Simpson J at [1]; Hall J at [131]; Schmidt J at [132]
Decision:
(1) Appeal allowed.
(2) Order (1) of the Orders made by the Land and Environment Court (by which the appellant was convicted of the offence against s 91K(1) of the Water Management Act 2000 (NSW)), is confirmed.
(3) Orders (2)-(7) made by the Land and Environment Court are vacated. In lieu thereof, the following determinations are made:
(a) direct, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that Ronald Norman Harris enter into a good behaviour bond for a period of 2 years;
(b) order, pursuant to s 353G(1)(a) of the Water Management Act 2000, that Ronald Norman Harris, within 28 days of the date of this judgment, at his own expense, publish in either the Riverine Grazier or The Land, a notice in the form attached as Annexure "A" to these orders.
Catchwords:
CRIMINAL LAW - appeal - s 5AB Criminal Appeal Act 1912 (NSW) - sentence - s 91K(1) Water Management Act 2000 (NSW) - multiple grounds pleaded - whether error in primary judge's assessment of objective gravity - whether primary judge erred in construction of s 52 Water Management Act - whether primary judge erred by failing to take into account relevant consideration - error found - Court has jurisdiction to entertain appeal against publication order made under s 353G(1)(a) Water Management Act 2000 - appeal allowed - conviction confirmed - orders (2)-(7) made by Land and Environment Court vacated and orders substituted
Ronald Norman Harris (Appellant) Russell Harrison (Respondent)
Representation:
Counsel: A A Henskens SC/S B Docker…
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.
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Details
AGLC
Harris v Harrison [2014] NSWCCA 84
Case
[2014] NSWCCA 84
Decision Date
CaseChat Overview and Summary
In the matter of Harris v Harrison, the appeal was brought before the NSW Court of Criminal Appeal against a sentence imposed by the Land and Environment Court. The appellant, Harris, had been found guilty under the Water Management Act 2000 (NSW) and sentenced for contravening certain water management provisions. The appellant contested the severity of the sentence and the manner in which the primary judge assessed the objective gravity of the offence. The appeal was also based on the contention that the primary judge misinterpreted the provisions of the Act and neglected to consider a relevant factor during sentencing.
The primary legal issues for the Court to decide were whether the primary judge had erred in assessing the objective gravity of the offence, whether there had been a misinterpretation of the relevant statutory provisions, and whether the primary judge failed to consider a relevant factor. Furthermore, the Court needed to determine if it had jurisdiction to entertain an appeal against the publication order made under the Water Management Act 2000 (NSW). The appellant argued that the primary judge's assessment of the objective gravity was incorrect, that the statutory provisions were misconstrued, and that a relevant factor was not considered during sentencing.
The Court found that the primary judge had erred in the assessment of the objective gravity of the offence, which influenced the sentence imposed. The Court also determined that there was a misinterpretation of the relevant statutory provisions, which affected the outcome of the sentencing. Additionally, the Court found that a relevant consideration was not taken into account by the primary judge. The Court held that it had the jurisdiction to hear the appeal against the publication order made under the Water Management Act 2000 (NSW). Consequently, the appeal was allowed, the conviction was confirmed, and the orders (2)-(7) made by the Land and Environment Court were vacated and substituted with new orders.