed a seven-month cumulative term on the breach charges.1 Police v Harrison [2019] NZDC 2921.Argument[7] Mr Harrison contends the 16-month starting point was too high. He alsocontends a cumulative term on the breach charges was unwarranted, and in any event,a seven-month addition too much.Analysis[8] The crime of male assaults female has a maximum penalty of two years'imprisonment.2 No guideline judgment exists. So, Courts tend to look at other likecases for guidance. Mr Harrison argues his case is like or less serious thanR v Reihana,3 and Nixon v R.4[9] Mr Reihana visited his former partner's home. He could do so, providing oneof the children was not there. That child was. The complainant told Mr Reihana toleave. It is possible she pushed him. Mr Reihana punched her once to the face. Thecomplainant suffered a nasty swollen eye and split eyebrow. The first-instance Judgeimposed a 10-month term of imprisonment. The Court of Appeal quashed this. Itsubstituted a five-month prison term with leave to apply for home detention.[10] Mr Nixon was told by his flatmate he was messy. Mr Nixon told her to leave.When she did not, Mr Nixon pushed her. The complainant fell onto concrete.Mr Nixon then kicked her three times to the back. The complainant suffered bruising.The Court of Appeal upheld the sentence of 12 months' imprisonment. But, describedit as "firm".5[11] Mr Harrison's offending is much more serious than that of Mr Reihana andMr Nixon. Mr Harrison was prohibited from seeing the complainant (absentpermission). So, he should not have been at her home. His attack on her was not thefirst. Indeed, Mr Harrison had been released from prison only four-and-a-half months'2 Crimes Act 1961, s 194(b).3 R v Reihana CA143/03, 3 July 2003.4 Nixon v R CA87/01, 19 June 2001.5 At [26].earlier for serious violence against the complainant.6 The assault involved multipleblows to the head. As will be recalled, the complainant then ran away. Mr Harrisonchased and attacked her a second time—in the middle of the road. It follows theviolence was sustained. True, the complainant's injuries were modest. However, theother features just described mean this case is a bad example of its kind. The startingpoint was available for this reason.[12] The offence of breaching release conditions is punishable by up to 12 months'imprisonment.7 It can attract a cumulative term. QM v Police is instructive.8 QM wassentenced to 26 months' imprisonment for breaching a protection order, breachingrelease conditions, resisting arrest and male assaults female. The defendant kicked thecomplainant and tried to push her to the ground. A protection order existed. WhenPolice arrived, QM resisted arrest. All this occurred within weeks of QM's releasefrom prison, and in contravention of release conditions.[13] QM argued the last aspect should not have attracted a cumulative sentence.French J disagreed. Her Honour noted this offence was "different in kind" to theoffences of violence, and the defendant had a history of breaching orders.9[14] The same analysis is applicable to Mr Harrison. His offences are different inkind too. And, as Judge McDonald noted, Mr Harrison had 10 earlier convictions forbreach of release conditions. Denunciation was the primary sentencing objective.[15] Imposition of a seven-month cumulative term involved an element of doublecounting, because Mr Harrison's breach of release conditions influenced the startingpoint on the male assaults female charge. And as Mr MacNeil for the Crown veryproperly observed, the Judge does not appear to have mitigated the cumulative termin recognition of Mr Harrison's guilty pleas to the breach charges.6 Mr Harrison assaulted the complainant on 29 July 2017. He received a 14-month term ofimprisonment on 29 March 2018. Mr Harrison's record discloses at least two other offences inrelation to the complainant. On 26 and 27 October 2016, Mr Harrison assaulted her with intent toinjure, and as a male. He received a nine-month prison sentence on 27 April 2017.7 Sentence Act 2002, s 96(1).8 QM v Police HC Christchurch CRI-2010-409-216, 11 February 2010.9 At [18].[16] However, the ultimate question is whether the sentence is manifestly excessive.It is not. The offending involved serious domestic violence by an offender with ahistory of like violence against the same victim. As observed, denunciation was theprimary sentencing objective. And, the offending was at least as bad as that in QM.[17] The appeal is dismissed...Downs J