SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
The Queen v Harrington
Citation:
[2016] ACTCA 10
Hearing Date:
10 August 2015
DecisionDate:
22 April 2016
Before:
Murrell CJ, Refshauge ACJ and Gilmour J
Decision:
1) The appeal is upheld.
2) The sentences imposed on 13 November 2014 are set aside.
3) John Phillip Harrington be re-sentenced as follows:
a. for the offence of attempting to possess a marketable quantity of cocaine, to imprisonment for 7 years, to commence on 13 February 2014.
b. for the offence of trafficking in cocaine, to imprisonment for 1 year and 6 months, to commence on 13 August 2020, that is to be concurrent as to 6 months with the sentence in respect of the conviction for attempting to possess a marketable quantity of cocaine.
4) The total sentence is of 8 years imprisonment, to commence on 13 February 2014 and expire on 12 February 2022.
5) A non parole period of 4 years and 6 months is set, to commence on 13 February 2014 and expire on 12 August 2018.
Catchwords:
APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – wholly concurrent sentences – totality – distinct acts of criminality
APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – manifestly inadequate – objective seriousness – principal of criminal operation – discount for prior good character – no ‘first time offender’ discount – sentencing range – offending not uncharacteristic
APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – manifestly inadequate – sentencing principles following guilty plea – discount for ‘utilitarian value’ – Cameron v The Queen (2002) 209 CLR 339 – no demonstration of willingness to facilitate course of justice – Commonwealth sentencing practices – application of state sentencing principles in Commonwealth proceedings – general sentencing principles applicable to Commonwealth sentences –
APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – manifestly inadequate – sentence did not reflect seriousness of conduct – consistency in sentencing – current sentencing practices – comparable cases – disparity between sentence imposed and relevant sentences
APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – court retains residual discretion – discretion not exercised
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trafficking controlled drugs – possessing marketable quantities of unlawfully imported border controlled drugs
[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
AGLC
R v Harrington [2016] ACTCA 10
Case
[2016] ACTCA 10
Decision Date
CaseChat Overview and Summary
This matter concerned a Crown appeal against sentences imposed on John Phillip Harrington by a sentencing judge. The appeal concerned the adequacy of sentences for offences relating to the trafficking and possession of controlled drugs, specifically cocaine.
The central legal issues before the court were whether the sentences imposed were manifestly inadequate, failing to reflect the objective seriousness of the offending conduct, and whether the sentencing judge had properly applied established sentencing principles. This included considerations of the totality principle, the appropriate discount for a guilty plea, and the application of state sentencing principles within Commonwealth proceedings. The court also considered the relevance of comparable cases and current sentencing practices.
The Court of Appeal found that the original sentences were manifestly inadequate. It reasoned that the sentencing judge had erred in the application of discounts for the guilty plea, noting that there was no demonstration of a willingness to facilitate the course of justice beyond the utilitarian value of the plea itself. The court also found that the sentences did not adequately reflect the objective seriousness of the offences, particularly in light of current sentencing practices and comparable cases. The court determined that a higher sentence was warranted to achieve consistency and properly reflect the gravity of the criminal conduct.
Consequently, the appeal was upheld, and the original sentences were set aside. John Phillip Harrington was re-sentenced to 7 years imprisonment for attempting to possess a marketable quantity of cocaine, commencing on 13 February 2014, and 1 year and 6 months imprisonment for trafficking in cocaine, to commence on 13 August 2020, with 6 months to be served concurrently with the first sentence. The total sentence was fixed at 8 years imprisonment, with a non-parole period of 4 years and 6 months.
Orders
Orders of the court
1) The appeal is upheld.
2) The sentences imposed on 13 November 2014 are set aside.
3) John Phillip Harrington be re-sentenced as follows:
a. for the offence of attempting to possess a marketable quantity of cocaine, to imprisonment for 7 years, to commence on 13 February 2014.
b. for the offence of trafficking in cocaine, to imprisonment for 1 year and 6 months, to commence on 13 August 2020, that is to be concurrent as to 6 months with the sentence in respect of the conviction for attempting to possess a marketable quantity of cocaine.
4) The total sentence is of 8 years imprisonment, to commence on 13 February 2014 and expire on 12 February 2022.
5) A non parole period of 4 years and 6 months is set, to commence on 13 February 2014 and expire on 12 August 2018.