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Harris v The Queen

Harris v The Queen

Case [2017] NSWCCA 254 1 November 2017

Aggravated Break Enter & Commit Serious Indictable Offence

Aggravated Sexual Assault

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Harris v R [2017] NSWCCA 254
Hearing dates: 20 October 2017
Date of orders: 01 November 2017
Decision date: 01 November 2017
Before: Hoeben CJ at CL at [1];
Beech-Jones J at [55];
N Adams J at [56]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – offences of aggravated break enter and commit a serious indictable offence and aggravated sexual assault – 16 years delay between offending and arrest of applicant – delay in sentencing due to failure by applicant to come forward – whether delay properly taken into account by sentencing judge – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss s 61J(1), 112(2), 344A
Criminal Appeal Act 1912 (NSW) – s 6(1)
Cases Cited: Elchiekh v R [2016] NSWCCA 225
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Mill v R [1988] HCA 70; 166 CLR 59
R v EGC [2005] NSWCCA 392
R v Kay [2004] NSWCCA 130
R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Phillip Scott Harris – Applicant
Regina – Respondent Crown
Representation:
Counsel:
S Healy – Applicant
F Veltro – Respondent Crown
Solicitors:
P Ryan – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/245533
Publication restriction: Non-publication order re: identity of complainant
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 June 2016

Before:

English DCJ

File Number(s):

2014/245533

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the Local Court on 9 March 2016 to the following offences:

Count 1 (sequence 8 of the Court Attendance Notice) – Aggravated break, enter and commit serious indictable offence, viz. aggravated robbery, contrary to the Crimes Act 1900 (NSW) s 112(2) for which the maximum penalty applicable at the time was imprisonment for 20 years. There was no standard non-parole period then applicable. The circumstance of aggravation particularised in the charge was that the applicant used corporal violence on the victim.

Count 2 (sequence 1) – Aggravated sexual assault, contrary to the Crimes Act s 61J(1) for which the maximum penalty was imprisonment for 20 years. The circumstance of aggravation was that the applicant occasioned actual bodily harm to the victim.

Form 1 (taken into account on Count 2):

Assault with an act of indecency (sequence 4) contrary to the Crimes Act s 61L for which the maximum penalty was imprisonment for 5 years. This was the first of the sexual offences in time, being pulling down the victim’s pyjama pants, rubbing his hands over her back, buttocks and clothing and saying “You're beautiful. Close your eyes”.
Sexual intercourse without consent (sequence 10) contrary to the Crimes Act s 61I, s 344A, for which the maximum penalty was imprisonment for 14 years. After the attempted sexual intercourse without consent below, and while the victim was…

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 The Queen

Details

AGLC: Harris v The Queen [2017] NSWCCA 254
Case: [2017] NSWCCA 254
Decision Date: 01 November 2017

CaseChat Overview and Summary

The case of Harris v The Queen involved the appellant, who was convicted of aggravated break enter and commit a serious indictable offence and aggravated sexual assault. The appellant had committed these offences 16 years prior and was subsequently arrested and convicted. The appeal focused on the sentence handed down by the sentencing judge, with the appellant arguing that the delay in sentencing was not adequately considered. The High Court of Australia was tasked with determining whether the delay in sentencing was appropriately accounted for by the sentencing judge.

The central legal issue in the appeal was whether the sentencing judge had given insufficient consideration to the 16-year delay between the commission of the offences and the appellant's arrest. The appellant contended that the delay in sentencing was a result of their failure to come forward, and that this factor should have been given greater weight in determining the sentence. The defence argued that the delay in bringing the matter to court warranted a lesser sentence. The Crown, on the other hand, maintained that the delay was appropriately taken into account by the sentencing judge and that the sentence was commensurate with the gravity of the offences.

In dismissing the appeal, the court found that the sentencing judge had adequately considered the delay in sentencing. The court held that the sentencing judge had given appropriate weight to the delay, and that the sentence handed down was just and proportionate to the seriousness of the offences committed. The court found that the appellant's failure to come forward did not warrant a lesser sentence, given the gravity of the offences and the need to uphold public confidence in the criminal justice system. Consequently, the appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the court in light of the dismissal of the appeal. The original sentence of the appellant remained in place, reflecting the court's determination that the sentencing judge had appropriately considered all relevant factors in determining the appropriate punishment.

Orders