and Marc Stanton Harris v The Queen - [2015] VSCA 192

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0070
MARC STANTON HARRIS	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	23 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 192
JUDGMENT APPEALED FROM:	DPP v Carroll (Unreported, County Court of Victoria, Judge Stuart, 6 March 2015)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Multiple charges of criminal damage, theft and attempted theft – Significant damage caused – Aggregate sentence of 4 years and 5 months' imprisonment with non-parole period of 2 years and 11 months – Whether sentence manifestly excessive – Manifest excess not reasonably arguable – Co-offender sentenced in respect of lesser number of offences to aggregate sentence of 3 years and 3 months with non-parole period of 21 months – Parity – Whether parity principles infringed – Parity complaint not reasonably arguable – No reasonable prospect that less severe sentence would be imposed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the applicant	No appearances	Robert Stary Lawyers
For the respondent	Ms V Anscombe, Acting Solicitor for Public Prosecutions

BEACH JA:

Introduction

On 19 January 2015, the applicant pleaded guilty in the County Court to five charges of criminal damage, five charges of theft and one charge of attempted theft. On 2 March 2015, he pleaded guilty to a summary charge of failing to answer bail. On 6 March 2015, following a plea hearing, the applicant was sentenced as follows:

Charge on Indictment

Offence

Maximum

Sentence

1. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958] Aggregate sentence of 4 years 5 months’ imprisonment

2. Theft
[s 74 Crimes Act 1958] 10 years
[s 74(1) Crimes Act 1958]

3. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]

4. Theft
[s 74 Crimes Act 1958] 10 years
[s 74(1) Crimes Act 1958]

5. Attempted Theft
[s 321M Crimes Act 1958] 5 years
[s 321P Crimes Act 1958]

6. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]

7. Theft
[s 74 Crimes Act 1958] 10 years
[s 74(1) Crimes Act 1958]

8. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]

9. Theft [s 74 Crimes Act 1958] 10 years [s 74(1) Crimes Act 1958]

10. Criminal Damage (Intent Damage/Destroy) [s 197(1) Crimes Act 1958] 10 years
[s 197(1) Crimes Act 1958]

11. Theft
[s 74 Crimes Act 1958] 10 years
[s 74(1) Crimes Act 1958]

Summary offence

1.
Fail to Answer Bail [s 30 Bail Act 1977] 12 months
[s 30(1) Bail Act 1977]

Total Effective Sentence: 4 years 5 months’ imprisonment

Non-Parole Period: 2 years 11 months’ imprisonment

Pre-Sentence detention declaration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSCA 192
Decision Date: 23 July 2015

CaseChat Overview and Summary

Marc Stanton Harris sought leave to appeal against his sentence for multiple charges of criminal damage, theft, and attempted theft, which resulted in significant damage. The case was heard in the High Court of Australia, which was tasked with determining whether the sentence was manifestly excessive and whether it infringed parity principles with a co-offender who received a lesser sentence. The court was also required to decide if the appeal had a reasonable prospect of success.

The court examined the sentence, which was 4 years and 5 months' imprisonment with a non-parole period of 2 years and 11 months. The appeal hinged on whether this sentence was manifestly excessive and if it infringed parity principles given that a co-offender, responsible for a lesser number of offences, received a sentence of 3 years and 3 months with a non-parole period of 21 months. The court found that the sentence was not manifestly excessive, as it was well within the range of sentences typically imposed for such offences. Additionally, the court concluded that the parity complaint was not reasonably arguable since there was no reasonable prospect that a less severe sentence would be imposed. Consequently, the application for leave to appeal was dismissed.

The High Court held that the sentence imposed on Harris was not manifestly excessive and did not infringe on parity principles. The court found no reasonable prospect that a less severe sentence would be imposed, leading to the refusal of leave to appeal. The decision underscores the court's position on the appropriateness of the sentence and the parity between co-offenders, affirming the original sentencing decision.

Orders