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Harris v The Queen

Harris v The Queen

Case [2013] NSWCCA 296 26 November 2013

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Court of Criminal Appeal

New South Wales

Case Title: Harris v R

Medium Neutral Citation: [2013] NSWCCA 296

Hearing Date(s): 16 October 2013

Decision Date: 26 November 2013

Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Bellew J [3]

Decision:
(i) the application for extension of time in which to seek leave to appeal against sentence is granted;
(ii) leave to appeal against sentence is granted;
(iii) the appeal is allowed;
(iv) the sentence imposed in respect of count 1 is quashed, and in lieu thereof a non-parole period of 2 years and 10 months, commencing on 11 July 2010 and expiring on 10 May 2013, with an additional term of 11 months expiring on 10 April 2014, is imposed;
(v) the sentence imposed in respect of count 2 is quashed, and in lieu thereof a non-parole period of 4 years, commencing on 11 October 2010 and expiring on 10 October 2014, with an additional term of 3 years expiring on 10 October 2017, is imposed;
(vi) the sentence imposed in respect of count 3 is quashed, and in lieu thereof a non-parole period of 9 months commencing on 11 October 2009, and expiring on 10 July 2010, with an additional term of 9 months expiring on 10 April 2011, is imposed;
(vii) the sentence imposed in respect of count 4 is quashed and in lieu thereof a non-parole period of 12 months commencing on 11 April 2007 and expiring on 10 April 2008, with an additional term of 6 months expiring on 10 October 2008, is imposed;
(viii) the sentence in respect of count 5 is quashed and in lieu thereof, having taken into account the matters on the Form 1 signed by the applicant on 7 February 2008, a non-parole period of 18 months commencing on 11 April 2008 and expiring on 10 October 2009, with an additional term of 18 months expiring on 10 April 2011, is imposed;
(ix) the applicant is sentenced to an overall non-parole period of 7 years and 6 months, commencing on 11 April 2007 and expiring on 10 October 2014, with an additional term of 3 years expiring on 10 October 2017;
(x) the applicant will be eligible for release on parole on 10 October 2014 and his sentence will expire on 10 October 2017.

Catchwords: CRIMINAL LAW - appeal - application for extension of time in which to seek leave to appeal based upon Muldrock error - principles to be applied in determining application for extension of time - error established - applicant re-sentenced

CRIMINAL LAW - appeal - where sentencing judge cited incorrect standard non-parole period - error established - applicant re-sentenced

CRIMINAL LAW - appeal - where starting point of the sentence imposed exceeded maximum penalty - error established - applicant re-sentenced

Legislation Cited: Crimes Act 1900 NSW
Crimes (Sentencing Procedure) Act 1999 NSW
Crimes (Sentencing Procedure) Amendment Act 2007 NSW

Cases Cited: Abdul v R [2013] NSWCCA 247
Aldous v R [2012] NSWCCA 153
Aslett…

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 [2013] NSWCCA 296
Case: [2013] NSWCCA 296
Decision Date: 26 November 2013

CaseChat Overview and Summary

The case of Harris v The Queen involved the applicant, Harris, appealing against his sentence. Harris had been convicted of a serious criminal offence and was sentenced by a lower court. The central dispute in this case was whether Harris's sentence was legally valid and whether he should be re-sentenced due to errors in the application of sentencing principles. The appeal was heard by the High Court of Australia.

The primary legal issue before the court was whether the applicant was entitled to an extension of time to seek leave to appeal based on an error identified as a Muldrock error. The court also needed to determine whether the sentencing judge had cited the incorrect standard non-parole period and if the starting point of the sentence imposed exceeded the maximum penalty. These issues were critical in assessing the legality and fairness of the original sentencing process.

The court examined the principles governing extensions of time for appeals and found that the applicant had indeed identified a Muldrock error. The court held that such errors warranted an extension of time. Furthermore, the court established that the sentencing judge had misapplied the standard non-parole period and that the starting point of the sentence imposed was in excess of the maximum penalty permitted by law. Consequently, the court concluded that Harris should be re-sentenced to rectify these errors.

The final orders of the court were that Harris should be re-sentenced by the sentencing judge, taking into account the correct legal principles and ensuring that the sentence did not exceed the maximum penalty. The court's decision underscored the importance of accurate sentencing procedures and the need to rectify errors that could lead to unjust outcomes.

Orders