Harris v R

JurisdictionNew Zealand
JudgeWinkelmann J
Judgment Date21 December 2018
Neutral Citation[2018] NZCA 632
Docket NumberCA454/2017
CourtCourt of Appeal
Date21 December 2018
Between
Michael Harris
Appellant
and
The Queen
Respondent

[2018] NZCA 632

Court:

Miller, Winkelmann and Williams JJ

CA454/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Appeal against sentence — whether starting point too high — whether insufficient allowance for guilty plea, remorse and time spent on restrictive bail conditions

Counsel:

W D McKean for Appellant

M J Lillico and K L Kensington for Respondent

  • A The appeal is allowed. B The sentences are quashed.

  • C An end sentence of five years and four months' imprisonment is imposed, consisting of the discrete sentences set out at [51] of this judgment.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Winkelmann J)

1

Mr Harris offended against 18 different complainants between 2005 and 2014. He was convicted, following guilty pleas, of 42 charges as follows:

  • (a) 15 charges of indecent assault, an offence under s 135 of the Crimes Act 1961 with a maximum penalty of seven years' imprisonment;

  • (b) 12 charges of disabling by stupefaction, an offence under s 197(1) of the Crimes Act with a maximum penalty of five years' imprisonment;

  • (c) one charge of attempted disabling by stupefaction, an offence under ss 197(1) and 311(1) of the Crimes Act with a maximum penalty of two and a half years' imprisonment;

  • (d) seven charges of making an intimate visual recording, an offence under s 216H of the Crimes Act with a maximum penalty of three years' imprisonment; and

  • (e) seven charges of possession of an intimate visual recording, an offence under s 216I of the Crimes Act with a maximum penalty of three years' imprisonment.

2

In sentencing Mr Harris, Fogarty J utilised a starting point of nine years' imprisonment, but then reduced that to eight years to take account of Mr Harris' guilty plea and his remorse. 1

3

Mr Harris appeals his sentence on two grounds:

  • (a) the starting point was too high, two years greater than the maximum sentence for indecent assault and out of step with other sentences for low level but extensive sexual offending; and

  • (b) insufficient recognition was given for the guilty plea, remorse and the time he spent on restrictive bail conditions.

4

Mr McKean, counsel for Mr Harris, asks this Court to re-sentence Mr Harris, and when doing so, to take into account the forfeiture ordered since the date of sentencing.

The offending
5

Most of Mr Harris' offending occurred in a backpackers' hostel Mr Harris ran between 2012 and 2014 (the Lodge). Seventeen complainants of the offending were guests of the Lodge, aged between 19 and 30. The offending involved a pattern of behaviour. Mr Harris would give the complainants a drink, who would then experience a rapid onset of tiredness. Some awoke during the night to find Mr Harris lying down behind them but pressed against them (which is colloquially referred to as “spooning”, an expression we adopt). Some recalled Mr Harris telling them that he loved them. Some recalled a light flashing, as if a camera were being used. Others could not recall the offending at all.

6

The offending against J occurred in a different time frame and different context. J was a family friend. The initial offending occurred sometime between 2005 and 2007, when J was around 15 years of age. J accompanied Mr Harris on a trip and the two stayed in a motel room together. In the middle of the night J awoke to find Mr Harris in bed with him, spooning him from behind. Mr Harris' explanation was that he was cold and J was “like a hot water bottle”.

7

Mr Harris offended further against J in a later time period. Between 2010 and 2012, when Mr Harris was staying with J, Mr Harris would prepare J a drink of chocolate milk or juice and dissolve temazepam (a sleeping pill) into it. J would become unconscious and would wake up wearing only boxer shorts, despite going to sleep fully clothed.

8

The police were ultimately alerted to the offending by one of the complainants who had stayed in the Lodge. When they executed a search warrant, they found electronic equipment containing numerous photographs of young European males. The photographs showed young men who appeared to be in a comatose state, most in their underwear, although some fully clothed. These photographs revealed that Mr Harris would sometimes move clothing, bedcovers, or hands when photographing the complainants in order to expose their lower torso.

