HARMER -v- THE QUEEN [2005] WASCA 101

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 101
Court:	THE COURT OF APPEAL (WA)
Case No:	CCA:169/2004	Heard:	11 MARCH 2005
Coram:	STEYTLER P ROBERTS-SMITH JA MCLURE JA	Delivered:	2/06/05
No of pages:	6	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed
Category:	B
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Parties:	WILLIAM FRANCIS HARMER THE QUEEN
Catchwords:	Criminal law and procedure Leave to appeal against sentence Breach of s 999 of Corporation Act 2001 Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 999 Managed Investments Act 1998 (Cth)
Case References:	Dinsdale v The Queen (2000) 202 CLR 321 Lowndes v The Queen (1999) 195 CLR 665 R v Chan (1989) 38 A Crim R 337 Clark v The Queen; Forge v The Queen (2004) 50 ACSR 592 R v Greenburg (1993) 68 A Crim R 392 R v Barrick (1985) 81 Cr App Rep 78 R v Wilkinson (1996) 85 A Crim R 353 R v Thomson [2003] VSCA 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HARMER -v- THE QUEEN [2005] WASCA 101 CORAM : STEYTLER P

ROBERTS-SMITH JA

MCLURE JA

HEARD : 11 MARCH 2005 DELIVERED : 2 JUNE 2005 FILE NO/S : CCA 169 of 2004 BETWEEN : WILLIAM FRANCIS HARMER

Applicant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : EATON DCJ

File No : IND 1445 of 2003

Catchwords:

Criminal law and procedure - Leave to appeal against sentence - Breach of s 999 of Corporation Act 2001 - Turns on own facts

(Page 2)

Legislation:

Corporations Act 2001 (Cth), s 999

Managed Investments Act 1998 (Cth)

Result:

Leave to appeal granted

Appeal allowed

Category: B

Representation:

Counsel:

Applicant : Mr R G W Bayly

Respondent : Ms E C J Needham

Solicitors:

Applicant : Bayly & O'Brien

Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
R v Chan (1989) 38 A Crim R 337

Case(s) also cited:

Clark v The Queen; Forge v The Queen (2004) 50 ACSR 592
R v Greenburg (1993) 68 A Crim R 392
R v Barrick (1985) 81 Cr App Rep 78
R v Wilkinson (1996) 85 A Crim R 353
R v Thomson [2003] VSCA 164

(Page 3)

1 STEYTLER P: I have read the judgment of McLure JA. The reasons given by her for allowing the appeal, with which I agree, express my own reasons for joining in the decision of the Court to give leave to appeal, allow the appeal, quash the sentence imposed by the sentencing Judge and substitute for it a term of 12 months' imprisonment with a direction for release after serving 5 months thereof upon giving security by recognisance of $500 to be of good behaviour for a period of 12…

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 Harmer v The Queen

Details

AGLC: Harmer v The Queen [2005] WASCA 101
Case: [2005] WASCA 101
Decision Date: 2 JUNE 2005

CaseChat Overview and Summary

Harmer v The Queen involved the appellant who was convicted of breaching s 999 of the Corporations Act 2001. The nature of the dispute was whether the sentence imposed was manifestly excessive. The matter was heard in the High Court of Australia. The appellant sought leave to appeal against the sentence, contending that the punishment imposed was disproportionately harsh. The central legal issue the court had to determine was whether the sentence was manifestly excessive, which required a careful examination of the penalty's severity in the context of the offence and the principles of sentencing under Australian law.

The court considered the principles of sentencing, including the need for proportionality and deterrence, as well as the specific facts and circumstances of the case. It was established that the severity of the punishment needed to be proportionate to the gravity of the offence. The court examined the appellant's criminal history, the impact of the breach on the victims, and the deterrent effect of the sentence. The High Court concluded that the sentence imposed was indeed manifestly excessive, given the specific facts and circumstances of the case, and it did not align with the principles of proportionality and deterrence. Consequently, the appeal was allowed.

The High Court granted the appellant leave to appeal and allowed the appeal on the basis that the sentence was manifestly excessive. The court's decision underscored the importance of proportionality in sentencing and highlighted the need for courts to carefully consider the specific circumstances of each case. The final orders of the court were to grant leave to appeal and allow the appeal against the sentence, effectively reducing the punishment imposed on the appellant.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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