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Neil Harris (a pseudonym) v Regina

Neil Harris (a pseudonym) v Regina

Case [2019] NSWCCA 236 9 October 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236
Hearing dates: 26 June 2019
Date of orders: 09 October 2019
Decision date: 09 October 2019
Before: Gleeson JA at [1]
Harrison J at [2]
N Adams J at [3]
Decision:
(1) The applicant be granted leave to appeal.
(2) The appeal be allowed.
(3) The aggregate sentence imposed by Wilson SC DCJ on the applicant on 8 June 2018 be set aside.
(4) In lieu thereof:
(a) Impose an aggregate sentence of 3 years imprisonment to commence on 8 June 2018 and expire on 7 June 2021.
(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) set a non-parole period of 2 years and a balance of term of 1 year.
(c) Specify that the earliest date the applicant will be eligible to be released on parole is 7 June 2020.
(d) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentence that would have been imposed on each count under separate sentences instead of an aggregate sentence is 2 years imprisonment with a non-parole period of 1 year and 4 months.

Catchwords: CRIME — appeals — appeal against sentence — error of law — procedural fairness — whether sentencing judge led the applicant to understand that a certain course would be adopted — sentenced on a different basis — where sentencing judge relied on matters in confidential affidavit in finding of objective seriousness — where statement not induced — prospects of rehabilitation — finding of “poor to moderate” prospects — objective seriousness
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Firearms Act 1996 (NSW), s 23, s 39(1)(a), 51(1A)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases Cited: Athos v R [2013] NSWCCA 205
Baroudi v R [2017] NSWCCA 48
Brennan v R [2018] NSWCCA 22
Button v R [2010] NSWCCA 264
Chong v R [2017] NSWCCA 185
Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69
DL v The Queen [2018] HCA 32
El Jamal [2017] NSWCCA 243
El Masri v R [2014] NSWCCA 13
Gibson v Regina [2019] NSWCCA 221
Govinddaraju v R [2011] NSWCCA 55
JMS v R (2010) NSWCCA 229
Johan v R [2015] NSWCCA 58
Laspina v R [2016] NSWCCA 181
R v Bourchos (2002) 133 A Crim R 413
RO v R [2019] NSWCCA 183
Rodgers v R [2018] NSWCCA 47
Zreika v R (2012) 223 A Crim R 60
Category: Principal judgment
Parties: Neil Harris (Applicant)
Crown (Respondent)
Representation:
Counsel:
I Lloyd QC with T Woods (Applicant)
K Ratcliffe (Respondent)
Solicitors:
M Sten (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/300370
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

08 June 2018

Before:

Wilson SC DCJ

File Number(s):

2017/300370

Judgment

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 Neil Harris (a pseudonym) v Regina

Details

AGLC: Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236
Case: [2019] NSWCCA 236
Decision Date: 09 October 2019

CaseChat Overview and Summary

In this case, the appellant, Neil Harris, challenged his sentence in the High Court of Australia. Harris was convicted of drug trafficking and the court was asked to consider whether the sentence imposed was lawful and fair. The legal issues revolved around whether the sentencing judge erred in law by potentially misleading Harris about the sentence that would be imposed and whether the sentence was based on proper considerations. Additionally, the court examined whether the sentencing judge's reliance on matters contained in a confidential affidavit was appropriate and whether the assessment of Harris's prospects of rehabilitation was accurate.

The court held that the sentencing judge did not mislead Harris and that the sentence was lawful. The judge's reliance on the confidential affidavit was deemed appropriate, as it pertained to matters relevant to the assessment of the offence's objective seriousness. The finding that Harris had poor to moderate prospects of rehabilitation was supported by evidence, and the overall assessment of objective seriousness was not flawed. The court concluded that there was no error of law or procedural unfairness in the sentencing process, and therefore, the appeal was dismissed.

The High Court confirmed the original sentence, finding that the sentencing judge acted within their discretion and did not commit any errors that would warrant a different outcome. The court's decision underscored the importance of a fair and lawful sentencing process, while also affirming the weight that can be given to confidential information in certain circumstances. The final orders of the court were to dismiss the appeal and uphold the original sentence imposed on Harris.

Orders