Reasons for Decision of The Honourable Justice Livesey
7 August 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - SENTENCE
The defendant was the father of Kobi Harris. When Kobi was five weeks old he was violently shaken by the defendant on two occasions during the early hours of 22 May 2018. The shaking caused Kobi profound brain damage, rendering him blind and unable to properly breathe or feed. Over time he was unable to swallow efficiently, could only be fed by a nasogastric tube and developed aspiration pneumonia. Kobi died on 8 August 2019 at the age of 16 months.
Initially, the defendant was charged with aggravated recklessly causing serious harm contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) to which he pleaded guilty. On 19 July 2019 he was sentenced by the District Court to imprisonment for four years, which took into account a 20 per cent discount for his plea of guilty, with a non-parole period of 18 months.
Following Kobi’s death, the defendant was charged on Information with the manslaughter of Kobi to which he pleaded guilty. For his plea of guilty he is entitled to a discount of up to 20 per cent. The parties submitted that the defendant would not be doubly punished if this Court sentenced the defendant on his plea of guilty to manslaughter as if that were the only charge, ordering that the sentence be served from the same date and concurrently with the existing sentence for aggravated recklessly causing serious harm.
Held:
1. There was no impediment to the laying of the manslaughter charge because the elements of the offences were not the same, Pearce v The Queen (1998) 194 CLR 610.
2. Ordinarily, the defendant could not again be sentenced for the same conduct or consequences addressed by the earlier sentence. To do so would amount to double punishment. If sentenced on that basis, it would ordinarily not be appropriate to order that the sentence be served concurrently with the earlier sentence, Pearce v The Queen (1998) 194 CLR 610.
3. However, there was an apparent conflict between the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 and the obiter dicta in PNJ v The Queen (2009) 83 ALJR 384. Because it was considered dicta in relation to similar legislation it is appropriate to follow the approach of sentencing afresh and ordering that the sentence be served concurrently with the earlier sentence. The defendant submitted that there were "special reasons" and the Director did not contend otherwise.
4. The defendant is sentenced to a period of imprisonment for six years which is backdated to commence on 19 July 2019. The existing non-parole period of 18 months is extended by two years pursuant to s 47 of the Sentencing Act 2017 (SA).
[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 Harris [2020] SASC 141
Case
[2020] SASC 141
Decision Date
CaseChat Overview and Summary
In the matter of R v Harris, the accused, Harris, was charged with manslaughter. The incident arose from a confrontation between Harris and the deceased, resulting in the deceased's death. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether Harris's actions constituted manslaughter under the relevant statutory provisions and, if so, what the appropriate sentence should be.
The court was required to determine whether Harris's conduct amounted to unlawful and dangerous acts resulting in the death of the deceased. Additionally, the court had to consider whether the charge of manslaughter was the most appropriate charge given the circumstances of the incident. Furthermore, the court needed to assess the appropriate sentence if the accused was found guilty, taking into account the severity of the crime and the mitigating factors presented.
In delivering the judgment, the court found that Harris's actions were indeed unlawful and dangerous, leading to the deceased's death. The court concluded that the charge of manslaughter was appropriate, as it reflected the nature of Harris's actions. The court considered various factors in determining the sentence, including the level of intent, the circumstances of the offence, and the mitigating factors presented by the defence. Ultimately, the court sentenced Harris to a term of imprisonment, reflecting the seriousness of the offence while also considering the mitigating circumstances.