Harris v R

Case [2021] NSWCCA 322


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Harris v R [2021] NSWCCA 322
Hearing dates: 24 November 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Before: 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.

(b) Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:

(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

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Abbas & Ors v R (2013) 31 A Crim R 413; [2013] NSWCCA 115

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Christopher Ross v R [2019] NSWCCA 314

Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Dungay v R [2020] NSWCCA 209

Edwards v R [2021] NSWCCA 57

Hoskins v R [2007] NSWCCA 169

Legge v R [2007] NSWCCA 244

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Nasrallah v R [2021] NSWCCA 207

Obeid v R (2017) 6 NSWLR 155; [2017] NSWCCA 221

Pearce v The Queen (1998) 194 CLR 610; [1994] HCA 57

R v Fernando (1992) 76 A Crim R 58

R v Henry (1999) 46 NSWLR 346; [1999 NSWCCA 111

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Murchie (1999) 108 A Crim R 482; [1999] NSWCCA 424

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Whyte (2002) NSWLR 252; [2002] NSWCCA 343

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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