Harris v R - [2005] NSWCCA 204

CITATION:
R v Harris [2005] NSWCCA 204

HEARING DATE(S): 1 June 2005

JUDGMENT DATE:

1 June 2005

JUDGMENT OF:
Studdert J at 1; Howie J at 17; Latham J at 18

DECISION:
Leave to appeal granted; appeal dismissed.

LEGISLATION CITED:

Crimes Act, s 97
Crimes (Sentencing Procedure) Act

CASES CITED:
R v Henry (1999) 46 NSWLR 346

PARTIES:
Regina v Wayne John Harris

FILE NUMBER(S):
CCA 2005/524

COUNSEL:
V. Lydiard (Crown)
L. Flannery (Appellant)

SOLICITORS:
S. Kavanagh (Crown)
S.E. O'Connor (Appellant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/1200; 03/11/1199

LOWER COURT JUDICIAL OFFICER:
Kinchington DCJ

2005/524

STUDDERT J
HOWIE J
LATHAM J
Wednesday 1 June 2005

REGINA v WAYNE JOHN HARRIS

Judgment

1 STUDDERT J: On 27 August 2004 the applicant, Wayne John Harris, was sentenced in respect of two charges of armed robbery. When sentencing the applicant for the later of the offences, the sentencing judge, as requested, took into account a further offence scheduled under the Crimes (Sentencing Procedure) Act.

2 The sentence imposed for the second offence charged was partially accumulated on the sentence imposed for the earlier offence. The earlier offence attracted a fixed term sentence of three years six months to commence on 26 June 2003 and to expire on 25 December 2006. The later offence, taking into account the matter on the Form 1, attracted a non parole period of three years to date from 25 September 2004 and to expire on 25 September 2007, and a total term of five years to expire on 25 September 2009.

3 The applicant seeks leave to appeal against the sentences imposed.

4 The offence of armed robbery is one for which s 97 of the Crimes Act provides a maximum penalty of twenty years imprisonment.

5 The sentencing judge was provided with a statement of agreed facts. His Honour set these out at pp 1 and 2 of the remarks on sentence:

“As to the first charge, at about 3.30pm on 25 June 2003 a male person armed with two long bladed kitchen knives entered the ANZ bank at Epping. That person ordered the customers to lay on the floor and demanded money from two tellers who were in that bank. He also threatened to stab a customer by the name of Chopra. The robber wore a balaclava and sunglasses. He was dressed in a grey sweatshirt with a Puma logo across his chest. Black tracksuit pants and light coloured running shoes with black laces. As a result of his demands the robber was given $867 and fled from the bank.

As to the second offence, which relates to the events of 26 June 2003. A male entered the Turramurra Pharmacy at about 3pm. He demanded money and prescription drugs, Valium and Serapax from a sales assistant and was given approximately $1,000 in cash and a quantity of drugs in white yellow and blue boxes. That person wore wrap-around sunglasses and a Puma top. That man was seen to run from the pharmacy…

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 Harris v R

Details

AGLC: R v Harris [2005] NSWCCA 204
Case: [2005] NSWCCA 204
Decision Date: 1 June 2005

CaseChat Overview and Summary

In Regina v Wayne John Harris, the Court of Criminal Appeal was asked to review the sentences imposed by the sentencing judge for two armed robberies. The applicant, Wayne John Harris, was sentenced to a fixed term of three years and six months for the first offence, with an additional three-year non-parole period and a total term of five years for the second offence. Harris sought leave to appeal against these sentences, arguing that they were manifestly excessive. The Court of Criminal Appeal was required to determine whether the sentences imposed were appropriate, particularly in light of the subjective factors considered by the sentencing judge.

The Court examined the objective criminality of the offences, which was high due to the use of weapons and the nature of the robberies. The Court also considered the discount applied for the pleas entered by Harris, which reduced the starting point for the second offence to six years and eight months. Despite the submissions that the sentences were excessive, the Court found no error in the approach taken by the sentencing judge. The fixed term for the first offence was within the range indicated in relevant precedent, and the non-parole period and total term for the second offence were also within the sentencing range available. The Court concluded that the sentences reflected the seriousness of the offences and the need for general and specific deterrence.

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The judges agreed that the sentences imposed were not manifestly excessive and were within the appropriate sentencing range. The orders of the Court were to dismiss the appeal, maintaining the sentences as imposed by the sentencing judge.

Orders