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Harrigan v R

Harrigan v R

Case [2005] NSWCCA 449 15 December 2005

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CITATION:
Harrigan v Regina [2005] NSWCCA 449

HEARING DATE(S): 15/12/2005

JUDGMENT DATE:

15 December 2005

JUDGMENT OF:
Grove J at 52; James J at 1; Simpson J at 53

DECISION:
Extension of time to make application for leave to appeal against sentence granted. Leave to appeal against sentence granted. Appeal dismissed

CATCHWORDS:
CRIMINAL LAW – SENTENCE – guilty pleas - offences of - dangerous driving occasioning grievous bodily harm - doing an act intending to pervert the course of justice – whether the sentencing judge erred in failing to make the sentence for perverting the course of justice offence (either in whole or part) concurrent with the driving offence – totality principle

LEGISLATION CITED:

Crimes Act

CASES CITED:
R v AEM [2002] NSWCCA 58
R v Duong (1999) 109 A Crim R 60
R v Giang [2001] NSWCCA 276
R v Hammoud (2000) 118 A Crim R 66
R v Ruane (1979) 1 A Crim R 284
R v Weldon (2002) 136 A Crim R 55

PARTIES:
Michael Leonard HARRIGAN v Regina

FILE NUMBER(S):
CCA 2005/1486

COUNSEL:
P Lowe - Applicant
P Barnett - Crown

SOLICITORS:
W Whitby - Applicant
S Kavanagh - solicitor for Public Prosecutions

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/21/0299

LOWER COURT JUDICIAL OFFICER:
Tupman DCJ

IN THE COURT OF
CRIMINAL APPEAL

2005/1486

THURSDAY 15 DECEMBER 2005

MICHAEL HARRIGAN v REGINA

JUDGMENT

1 JAMES J: Michael Leonard Harrigan applies for an extension of time in which to apply for leave to appeal and, if an extension of time is granted, for leave to appeal against sentences imposed on him in the District Court on 27 February 2003 by her Honour Judge Tupman for two offences to which he had pleaded guilty.

2 The two offences were:

(1) Dangerous driving occasioning grievous bodily harm to Renee Shields.

(2) Doing an act intending to pervert the course of justice.

3 Dangerous driving occasioning grievous bodily harm is an offence under section 52A(3) of the Crimes Act for which the maximum penalty is imprisonment for seven years. Doing an act intending to pervert the course of justice is an offence under 319 of the Crimes Act for which the maximum penalty is imprisonment for 14 years.

4 For the offence of doing an act intending to pervert the course of justice her Honour imposed a sentence of a fixed term of imprisonment of 18 months commencing on the date of sentencing, 27 February 2003, and expiring on 26 August 2004. For the offence of dangerous driving occasioning grievous bodily harm her Honour imposed a total sentence of four years nine months, consisting of a non-parole period of three years three months commencing on 27 August 2004 and a balance of term of one year and six months. Her Honour accordingly made the sentence for the dangerous driving offence completely cumulative on the sentence for doing an act intending to pervert the course of justice.

5…

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 Harrigan v R

Details

AGLC: Harrigan v Regina [2005] NSWCCA 449
Case: [2005] NSWCCA 449
Decision Date: 15 December 2005

CaseChat Overview and Summary

The appellant, Mr Harrigan, was convicted of two criminal offences: dangerous driving occasioning grievous bodily harm and doing an act intending to pervert the course of justice. The sentencing judge imposed a total effective sentence of eight years' imprisonment. The central issue before the court was whether the sentencing judge erred in not making the sentence for the offence of perverting the course of justice either in whole or part, concurrent with the sentence for the dangerous driving offence. The appellant argued that the totality principle should have mandated concurrent sentencing for both offences.

The court examined the principles of sentencing in relation to concurrent and cumulative sentences, particularly in the context of dangerous driving and perverting the course of justice. The court noted that the totality principle requires that the aggregate sentence should not be excessive having regard to the mischief sought to be achieved by the sentence, and that the sentence should be proportionate to the gravity of the offences and the culpability of the offender. The court also considered the sentencing judge's reasoning, including the gravity of the dangerous driving offence, the appellant's culpability, and the need for deterrence. The court held that the sentencing judge had considered the totality principle and had not erred in imposing a cumulative sentence. The appellate court found that the sentencing judge's decision was consistent with the principles of sentencing and the facts of the case, and dismissed the appeal.

The court's decision confirms that the sentencing judge is entitled to impose a cumulative sentence when considering the totality principle, even in cases where the offences are related and the offender enters guilty pleas. The court's analysis provides guidance for sentencing judges when considering the totality principle in similar cases.

Orders