R v Harrap; R v Moyse - [2021] SASCA 22

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)
R v HARRAP; R v MOYSE
[2021] SASCA 22
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Livesey)
14 April 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY
This is an application by the Director of Public Prosecutions for permission to appeal against the sentences imposed on Mr Harrap and Ms Moyse. Mr Harrap also applies for permission to appeal against his sentences (the cross-appeal).
Mr Harrap pleaded guilty to two counts of deception and one count of conspiracy to improperly exercise power held in public office (the conspiracy). Ms Moyse pleaded guilty to the conspiracy offence.
On 19 and 22 May 2020, Mr Harrap deceived a business administration officer of the Courts Administration Authority, by misrepresenting the identity of the driver of his motor vehicle when it was detected in the commission of traffic offences. Mr Harrap procured the consent of Ms Foulkes, his partner, and Ms Freeman, his clerk, to incur the penalty for each traffic offence. Mr Harrap was on a bond at the time of the offences, and any additional fine would have had the effect of disqualifying him from driving for a period of six months.
Between 10 May and 29 May 2020, Mr Harrap conspired with Ms Moyse, a legal practitioner and mother of his child, to improperly exercise the power Mr Harrap held by virtue of his public office as a Magistrate. The subject of the conspiracy was an administrative appeal by Ms Moyse’s client against the disqualification of a provisional driver’s licence. Ms Moyse secretly consulted Mr Harrap on the application. Mr Harrap offered an assurance that he would hear and grant the application or attempt to influence another Magistrate to grant the application if he could not hear it. Mr Harrap subsequently made arrangements for the matter to be listed before him.
The Judge sentenced Mr Harrap to 12 months’ imprisonment after reduction for his pleas of guilty for each of the deception offences and 19 days’ imprisonment after reduction for the conspiracy offence. The Judge allowed partial concurrences of six months for the deception offences and allowed the conspiracy offences to be served concurrently. Ms Moyse was given a fine of $600 after reduction and no conviction was recorded. The Director appeals on the grounds that the sentences imposed were manifestly inadequate. By cross-appeal, Mr Harrap appeals on the grounds that the sentences imposed were manifestly excessive and that the Judge erred by not suspending them or ordering they be served on home detention.
Held per Kourakis CJ (Lovell and Livesey JJA agreeing) granting permission to appeal in part and allowing the Director’s appeal against Mr Harrap’s sentence:
1.The sentence imposed for the conspiracy offence…

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.

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Details

Case: [2021] SASCA 22
Decision Date: 14 April 2021

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Lovell JA, and Livesey JA, considered appeals by both the Director of Public Prosecutions and Mr Harrap against sentences imposed following Mr Harrap's conviction for conspiracy and deception offences. Ms Moyse also appealed her sentence. The dispute centred on whether the sentences imposed were manifestly inadequate or excessive, and whether the sentencing judge erred in failing to suspend sentences or order home detention for Mr Harrap.

The court was required to determine the adequacy of the sentence imposed on Ms Moyse, and for Mr Harrap, whether the sentences for the conspiracy and deception charges were manifestly inadequate or excessive, respectively. Additionally, the court had to consider whether the sentencing judge erred in refusing to suspend Mr Harrap's sentences or impose home detention, and to resentence Mr Harrap and Ms Moyse if their appeals were successful.

The majority of the court, comprising Kourakis CJ, Lovell JA, and Livesey JA, found that the sentence imposed on Mr Harrap for the conspiracy offence was manifestly inadequate, and the sentence for the deception charges was manifestly excessive. Consequently, these sentences were set aside for resentencing. Mr Harrap's appeal against the conspiracy sentence was refused, while his appeal against the deception sentences was allowed. The Director's appeal against the conspiracy sentence was allowed, but the Director's appeal against the deception sentences was refused. For Ms Moyse, the court found her sentence to be manifestly inadequate, setting it aside for resentencing.

