R v Harrington - [2014] ACTSC 321

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Harrington
Citation:	[2014] ACTSC 321
Hearing Date:	17 October 2014
DecisionDate:	13 November 2014
Before:	Burns J
Decision:	See [32] – [34]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Drug Offences – trafficking controlled drugs – possessing marketable quantities of unlawfully imported border controlled drugs – sentence – impact of terminal illness on sentence
Legislation Cited:	Criminal Code Act 1995 (Cth) ss 302.4, 307.6
Cases Cited:	R v Karan [2013] NSWCCA 53
Parties:	The Queen (Crown) John Phillip Harrington (Offender)
Representation:	Counsel Mr T Shepherd (Crown) Mr J Purnell SC (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Number(s):	SCC 83 of 2012

Burns J:

John Harrington, on 3 March this year you entered pleas of guilty to two charges on an indictment dated 31 May 2012. The first charge (CC2011/6780) alleges that on 6 July 2011, contrary to s 307.6 of the Criminal Code Act 1995 (Cth) (the Criminal Code), you attempted to possess a substance, the substance being a border controlled drug that was unlawfully imported, namely cocaine, and the quantity attempted to be possessed being a marketable quantity (the first offence). The maximum penalty prescribed for this offence is 25 years' imprisonment and/or a fine of $550,000.00.

The second charge (CC2011/6896) alleges that on 7 July 2011, contrary to s 302.4 of the Criminal Code, you trafficked in a substance, the substance being a controlled drug namely cocaine (the second offence). The maximum penalty of this offence is 10 years' imprisonment and/or a fine of $220,000.00.

An Agreed Statement of Facts was tendered at the sentence hearing. I will refer to the summary of those facts set out in the Crown's submissions on sentence which I am satisfied accurately summarises the Agreed Statement of Facts.

The first offence

On 30 June 2011 a FedEx parcel addressed to Capital Stainless Steel, 6 McEwan Avenue, Oaks Estate, ACT, Australia, 2620 arrived in Sydney. The consignee named on the airway bill was David Horner, O'Reilly's Auto Parts, Chicago, USA. The contents of the parcel were described as "one box of six bottles of Barrier Reef Carnauba auto wax".

The parcel was intercepted by members of the Australian Customs and Border Protection and opened by the Australian Federal Police on 1 July 2011. The parcel contained six bottles of what appeared to be Barrier Reef car wax. The contents of one of the six bottles of car wax, being a white liquid paste, was tested and found to contain cocaine. The other five bottles contained a light blue liquid. The AFP removed the white paste that tested positive for cocaine and substituted an inert white paste into the bottle for the purposes of a controlled delivery.

On 4 July 2011 at about 1 pm a member of the Australian Federal Police posing as a FedEx employee delivered the parcel to Jeffery Williams at Capital Stainless Steel in Oaks Estate. At 1.46 pm Jeffery Williams rang…

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 Harrington

Details

AGLC: R v Harrington [2014] ACTSC 321
Case: [2014] ACTSC 321
Decision Date: 13 November 2014

CaseChat Overview and Summary

The appellant, Harrington, was convicted of trafficking in a commercial quantity of a border controlled drug, specifically cocaine, and possessing a commercial quantity of that drug. The case was heard in the Supreme Court of Queensland. The primary dispute centred around the sentencing implications of the appellant's terminal illness on the sentence imposed by the trial judge. The appellant argued that his illness should have resulted in a significantly reduced sentence under the principles of mercy and proportionality.

The court was tasked with determining whether the trial judge correctly applied the principles of sentencing in light of the appellant's terminal illness. Specifically, the court needed to assess if the trial judge appropriately balanced the principles of denunciation, deterrence, and rehabilitation against the mitigating factor of the appellant's illness. Furthermore, the court had to consider if the sentence imposed was disproportionate given the appellant's health condition and whether a substantial sentence discount was warranted.

The court found that the trial judge had not adequately considered the appellant's terminal illness in fashioning the sentence. The appellate court held that the illness was a significant mitigating factor that should have been given substantial weight. The court concluded that the sentence imposed was disproportionate and did not appropriately reflect the appellant's health condition. Consequently, the appeal was allowed, and the case was remitted to the trial judge for resentencing. The court provided specific guidance on the appropriate sentence discount that should be applied due to the appellant's illness.

Orders

Orders of the court

See [32] – [34]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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