Harre v The King - [2024] VSCA 278

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0138

BRENDON HARRE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2024
DATE OF JUDGMENT:	21 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 278
JUDGMENT APPEALED FROM:	DPP v Harre [2023] VCC 1178 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Stalking and perjury – Total effective sentence of 5 years and 6 months’ imprisonment with 3 years and 6 months non-parole – Whether sentence manifestly excessive – Stalking persistent and sadistic involving two victims – Perjury used to obtain an intervention order against an innocent victim – Leave to appeal refused.

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Counsel
Applicant:		Mr PJ Smallwood and Mr JD Cleveland
Respondent:		Mr J Lewis
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

The applicant, now aged, 42 years,[1] pleaded guilty before a judge in the County Court to an indictment containing two charges of stalking[2] (charges 1 and 2) and one charge of perjury[3] (charge 3); and to two summary offences, possessing explosive fireworks[4] (summary charge 12) and possessing a prohibited weapon[5] (summary charge 13).
[1]His date of birth is 6 November 1982.
[2]Crimes Act 1958, s 21A. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 314. The maximum penalty is 15 years’ imprisonment.
[4]Dangerous Goods (Explosives) Regulations 2011, r 20(a). The maximum penalty is 100 penalty units.
[5]Control of Weapons Act 1990, s 5AA. The maximum penalty is 240 penalty units or two years’ imprisonment.
Following a plea in mitigation conducted on 1 March 2023, the judge sentenced the applicant on 10 July 2023 to a total effective sentence of five years and six months’ imprisonment, with a non-parole period of three years and six months, in accordance with the following table:

Charge

Offence

Sentence

Cumulation

1

Stalking

3 years

Base

2

Stalking

3 years

18 months

3

Perjury

2 years

12 months

Related summary offences:

12

Possess explosive fireworks

$100

NA

13

Possess prohibited weapon

Convicted and discharged

NA

Total effective sentence:

5 years and 6 months’ imprisonment

Non-parole period:

3 years and 6 months

Section 6AAA declaration:

7 years’ imprisonment with 5 years non-parole

Other orders:

Disposal order for fireworks and weapon

The applicant now seeks leave to appeal against the sentence on a single ground that contends that the individual sentences imposed on charges 1, 2 and 3; the orders for cumulation imposed on charges 2 and 3; the resulting total effective sentence; and the non-parole period, are manifestly excessive.
In our view, leave to appeal should be refused. Our reasons follow.

The offending

Stalking: charges 1 and 2

Significantly, the stalking embraced by charges 1 and 2, which involved two individuals, ‘DA’ and ‘EW’, extended over a protracted period of 11 months, between 2 July 2020 and 2 June 2021. In the course of her sentencing remarks, the judge…

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 Harre v The King

Details

AGLC: Harre v The King [2024] VSCA 278
Case: [2024] VSCA 278
Decision Date: 21 November 2024

CaseChat Overview and Summary

The respondent, Harre, was convicted of stalking two individuals and perjury in relation to obtaining an intervention order against an innocent person. Harre appealed against his sentence of five years and six months imprisonment with a non-parole period of three years and six months. The appeal was heard in the High Court of Australia. The primary issue was whether the sentence imposed was manifestly excessive given the nature and circumstances of the offences.

The court examined the severity and persistence of the stalking offences, which involved a pattern of conduct that was both persistent and sadistic. The court also considered the use of perjury to obtain an intervention order against an innocent victim. The court emphasised the importance of deterrence and denunciation in sentencing, particularly given the impact of the offences on the victims. The court concluded that the sentence was not manifestly excessive, taking into account the cumulative effect of the offences and the need to protect the community.

The court rejected Harre’s appeal, affirming the sentence imposed by the lower court. The decision underscores the need for courts to carefully consider the totality of the offending behaviour, the impact on victims, and the principles of sentencing in reaching a just outcome. The appeal was dismissed, and the original sentence stands.

Orders