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Harrison v Regina

Harrison v Regina

Case [2006] NSWCCA 185 19 June 2006

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CITATION: HARRISON v. REGINA [2006] NSWCCA 185
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Wednesday 3 May 2006

JUDGMENT DATE:
19 June 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Latham J at 76

DECISION: (1) The applicant be granted leave to appeal. (2) The appeal be allowed, so far as backdating the sentence as follows:- (a) Count 1: the applicant be re-sentenced to a fixed therm of imprisonment for three years to commence on 7 April 2005 and to expire on 6 April 2008; (ii) Count 2: the applicant be re-sentenced to a non-parole period of seven years to commence on 7 April 2007 and to expire on 6 April 2014 and an additional term of two years commencing on 7 April 2014 and expiring on 6 April 2016. (3) The earliest date upon which the applicant will be eligible for release on parole will be 7 April 2014.

CATCHWORDS: Charged with a co-offender of maliciously inflicting actual bodily harm on a female with intent to have sexual intercourse with her contrary to s.61K(a) Crimes Act 1900 (NSW) – charged with a co-offender of knowingly having non-consensual sexual intercourse with another female in circumstances of aggravation contrary to s.61JA(1)(c)(iii), those circumstances being that the applicant and the co-offender had deprived her of her liberty – applicant pleaded guilty to both charges – appeal against severity of sentence imposed – whether trial judge considered both delay and hardship as constituting special circumstances for the purposes of sentencing – whether failure to expressly refer to and consider individual matters going to hardship constitutes appellable error – the decision as to whether special circumstances exist in a particular case is first one of fact and secondly one of judgment – the sentencing judge had given thorough attention to the facts said to support a finding of hardship when determining the appropriate sentence – the absence of an express reference to the statutory ratio does not of itself indicate an intention on the part of a sentencing judge to impose a non-parole period in accordance with the statutory ratio – the sentencing judge must demonstrate that they have taken into account pre-sentence custody – the sentence must be expressed in terms which make plain that pre-sentence custody has been taken into account and how it has been taken into account – the sentences should have been backdated to commence from the date when the applicant was taken into custody – the sentencing judge’s failure to consider matters in mitigation based on equivocal evidence did not result in manifestly excessive sentences

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Edwards (1996) 90 A. Crim. R. 510
R v Bednarz [2000] NSWCCA 533
R v Grbin [2004] NSWCCA 220
R v Simpson (2001) 53 NSWLR 704
R v Cramp [2004] NSWCCA 264
R v Smith [2005] NSWCCA 19
R v Gill

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 Harrison v Regina

Details

AGLC: Harrison v Regina [2006] NSWCCA 185
Case: [2006] NSWCCA 185
Decision Date: 19 June 2006

CaseChat Overview and Summary

In the case of Harrison v Regina, the applicant appealed against the severity of the sentence imposed by the trial judge. The applicant, along with a co-offender, was charged with inflicting actual bodily harm on a female with the intent to have sexual intercourse with her, and with having non-consensual sexual intercourse with another female under aggravated circumstances. The applicant pleaded guilty to both charges. The primary legal issue before the court was whether the trial judge adequately considered both delay and hardship as constituting special circumstances for the purposes of sentencing. Another issue was whether the failure to expressly refer to and consider individual matters going to hardship constituted an error warranting an appeal.

The court determined that the decision as to whether special circumstances exist in a particular case is first a question of fact and then a matter of judgment. The sentencing judge had given thorough attention to the facts that were said to support a finding of hardship when determining the appropriate sentence. The absence of an express reference to the statutory ratio did not, in itself, indicate an intention on the part of the sentencing judge to impose a non-parole period in accordance with the statutory ratio. The court further stated that the sentencing judge must demonstrate that they have taken into account pre-sentence custody, and the sentence must be expressed in terms that make plain how pre-sentence custody has been taken into account. The court found that the sentences should have been backdated to commence from the date when the applicant was taken into custody. The sentencing judge's failure to consider matters in mitigation based on equivocal evidence did not result in manifestly excessive sentences.

The appeal was allowed in part, with the sentences to be backdated to the date of the applicant's custody. The court's reasoning focused on the necessity for explicit consideration of pre-sentence custody and the proper application of statutory ratios in sentencing. The final orders included the backdating of the sentences to the date of the applicant's custody, ensuring that the sentencing process reflected all relevant factors.

Orders