Kamera Jacob Tamati Harris v R
| Jurisdiction | New Zealand |
| Judge | Miller J |
| Judgment Date | 21 September 2023 |
| Neutral Citation | [2023] NZCA 462 |
| Court | Court of Appeal |
| Docket Number | CA305/2023 |
[2023] NZCA 462
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Court: Miller, Ellis and van Bohemen JJ
CA305/2023
C S Cull KC for Appellant
FRJ Sinclair for Respondent
Criminal Sentence — appeal against a sentence of 5 five years and 10 months imprisonment for manslaughter and refusal to grant permanent name suppression — youth offender — cultural deprivation — neurological difficulties — Sentencing Act 2002
The appeal was dismissed.
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A The appeal against sentence is dismissed.
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B The appeal against refusal of name suppression is dismissed.
(Given by Miller J)
Kamera Harris appeals his sentence of five years and 10 months' imprisonment for the manslaughter of Michael Biggins, 1 and the refusal of permanent name suppression. 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: 3
Background
[9] On 26 September 2021, a friend of yours introduced you to Mr 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 anytime he was going to Kerikeri. She quite clearly shared the same generosity of spirit as her husband. On the 26 th of September, Mrs Biggins agreed to drive you and your friend to Kerikeri and took you to several locations before taking you 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 car and 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 KC tells me that you always carried a knife because you thought it made you seem more intimidating. He accepts that that does not diminish your responsibility for what happened.
[12] After selecting the knife, you and your friend then waited until it got dark. You went to Mrs Biggins' home at about 7.45 pm and asked Mrs Biggins if she would drive you to your aunt's house on Lake Road. Mrs Biggins declined 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 metres from the intersection with Lake Road.
[14] Mr Biggins was found unresponsive inside the car, with his foot lodged on the accelerator. The front passenger door was open, and the engine was 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 left chest that had punctured his left lung and heart and fractured a rib, and a 3.8cm deep 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 near the vehicle. Your DNA was found on the handle of the knife.
[18] At around 3.00 am to 4.00 am you and your friend arrived back at your other friend's house where you informed him and another friend that you had stabbed Mr Biggins.
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 tried to disarm Mr Harris and a fight ensued. 4 The Judge was not asked to accept the account offered to the author of the pre-sentence report, to whom Mr Harris explained that instead of getting out of the car when asked to do so, Mr Biggins punched him in the face, seized the knife and stabbed him. Sentencing proceeded on the basis that Mr Harris did not intend to kill but assumed Mr Biggins would comply when threatened.
Mr Harris was 15 years of age at the time of the offending. His friend was 12.
The offending was characterised by several serious aggravating features: it involved the use of a weapon, it occurred in an attempt to steal Mr Biggins' car and it was premeditated. 5
Campbell J noted the facts and the aggravating factors we have mentioned. He adopted a starting point of nine years' imprisonment, by reference to comparable cases. 6
The Judge allowed a discount of 15 per cent for youth and capacity for rehabilitation. 7 He noted that there was no suggestion that the offending was the result of susceptibility to negative influences or outside pressures. 8 He accepted that Mr Harris did not think it through, expecting that Mr Biggins would simply hand over the keys, but he did not accept that Mr Harris' actions were impulsive. 9
A s 27 report was tendered. The Judge found that it did not identify a causal connection between systemic Māori deprivation and the offending; Mr Harris has a strong affiliation with his Ngāpuhi whānau, who live by te ao Māori values and provide him with strong support. 10
Nor did the Judge identify any connection between learning difficulties and the offending. 11 The author of the s 27 report referred to a list of disorders which she considered were linked to Mr Harris' offending — Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD), Auditory Processing Disorder (APD) and Autism Spectrum Disorder (ASD) — but reports from psychologists did not support the author's suggestion that Mr Harris had been diagnosed with all of these disorders. 12 Further, they do not predispose a person to violence. It was difficult to see any connection between them and the offending. 13 He was not prepared to make any further allowance than he had already made for youth. 14
The Judge noted that Mr Harris was initially charged with murder and the offer of a guilty plea to a manslaughter charge was made on 7 November 2022. 15 The trial was scheduled for March 2023 but resolution had been delayed because of inquiries into fitness to stand trial. The plea was entered on 6 March 2023. The Judge was prepared to accept that the plea was entered at a relatively early stage. 16 He was not prepared to allow a full 25 per cent guilty plea discount, however, reasoning that the Crown case was overwhelming. He allowed 20 per cent. 17 He declined an additional discount for remorse, beyond that inherent in the guilty plea. 18
The Judge declined permanent name suppression, noting that there was nothing in the reports to suggest Mr Harris would suffer any particular hardship if his name
Ms Cull KC, for Mr Harris, submitted that the starting point adopted by the Judge was too high, arguing by reference to comparable cases that a starting point of seven to seven and a half years was appropriate. She contended that greater discounts ought 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 the discount of 15 per cent for youth and prospects of rehabilitation was too low. The psychological report and s 27 report contained information about Mr Harris which, although it might not provide a causal nexus for specific additional discounts, did justify a greater discount for youth and rehabilitative prospects in this case. She submitted that a discount in the order of 25 to 30 per cent would have been appropriate.
With respect to name suppression, counsel submitted that publication would cause 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 best interest of the child should be the primary consideration when considering name suppression. In oral argument she acknowledged that she could point to no specific hardship that results from publication, as opposed to the conviction and sentence of imprisonment.
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 for
For the Crown, Mr Sinclair argued that the starting point was squarely within range having regard to the serious aggravating features of the offending. He reminded us of the leading authority on what remains the approach to sentencing for manslaughter, Tai v R, 26 and drew attention again to SM and Edwardson as comparable cases. 27
We accept that starting points of as low as six years have been adopted for young defendants whose offending happened in a tense and fast-moving setting. 28 That was found to be the position in Hanara, where a rough sleeper was killed after he asked a group who had borrowed his torch to return it. 29 His request triggered a group attack. The sentencing Judge found that there was no real premeditation and the offending was impulsive. 30 This offending was much more serious. As Mr Sinclair...
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