Medium Neutral Citation: Harkin v R [2020] NSWCCA 242
Hearing dates: 2 September 2020
Decision date: 30 September 2020
Before: Hoeben CJ at CL at [1];
Button J at [87];
N Adams J at [88]
Decision:
(1) Leave to appeal granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – reckless wounding causing grievous bodily harm committed in company contrary to s 35(3) of the Crimes Act 1900 (NSW) – affray contrary to s 93C(1) of the Crimes Act – two s 9 bonds revoked and sentences imposed – indicative sentence of 6 years and 6 months with a non-parole period of 4 years and 6 months provided – whether court took into account reduced moral culpability by reason of the applicant’s mental health – whether proper regard was had to the applicant’s disadvantaged early life – whether due regard had to the principles of remorse and provocation – whether the totality principle applied – whether sentence manifestly excessive – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW) ss 35(3), 93C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 9, 10(1)(b), 10A, 21A, 54B(4), 54B(7)

Cases Cited:
AK v Regina [2020] NSWCCA 194
Aslan v R [2014] NSWCCA 114
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v Regina (2007) 168 A Crim R 41; [2007] NSWCCA 1
Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
Dungay v R [2020] NSWCCA 209
House v R (1936) 55 CLR 499; [1936] HCA 40
JJ v R [2020] NSWCCA 165
Kliendienst v R [2020] NSWCCA 98
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120
R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184
Regina v Baker [2000] NSWCCA 85
Regina v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115

Category: Principal judgment
Parties: Benjamin John Harkin – Applicant
Regina – Respondent Crown
Representation:
Counsel:
P Segal – Applicant
B Hatfield – Respondent Crown
Solicitors:
Brock Partners – Applicant
Solicitor for Public Prosecutions NSW – Respondent Crown

File Number(s): 2018/323360
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 August 2019

Before:

Priestley SC DCJ

File Number(s):

2018/323360

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant was committed for sentence on 16 May 2019 for two offences which were both committed in the early hours of the morning on 21 October 2018:

reckless wounding causing grievous bodily harm committed in company, contrary to s 35(3) of the Crimes Act 1900 (NSW) (Crimes Act) for which the maximum penalty is imprisonment for 10 years and which has a standard non-parole period of 4 years; and
affray, contrary to s 93C(1) of the Crimes Act for which the maximum penalty is 10…

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.

Continue reading Harkin v The Queen

Details

AGLC: Harkin v The Queen [2020] NSWCCA 242
Case: [2020] NSWCCA 242
Decision Date: 30 September 2020

CaseChat Overview and Summary

The case of Harkin v The Queen involves an appeal against the sentencing of the applicant, Harkin, who was convicted of multiple offences including reckless wounding causing grievous bodily harm and affray. The appeal was heard in the New South Wales Court of Criminal Appeal, where the applicant challenged the severity of the sentences imposed, arguing that they were manifestly excessive and failed to adequately consider his mental health, disadvantaged early life, remorse, and provocation. The appeal was dismissed, with the court finding that the original sentencing judge had properly considered all relevant factors and applied the appropriate legal principles.

The legal issues before the court were whether the primary judge had taken into account the reduced moral culpability of the applicant due to his mental health, whether proper regard was had to the applicant's disadvantaged early life, and whether the principles of remorse and provocation were adequately considered. The court also had to determine if the totality principle was properly applied and if the sentence was manifestly excessive. The applicant argued that his mental health and difficult upbringing warranted a more lenient sentence, and that the totality principle required the cumulative effect of the sentences to be taken into account.

The court of appeal found that the original sentencing judge had correctly considered the applicant's mental health and disadvantaged early life, and had properly assessed the principles of remorse and provocation. The court held that the totality principle was appropriately applied and that the sentence was not manifestly excessive. The appeal was dismissed as the court found no error in the original sentencing decision.

The court ordered that the appeal be dismissed and the original sentences be upheld. The court did not grant any relief to the applicant and confirmed the validity of the sentences imposed by the primary judge.

Orders