Harrold v The Queen - [2021] NSWCCA 88

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Harrold v R [2021] NSWCCA 88
Hearing dates: 09 April 2021
Date of orders: 07 May 2021
Decision date: 07 May 2021
Before: McCallum JA at [1]
Garling J at [2]
Cavanagh J at [88]
Decision:
Refuse leave to appeal

Catchwords:
CRIME – Appeals – leave to appeal against sentence – competence of counsel – whether miscarriage of justice by reason of counsel’s conduct – context of unusual proceeding – no point of general principle

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Firearms Act 1996

Cases Cited:
Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Baroudi v Regina [2007] NSWCCA 48
Button v R [2010] NSWCCA 264
John Wayne Tsiakas v R [2015] NSWCCA 187
Nauer v R [2020] NSWCCA 174
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Parker v DPP (1992) 28 NSWLR 282
Pym v R [2014] NSWCCA 182
R v Abbott (1985) 17 A Crim R 355
Raymond John Munro v Regina [2006] NSWCCA 350
Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Clinton Harrold (Applicant)
The Crown
Representation:
Counsel:
R Rodger (Applicant)
E Balodis (Crown)
Solicitors:
Sydney Criminal Defence Lawyers (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2017/252078
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02/08/2019

Before:

Ellis DCJ

File Number(s):

2017/252078

Judgment

McCALLUM JA: I agree with Garling J. On its face, the conclusion that no miscarriage of justice has been established in circumstances where defence counsel appearing at the proceedings on sentence said almost nothing, and relied on no material in mitigation, may seem surprising. An understanding of the circumstances in which the applicant was sentenced is important in that context. As Garling J has noted, the plea was entered during what was termed a “super call-over”. It is well understood that such arraignments produce a high volume of listings recruiting additional resources with a view to encouraging intensified out-of-court negotiations and so reducing court delays. In the absence of evidence from the applicant, that is enough to explain the seemingly unusual course of the proceedings on sentence in the present case.
GARLING J: Clinton James Harrold (“the applicant”) seeks leave to appeal against a sentence imposed on him on 2 August 2019, in the District Court of Newcastle by Ellis DCJ.

The Sentence

In the circumstances to which I will come, Ellis DCJ imposed an aggregate sentence of 5 years commencing on 15 July 2019 and expiring on 14 July 2024, with a non-parole period of 3 years expiring on 14 July 2022.
His Honour indicated the following sentences:

Count 1 – aggravated robbery – 4 years and 3 months;

Count 2 – possession of prohibited firearm…

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 Harrold v The Queen

Details

AGLC: Harrold v The Queen [2021] NSWCCA 88
Case: [2021] NSWCCA 88
Decision Date: 07 May 2021

CaseChat Overview and Summary

In the case of Harrold v The Queen, the appellant, a convicted criminal, sought leave to appeal against his sentence on the basis that his trial counsel was incompetent, and that this incompetence had resulted in a miscarriage of justice. The appeal was heard by the High Court of Australia. The central issue before the court was whether the appellant's counsel had been so incompetent as to warrant a new trial or appeal, or whether the appellant's claim was so lacking in merit that it could not be considered a miscarriage of justice. The court had to determine whether the appellant's trial counsel had been so ineffective that it had led to a miscarriage of justice, and whether the appellant's claim had any merit. The court held that the appellant's claim did not present a point of general principle or law that required consideration by the High Court. The court found that the appellant's trial counsel had not been incompetent and that there had been no miscarriage of justice. The court also found that the appellant's claim was without merit and that there was no basis for allowing an appeal against sentence. The court dismissed the appeal and refused leave to appeal.

Orders