Harrison v The Queen

[2012] NZCA 498

IN THE COURT OF APPEAL OF NEW ZEALAND

CA333/2012
[2012] NZCA 498

BETWEEN  ZURIAL JOHN THOMAS HARRISON
Appellant

AND  THE QUEEN
Respondent

Hearing:         29 October 2012

Court:             Harrison, Chisholm and Ronald Young JJ

Counsel:         K Clews for Appellant
M D Downs for Respondent

Judgment:      29 October 2012

ORAL JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

1. On New Years Eve 2010 the appellant had attended a New Years Eve party on Waiheke Island.  While waiting to get a bus to catch the ferry back to Auckland, he approached the victim and punched him once on the right hand side of his face.  The victim was knocked out.  The appellant then stomped on the victim’s head with his right foot.

2. Judge Wade in the District Court sentenced the appellant to 21 months’ imprisonment.[1]  The appellant submits the sentence was manifestly excessive.  He says a sentence of home detention should have been imposed.

Further facts and sentencing

[1]      R v Harrison DC Auckland CRI-2011-004-273, 13 April 2012.

1. The appellant’s punch was entirely unprovoked.  It knocked the victim out and he fell to the ground.  His head landed on a concrete half round drain.  While the victim was unconscious, the appellant lifted up his right foot and stomped on the left side of the victim’s head.  The victim’s head struck the concrete drain with significant force and made a loud cracking sound.  The appellant then ran off. 

2. The victim was treated at the scene and then taken to Auckland Hospital for treatment.  He had a fractured skull, swelling and bruising to the brain and a clot which required medical treatment for a week at Auckland Hospital.  After his discharge he continued to bleed and had to return to hospital.  He required hospital treatment for every week for the following three months.  He has suffered permanent harm from the assault; a 10 per cent hearing loss in his left ear and he cannot work long hours because his brain damage has caused a lack of concentration.

District Court

1. The Judge identified the relevant background facts and the victim impact.  He noted that on the seventh night in hospital the appellant had apparently visited the victim and apologised in person.  The Judge said that the assault had changed the victim’s life permanently for the worse.

2. The Judge considered that the offending fell into band three of R v Harris and that the proper starting point was two years and eight months’ imprisonment.[2]  The Judge noted that the original charge had been causing grievous bodily harm with intent but that had been reduced to one of injuring with intent to injure at the Crown’s request.  The Judge deducted 25 per cent for the appellant’s guilty plea and a further five per cent for his remorse. 

   [2]      R v Harris [2008] NZCA 528.

3. The Judge concluded that the offending was simply too serious to justify a sentence of home detention.  He said:

   I am urged by Mr Leauanae to consider home detention as that is a short term custodian sentence.  I regret I cannot do that.  I think this offence is simply too serious.  You have to be held accountable for what you have done.  There has to be an element of deterrence as well as accountability.

Discussion

1. Counsel for the appellant submitted that now that the appellant has served a short period of imprisonment, the Court of Appeal could quash the original prison sentence and impose a sentence of home detention.

2. This was serious offending.  The punch was unprovoked and with sufficient force to render the victim unconscious.  The appellant then stomped on the head of the unconscious victim.  The resulting serious head injury matched the seriousness of the assault.  A significantly longer sentence could have been imposed consistent with this Court’s observations in Harris.

3. We agree with the Judge that this offending was simply too serious for a sentence of home detention to be imposed.  In a case such as this deterrence and denunciation are of particular importance.  No error has been shown in the approach adopted by Judge Wade in the District Court.

Result

1. The appeal will be dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent