Simpson AJA at [1]; Ierace J at [2]; Dhanji J at [3].
Decision:
(1) The applicant be granted an extension of time in which to appeal.
(2) Leave to appeal is granted.
(3) The appeal is allowed.
(4) The sentence imposed on the applicant in the District Court on 22 May 2020 is quashed. In lieu thereof the following aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW):
(a) 3 years and 10 months imprisonment to date from 20 June 2019 and expire on 19 April 2023 with a non-parole period of 2 years and 6 months to expire on 19 December 2021.
(i) Offence H260/8 (taking into account H260/3, H260/4, H260/6 and H260/6 on the Form 1): 3 years and 9 months with a non-parole period of 2 years and 5 months.
(ii) Offence H260/2 on the s166 certificate: 2 months.
Catchwords:
CRIME – appeals – appeal against sentence – aggregate sentence - extension of time in which to appeal – robbery in company – whether sentence manifestly excessive – parity – lessor role – record – Form 1 offence – extension of time granted – appeal granted – appeal allowed – resentenced
[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 R [2021] NSWCCA 322
Case
[2021] NSWCCA 322
Decision Date
CaseChat Overview and Summary
The appellant, Harris, was convicted of robbery in company, and sentenced to imprisonment. Harris appealed against his sentence, arguing that it was manifestly excessive. The appeal against sentence was brought to the court on an application for an extension of time, as it was outside the normal appeal period. The appeal was brought under the statutory provisions allowing for an extension of time in cases where the sentence is manifestly excessive. The court was required to decide whether the sentence was indeed manifestly excessive, and if so, whether an extension of time should be granted to allow for an appeal. The court also had to consider the appellant's role in the offence and his criminal record.
The court found that the sentence was manifestly excessive, taking into account the appellant's lesser role in the offence and his criminal record. The court noted that the sentence was higher than those given in similar cases, and that there was a degree of disparity between the sentences given to the appellant and his co-offenders. The court also found that the appellant's criminal record, which included a previous conviction for a Form 1 offence, was a relevant factor in determining the appropriate sentence. The court granted the application for an extension of time, and allowed the appeal. The appeal was ultimately allowed, and the appellant was re-sentenced.
The court ordered that the appellant be re-sentenced, taking into account the factors identified in the appeal. The court noted that the re-sentencing was not a rehearing of the case, but rather an opportunity to ensure that the sentence was appropriate in all the circumstances. The court emphasised the importance of ensuring that sentences were proportionate and consistent with those given in similar cases. The court's decision highlights the importance of considering all relevant factors when determining an appropriate sentence, and the need for consistency in sentencing.