and Nicholas Harris v The Queen - [2013] VSCA 234

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0083
NICHOLAS HARRIS	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 August 2013
DATE OF JUDGMENT	20 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 234
JUDGMENT APPEALED FROM	DPP v Harris (Unreported, County Court of Victoria, Judge Douglas, 22 April 2013)

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CRIMINAL LAW — Sentencing — Young offender — Sentence of three years and four months’ imprisonment imposed on plea of guilty to one charge of aggravated burglary, one charge of common assault, one charge of recklessly causing injury, one charge of contravention of Family Violence Order and one charge of unlawful assault — Whether judge erred in concluding that nature and gravity of offending precluded a Youth Justice Centre Order — Whether sentence manifestly excessive — Application for leave to appeal granted but appeal dismissed — No point of principle.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M D Stanton	Mr Greg Thomas Barrister & Solicitor
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

In this matter I have had the advantage of reading in draft the reasons for judgment of Coghlan JA. I agree with his Honour for the reasons he gives that there should be leave to appeal on Ground 2 but that the appeal should be dismissed.

COGHLAN JA:

On 11 April 2013 the applicant pleaded guilty to the charges set out in the table below and on 22 April 2013 he was sentenced as set out accordingly.

charge on indictment offence maximum sentence
Cumulation

1 Aggravated Burglary [Crimes Act 1958 (Vic) s 77] 25 Years [Crimes Act 1958 (Vic) s 77(2)] 2 and a half years Base

2 Common assault (Common Law) 5 years [Crimes Act 1958 (Vic) s 320] 10 months 4 months

3 Recklessly causing injury [Crimes Act 1958 (Vic) s 18] 5 years [Crimes Act 1958 (Vic) s 18] 6 months 2 months

Summary Charge 1 Contravention of a Family Violence Intervention Order [Family Violence Protection Act 2008 (Vic) s 123] 2 years [Family Violence Protection Act 2008 (Vic) s 123] 6 months 3 months

Summary Charge 4
Unlawful Assault [Summary Offences Act 1966 (Vic) s 23] 3 months [Summary Offences Act 1966 (Vic) s 23] 1 month 1 month

Total Effective Sentence: Three years and four months

Non-Parole Period: 20 months

Pre-sentence Detention Declared: 167 days

6AAA Statement: 4 and a half years with non-parole period of 2 and a half years

Other orders:

Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958

By Notice of Appeal dated 23 May 2013 the applicant seeks leave to appeal against sentence.

The proposed grounds of appeal are:

The learned sentencing judge erred at law by determining that the offending was too serious for a youth justice centre order to be within range.
The sentence is manifestly excessive in…

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: [2013] VSCA 234
Decision Date: 20 September 2013

CaseChat Overview and Summary

Nicholas Harris was before the Court in an appeal against his sentence. Harris was sentenced to three years and four months' imprisonment for multiple offences including aggravated burglary, assault, and contravention of a Family Violence Order. The appeal was brought before the court on the grounds that the sentence was manifestly excessive and that the trial judge had erred in concluding that a Youth Justice Centre Order was precluded due to the nature and gravity of the offending. The Court considered the appeal and assessed whether the sentence was appropriate given the circumstances of the case.

The primary legal issues the court needed to decide were whether the trial judge had erred in concluding that the nature and gravity of the offending precluded a Youth Justice Centre Order, and whether the sentence was manifestly excessive. In reaching its decision, the court examined the principles of sentencing in relation to young offenders, the severity of the crimes committed, and the appropriateness of the sentence imposed.

The Court found that the trial judge's conclusion that a Youth Justice Centre Order was precluded was correct, as the nature and gravity of Harris's offending warranted a more severe penalty. The court also concluded that the sentence was not manifestly excessive, taking into account the multiple and serious nature of the crimes committed. The Court granted the application for leave to appeal but dismissed the appeal, finding that there was no point of principle that warranted further consideration by a higher court. Consequently, the original sentence imposed on Harris was upheld.

Orders