R v Harris

Case [2015] NSWCCA 81


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v Harris [2015] NSWCCA 81
Hearing dates:16 April 2015
Decision date: 01 May 2015
Before: Basten JA at [1]
R A Hulme J at [2]
Adamson J [3]
Decision:

(1) Appeal allowed.

(2) Quash the sentences imposed by Wells DCJ on 19 August 2014 and, in lieu thereof, sentence the respondent to an aggregate term of 7 years 6 months with a non-parole period of 5 years 6 months to commence on 15 August 2013. The earliest date on which the respondent will be eligible for release is 14 February 2019.
Catchwords: CRIMINAL LAW – Crown appeal against sentence – s 5D Criminal Appeal Act 1912 (NSW) – dangerous driving causing death of three people and grievous bodily harm to a fourth – decision to drive while affected by drugs which tended to induce epileptic fit – extent to which long-standing frontal lobe injury affected judgment – whether individual or total sentences manifestly inadequate – relevance of guideline judgment in R v Whyte [2002] NSWCCA 343 – Crown discharged onus of establishing that residual discretion ought not be exercised
Legislation Cited: Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c), 154A(1)(a)
Criminal Appeal Act 1912 (NSW), s 5D(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 37A
Drug Misuse and Trafficking Act 1985 (NSW), s 12(1)
Cases Cited: CMB v Attorney-General (NSW) [2015] HCA 9
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Georgopolous v R [2010] NSWCCA 246
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
Khoury v R [2011] NSWCCA 118
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Campbell [2014] NSWCCA 102
R v Dodd (1991) 57 A Crim R 349
R v Geddes (1936) 36 SR (NSW) 554
R v Gillett [2006] NSWCCA 370
R v Hernando [2002] NSWCCA 489
R v Sivell [2009] NSWCCA 286
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465
Category:Principal judgment
Parties: Regina (Applicant)
Malcolm Harris (Respondent)
Representation:

Counsel:
P Ingram SC (Crown)
T Gartelmann (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid New South Wales (Respondent)
File Number(s):2013/173265
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
19 August 2014
Before:
Wells DCJ
File Number(s):
2013/173265

Judgment

  1. BASTEN JA: I agree with Adamson J.

  2. R A HULME J: I agree with Adamson J.

  3. ADAMSON J: The Crown appealed pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against sentences imposed on the respondent by Wells DCJ in the District Court at Lismore on 19 August 2014. The respondent pleaded guilty to four charges which arose from a collision at Stratheden on 4 June 2013. His plea was first entered in the Lismore Local Court on…

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R v Harris [2015] NSWCCA 81
Case
[2015] NSWCCA 81
Decision Date

CaseChat Overview and Summary

In the case of R v Harris, the defendant was convicted of dangerous driving causing the death of three individuals and grievous bodily harm to a fourth. The appeal was brought by the Crown against the sentence imposed on the defendant, pursuant to section 5D of the Criminal Appeal Act 1912 (NSW). The central issues before the court involved the extent to which the defendant's long-standing frontal lobe injury affected his judgment and decision-making capacity at the time of the offence. The court was also required to determine whether the sentences imposed were individually or collectively manifestly inadequate.

The court considered the nature of the offence, the circumstances leading to the incident, and the impact of the defendant's pre-existing medical condition on his actions. In reaching its decision, the court examined the guideline judgment in R v Whyte, where it was held that in cases of dangerous driving causing death, a significant departure from the relevant guideline range of sentence may be warranted. The court found that the Crown had discharged its onus of establishing that the residual discretion of the court ought not to be exercised. The court concluded that the sentences imposed were manifestly inadequate and increased the sentences accordingly.

The final orders of the court were that the original sentences imposed on the defendant were set aside, and new sentences were imposed, reflecting the court's determination that the original sentences were manifestly inadequate. The defendant's appeal against sentence was thus dismissed, and the sentences were increased to reflect the gravity of the offence and the need for general and specific deterrence.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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