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R v Harradine

R v Harradine

Case [2019] SASCFC 144 15 November 2019

Appeal

Charge

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v HARRADINE
[2019] SASCFC 144
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
15 November 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Crown appeal against sentence
The respondent pleaded guilty and was sentenced in the District Court to multiple charges for offending that occurred on 20 July 2016. The offending involved:
- theft of a car (count 1);
- aggravated assault causing harm (count 2);
- attempted theft of another car (count 3);
- aggravated assault (count 4);
- count 5 was the subject of a nolle prosequi;
- theft of another car (count 6);
- theft of a wallet (count 7);
- theft of another wallet (count 8);
- damaging property, another car (count 9);
- illegal interference with a motor vehicle, another car (count 10);
- throwing a missile, debris at a car (count 11);
- illegal interference with a motor vehicle, another car (count 12);
- theft of another car (count 13);
- aggravated assault (count 14);
- aggravated creating likelihood of harm (count 15);
- aggravated driving dangerously to escape police pursuit (committed for sentence);
- driving under disqualification (committed for sentence).
The respondent was imposed separate sentences for the offences and aggregated the sentences, but applied some concurrency to arrive at an overall sentence of imprisonment for five years and nine months.
The respondent was sentenced under the Sentencing Act 2017 as a serious repeat offender, the sentencing judge being satisfied that he had committed four qualifying offences over three occasions:
1. aggravated theft using force (5 November 2011, for which he had been sentenced at the time);
2. aggravated assault causing harm at 8.20 am on 20 July 2016 (Count 2);
3. aggravated creating likelihood of harm at 11.20 - 11.40 am on 20 July 2016 (Count 15); and
4. aggravated driving dangerously to escape police pursuit at 11.20 - 11.40 am on 20 July 2016 (committed for sentence).
The sentencing Judge found the third and fourth qualifying offences to have occurred on one occasion for the purposes of s 53(1)(b).
The sentencing judge applied s 54(1)(b) which requires a serious repeat offender’s non-parole period to be at least four-fifths of the length of the sentence, to the sentence imposed for aggravated dangerous driving to escape police pursuit on the basis that it was the longest of the three sentences imposed to which the four-fifths rule applied. The non-parole period set for that sentence was one year, eight months and six days, and the non-parole period fixed for the whole of the sentence was three years and two months.

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 R v Harradine

Details

AGLC: R v Harradine [2019] SASCFC 144
Case: [2019] SASCFC 144
Decision Date: 15 November 2019

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the Crown against the sentence imposed on the respondent, Harradine, who had pleaded guilty to a number of offences. The dispute concerned the proper application of sentencing provisions, specifically in relation to the imposition of a single sentence for multiple offences and the factual basis upon which such a sentence should be determined.

The central legal issues before the Court were: firstly, whether the sentencing judge had erred in imposing a single sentence for multiple offences without adequately specifying the factual basis for that sentence; and secondly, whether the sentencing judge had failed to properly consider the relevant sentencing principles and the gravity of the offences when determining the appropriate penalty.

The Court held that while it is permissible to impose a single sentence for multiple offences, this practice requires careful consideration and a clear articulation of the factual basis underpinning the sentence. The sentencing judge must ensure that the sentence reflects the totality of the criminal conduct and that the offender understands the basis upon which they are being punished. In this instance, the Court found that the sentencing judge had not sufficiently explained the factual basis for the single sentence, leading to an appealable error. The Court allowed the Crown's appeal, quashed the original sentence, and remitted the matter for re-sentencing.

Orders