On resentencing Mr Harrap, Lovell JA proposed a total sentence of 21 months imprisonment with a 12-month non-parole period, allowing for a 40 percent reduction for early guilty pleas and concurrency between the deception offences. Kourakis CJ proposed a total sentence of 27 months imprisonment with a 15-month non-parole period, also accounting for early guilty pleas and concurrency. For Ms Moyse, a fine of $6,000 was imposed, representing a 40 percent reduction from $10,000.

Orders

Orders of the court

Held per Kourakis CJ (Lovell and Livesey JJA agreeing) granting permission to appeal in part and allowing the Director’s appeal against Mr Harrap’s sentence:

1. The sentence imposed for the conspiracy offence is manifestly inadequate. The sentence is set aside and Mr Harrap is to be resentenced.

2. The Director’s application for permission to appeal against the sentence imposed for the deception charges is refused.

Held per Kourakis CJ (Lovell and Livesey JJA agreeing) granting permission to appeal and allowing Mr Harrap’s appeal in part:

3. The sentence imposed for the deception charges is manifestly excessive. The sentence is set aside and Mr Harrap is to be resentenced.

4. Mr Harrap’s application for permission to appeal against the sentence imposed for the conspiracy charge is refused.

Held per Lovell JA (Livesey JA agreeing) on resentencing Mr Harrap:

5. But for Mr Harrap’s guilty plea, a sentence of 20 months would have been imposed for the conspiracy offence, eight months for the Foulkes deception offence and 10 months for the Freeman deception offence. A reduction of approximately 40 percent for early guilty pleas is allowed for sentences of 12 months, five months and six months, respectively. A period of two months concurrency is allowed between the deception offences. A final sentence of 21 months imprisonment is imposed with a non-parole period of 12 months to commence on 4 December 2020.

Held per Kourakis CJ on resentencing Mr Harrap:

6. But for Mr Harrap’s guilty plea, a sentence of two years would have been imposed for the conspiracy, 10 months for the Foulkes deception offence and 15 months for the Freeman deception offence. A reduction of approximately 40 percent for early guilty pleas is allowed for sentences of 15 months, six months and nine months, respectively. A period of three months concurrency should be allowed between the deception offences. A final sentence of 27 months’ imprisonment should be imposed with a non-parole period of 15 months to commence on 4 December 2020.

Held per Kourakis CJ (Lovell and Livesey JJA agreeing) granting permission to appeal and allowing the Director’s appeal against Ms Moyse’s sentence:

