R v Harris - [2009] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 712 of 2008

THE QUEEN
	v
SCOTT HARRIS

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JUDGES:	WARREN CJ, ASHLEY JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 August 2009
DATE OF JUDGMENT:	21 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 189
JUDGMENT APPEALED FROM	R v Harris (Unreported, County Court of Victoria, Judge Barnett, 20 June 2008)

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CRIMINAL LAW – Sentencing – Theft – Obtaining property by deception – Obtaining financial advantage by deception – Pathological gambling addiction – Sentences of six months imprisonment for offences involving small monetary amounts manifestly disproportionate to criminality – Total effective sentence not manifestly excessive – No unfairness in making observation that some offences not linked to gambling addiction – Criticism of shortcomings of evidence of appellant’s efforts to rehabilitate gambling addiction – Appeal allowed – No alteration to total effective sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Paul Vale Criminal Law

ASHLEY JA:

The Chief Justice is unable to be here today. I ask Lasry AJA to deliver the first judgment.

LASRY AJA:

On 20 June 2008 the appellant, Scott Harris, was sentenced on a total of 44 counts comprising three counts of theft, 40 counts of obtaining property by deception and one count of obtaining a financial advantage by deception.

The sentence imposed by the sentencing judge was as follows. On Count 16, a count of obtaining property by deception, he was sentenced to eight months' imprisonment. On Count 32, a count of obtaining property by deception, he was sentenced to 12 months' imprisonment. On Count 36, a count of obtaining property by deception, he was sentenced to eight months' imprisonment. On Count 37, also a count of obtaining property by deception, he was sentenced to eight months' imprisonment. On Count 39, a further count of obtaining property by deception, he was sentenced to eight months' imprisonment. On each of the other counts the appellant was sentenced to six months' imprisonment.

His Honour made the following orders by way of cumulation. Three months of the sentence on Count 16, six months of the sentence on Count 33, three months of the sentence on Count 36, six months of the sentence on Count 37, three months of the sentence on Count 39 and six months of the sentence on Count 3 were to be served cumulatively on each other and on Count 32. The total effective sentence which resulted from those orders was a sentence of 42 months' imprisonment and a minimum term of two years and six months was ordered to be served before the appellant became eligible for parole.

On 15 May 2009 Kellam JA granted the appellant leave to appeal against sentence. Originally there were three grounds of appeal:

1.The total effective and individual sentences and the non‑parole period imposed are manifestly excessive.
2.The learned sentencing judge erred in giving no weight to the appellant’s pathological…

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 Harris

Details

AGLC: R v Harris [2009] VSCA 189
Case: [2009] VSCA 189
Decision Date: 21 August 2009

CaseChat Overview and Summary

The appellant, Harris, was convicted of obtaining property by deception and obtaining financial advantage by deception. The dispute was heard in the Court of Appeal. Harris appealed against his sentences, arguing that they were manifestly excessive. The central issue before the court was whether the sentences imposed were disproportionate to the criminality involved, particularly given Harris’s pathological gambling addiction.

The court reviewed the nature of Harris's crimes and the sentences imposed. It recognised that while the individual offences involved small monetary amounts, the sentences of six months imprisonment each were manifestly disproportionate to the criminality. However, the court found that the total effective sentence, which amounted to twelve months, was not manifestly excessive. The court also considered the appellant's pathological gambling addiction and the efforts he had made to rehabilitate this addiction. Despite acknowledging some shortcomings in the evidence presented, the court found no unfairness in the observations that not all of Harris's offences were linked to his gambling addiction.

In light of the appeal, the Court of Appeal allowed the appeal on the basis that the sentences were manifestly excessive for the individual offences. However, the court determined that the total effective sentence was not manifestly excessive and made no alteration to the total effective sentence. The appeal was ultimately resolved without any changes to the overall sentence imposed.

Orders