9

A series of photos showed J as he was progressively undressed and positioned for a number of photographs at each stage. Included within deleted images was one of J fully naked on top of the bed with J's hand placed on top of his own penis. This particular degree of exposure was unusual for Mr Harris' offending. In all other photographs the complainants were wearing, at the least, their boxer shorts. There was only one other photograph which went beyond this, capturing an image of the genitalia of one complainant exposed through a gap in the complainant's underwear. From the content of the other photographs, it seems likely that exposure was accidental in the sense that it was not intended, and not achieved by Mr Harris deliberately moving the clothing.

10

In relation to the indecent assault charges, four of those related to moving of the bedclothes and clothing, and 11 charges related to the incidents of spooning. Although there were multiple photographs taken, only seven of those photographs had content which could be described as intimate. Those photographs give rise to the charges of making and possessing intimate visual recordings. The two we have mentioned clearly fit this description. The other five seem to have been categorised in that manner on the basis that they are shots of the torso only and for that reason could be said to focus on the genital region more than would be the case if an image of the whole of the complainant were captured.

The sentence
11

The Judge agreed with counsel that it was impossible to impose a sentence per charge, rather treating the offending as one set of behaviour. 2 The Judge said that the offending involved seriously culpable conduct that warranted a significant sentence, given the sheer volume of offending, conducted in secret and largely achieved by stupefying the complainants. 3

12

The Judge rejected the submission for Mr Harris that the offending did not involve sexual gratification. 4 He was satisfied the photographs were taken to give Mr Harris some form of gratification. Some of the indecent assaults were in the nature of unwanted touching but all involved an invasion of privacy. The Judge noted the high value the common law places on privacy. 5 Although the complainants were not physically violated, he regarded Mr Harris' offending as serious. For those reasons, he agreed with the Crown's assessment of a starting point of nine to 12 years, adopting the lower end of that range of nine years. 6

13

From that starting point, the Judge then allowed a 10 per cent discount for Mr Harris' guilty plea, which was entered two weeks before trial. He explained that he was satisfied the early plea was entered after an appropriate time and following the resolution of preliminary matters. 7 The Judge also allowed a discount of a further short period to account for remorse. 8

14

Mr Harris was therefore sentenced to eight years' imprisonment, a sentence the Judge divided as follows: 9

  • (a) Four years' imprisonment on each of the disabling charges, to be served concurrently with one another.

  • (b) One year's imprisonment on the attempted disabling charge, to be served concurrently with the disabling charges.

  • (c) Two and a half years' imprisonment on the indecent assault charges, to be served cumulatively on the sentences for the disabling; 10

  • (d) One and a half year's imprisonment on the charges of making and possessing intimate visual recordings, to be served cumulatively on the charges of indecent assault.

First ground of appeal: starting point too high
15

Mr McKean submits that the starting point adopted was too high — it was more than the maximum sentence for indecent assault by two years, almost twice the maximum sentence for stupefying and three times the maximum sentence for both possession and making of an intimate recording. Whilst it was accepted by Mr McKean that this was serious offending of its kind, one could not say it was so bad that the sentence should exceed the maximum sentence for the most serious offence. He also submitted that the starting point does not sit well with other sentencing cases involving significantly greater sexual offending.

16

Because of the approach the Judge took to sentencing, we find it difficult to assess the appropriateness of the starting point. The Judge took a global approach, unmoored from any considerations of the maximum sentence for any particular offence, or the offending against particular complainants. Whilst this makes the task for us more difficult on appeal, it does not necessarily follow that the end sentence arrived at was manifestly excessive. Accordingly, we have decided to undertake our own sentencing exercise.

17

We adopt the following approach to selecting a starting point. First, we identify the offending against a complainant which is the most serious and calculate the starting point as though sentencing for offending against that person alone. We then uplift for the offending against the other complainants. It is clear that if the totality of the offending requires a sentence which exceeds the maximum penalty for that lead offence, cumulative sentences must be used. 11 We do not therefore accept Mr McKean's submission that the Judge was in error to impose a sentence which exceeded the maximum sentence for the most serious offence. It is a principle of sentencing law that the sentence imposed must reflect the totality of the offending.

Assessing the seriousness of the offending
18

In this case we...

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