7. The sentence imposed is manifestly inadequate. The sentence is set aside and Ms Moyse is to be resentenced.

8. Ms Moyse is convicted and a fine of $10,000 reduced by 40 percent to $6,000 is imposed.

Background

Background to the litigation

Mr Harrap also seeks permission to appeal against each of the sentences imposed, and the overall non-parole period fixed with respect to those sentences, on the grounds that:·the sentences are manifestly excessive;·the Judge erred in failing to suspend them; and·in the alternative, the Judge erred in not ordering home detention. Background From 2007 until shortly after the detection of the offences to which Mr Harrap ultimately pleaded guilty, Mr Harrap held judicial office under the Magistrates Act 1983 (SA). Within three years of his appointment Mr Harrap was given supervisory responsibilities as the Regional Manager of the Elizabeth Magistrates Court. For most of the remainder of his time as a Magistrate Mr Harrap served in supervisory positions as the Magistrate in charge of the Criminal Division in the Adelaide Magistrates Court, the Regional Manager of the Magistrates Court at Berri and from May 2019 as the Regional Manager at Christies Beach. The deception offences were committed in the following circumstances. The CAA manages a fleet of government vehicles. Some vehicles are pool vehicles which are available to staff for the performance of their work as, and when, they are needed. Other vehicles are allocated to staff and judicial officers, for work and personal purposes, as part of their remuneration. If a traffic infringement notice is issued with respect to one of those vehicles, a business administration officer of the CAA forwards it to the person to whom the vehicle was allocated at the relevant time. In early 2020, two traffic infringement notices were forwarded to Mr Harrap for speeding offences committed by him with the use of the car allocated to him as part of his remuneration. The first was committed on 24 March 2020 at Verdun (the Verdun offence). The second was committed at Littlehampton on 11 April 2020 (the Littlehampton offence). Mr Harrap, knowing that he was the driver of his vehicle on the occasion of the Verdun offence, nonetheless persuaded Ms Foulkes, who was then his de-facto partner, and a Sergeant of Police, to allow him to nominate her as the driver for the Verdun offence. Mr Harrap, again knowing that he was the driver on the occasion of the Littlehampton offence, nonetheless persuaded Ms Freeman, who was his clerk, to allow him to nominate her as the driver for the Littlehampton offence. Mr Harrap procured from Ms Foulkes and Ms Freeman their licence details for the purposes of his planned deception. Mr Harrap emailed those details to BD nominating Ms Foulkes and Ms Freeman as the drivers of his vehicle on the occasions of the Verdun and Littlehampton offences respectively. In accordance with his usual practice BD swore statutory declarations, in the belief that the information given to him by Mr Harrap was true, identifying Ms Foulkes and Ms Freeman as the drivers of Mr Harrap’s vehicle at the time the offences were detected. Unbeknown to Mr Harrap, the Independent Commission against Corruption (ICAC) had commenced an investigation into him as a result of information it had received. ICAC investigators spoke to Ms Freeman who eventually gave police a statement implicating Mr Harrap in the commission of both offences. ICAC also obtained text messages passing between Mr Harrap and Ms Foulkes, in which Mr Harrap asked Ms Foulkes to take his points, and which showed that she very reluctantly acquiesced to his request.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Judge then gave the following reasons for not suspending the sentence or imposing home detention:I have canvassed in these sentencing remarks all of the relevant considerations which I have taken into account. I repeat that I have taken into account your otherwise unblemished record, your previous good character and your contribution to society. However, I consider that given your position as a judicial officer, your conduct was so egregious and opportunistic, so lacking in judgment and was so serious that good reasons does not exist to suspend your sentence.I turn then to the question whether you are a suitable person to serve this sentence on home detention. I accept the submission of your counsel that you are not a threat to the safety of the community. I turn then to consider the question arising under s.71(2)(a) of the Sentencing Act 2017, whether the making of such an order would or may affect public confidence in the administration of justice. The concept of the administration of justice involves a broad range of considerations. I consider that amongst these your position as a judicial officer is highly substantive. As I have earlier indicated and described, judicial officers are at the pinnacle of the judicial system and so the administration of justice. They obtain that position upon their appointment and upon the making of their oath and having done so, they hold a position of a primacy because they are part of the institution of government. Judicial officers are required to adjust to and to maintain a standard of behaviour that is without reproach having regard to their judicial independence.Your criminal behaviour is completely at odds with your role and all of those considerations. You consciously committed criminal offences and consciously co‑opted Ms Foulkes and Ms Freeman into that behaviour. In relation to Ms Moyse and her client, you consciously ignored the obvious conflict of interest under which you were then labouring.For the same reasons, your criminal behaviour strikes at the very foundation of public confidence in the administration of justice that I am required to consider under the operation of s.71(2)(a) of the Sentencing Act. I consider that the making of a home detention order for those reasons would affect public confidence in the administration of justice in a stark and detrimental way. I further consider that the making of such an order would strike at the foundations of such public confidence in a way that is significant. Consideration of the Harrap appeals This express trust requires judicial officers to fairly and impartially resolve disputes between the citizen and the state and between citizen and citizen. The quality which sustains judicial authority is fidelity.[15] Judicial independence does not mean judicial officers can do as they please; they must comply with their oath. The community requires fidelity from its judicial officers. [15] (Anthony) Murray Gleeson AC, ‘Judicial Legitimacy’ (Speech, Australian Bar Conference, New York, 2 July 2000).