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Harper v R

Harper v R

Case [2017] NSWCCA 159 5 July 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Harper v R [2017] NSWCCA 159
Hearing dates: 28 June 2017
Decision date: 05 July 2017
Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Garling J at [52]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence - break, enter and commit a serious indictable offence in company whilst armed with a dangerous weapon contrary to s 112(3) of the Crimes Act 1900 –whether sentence manifestly excessive – strong subjective case – sentencing judge found the offence to be “serious” and “below the middle of the range” – contention that judge found substantially below the middle of the range rejected – sentencing statistics of no assistance – no meaningful range to be found in so-called comparable cases – sentence not manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) ss 4(1), 112(3), 195(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A
Cases Cited: Aslett v R [2012] NSWCCA 235
De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32; 249 A Crim R 252
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Baghdadi [2008] NSWCCA 239
R v Campbell [2014] NSWCCA 102
R v Chaaban [2006] NSWCCA 107
R v Cheh [2009] NSWCCA 134
R v Dole; R v Nguyen [2010] NSWCCA 101
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Grant William Harper (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Healy (Applicant)
Ms T Smith (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2014/295949
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

13 May 2016

Before:

Blackmore SC DCJ

File Number(s):

2014/295949

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
R A HULME J: Grant William Harper (“the applicant”) was sentenced by Blackmore SC DCJ in the District Court at Sydney on 13 May 2016 for an offence of break, enter and commit a serious indictable offence (intentionally damage property) in company whilst armed with a dangerous weapon (a stun gun).
His Honour imposed a sentence of imprisonment for 5 years 3 months with a non-parole period of 3 years 3 months dating from 29 April 2016.
The offence is contrary to s 112(3) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 25 years. There is also a standard non-parole period of 7 years.
The applicant had pleaded guilty to the charge on the day his trial was due to commence. His Honour reduced the sentence…

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 Harper v R

Details

AGLC: Harper v The Queen [2017] NSWCCA 159
Case: [2017] NSWCCA 159
Decision Date: 05 July 2017

CaseChat Overview and Summary

The case of Harper v R involves the appellant, Harper, appealing against his sentence imposed for committing a serious indictable offence while armed with a dangerous weapon in company, in contravention of section 112(3) of the Crimes Act 1900. The matter was heard in the court of appeal, with the primary concern being whether the sentence handed down by the sentencing judge was manifestly excessive. Harper argued that the sentence was too harsh, while the Crown maintained that the sentence was appropriate and within the bounds of judicial discretion.

The court was required to determine whether the sentence was manifestly excessive, given the circumstances of the case and the statutory framework governing sentencing. The primary issue was the assessment of the severity of the offence and whether the sentence imposed by the judge was commensurate with the gravity of the crime. The court also had to consider whether the sentencing judge had correctly applied the relevant principles and whether there was a meaningful range of sentences in comparable cases to assist in determining the appropriateness of the sentence.

In examining the matter, the court noted that the sentencing judge had found the offence to be serious and had placed the sentence below the middle of the range, which was an appropriate assessment. The court dismissed Harper's contention that the judge had actually placed the sentence substantially below the middle of the range, finding that this was an incorrect interpretation of the judge's findings. Additionally, the court held that sentencing statistics and comparisons with other cases were of limited utility in this context, as there was no meaningful range to be found in the so-called comparable cases. Ultimately, the court found that the sentence was not manifestly excessive and dismissed the appeal.

As a result of the court's findings, the appeal was dismissed, and the original sentence imposed by the sentencing judge was upheld. The court's decision reinforces the importance of correctly assessing the gravity of an offence and applying the appropriate sentencing principles when determining an appropriate sentence in criminal cases.

Orders