R v Harris-Merchant - [2021] NSWDC 501

District Court

New South Wales

Medium Neutral Citation: R v Harris-Merchant [2021] NSWDC 501
Hearing dates: 18 August 2021
Date of orders: 18 August 2021
Decision date: 18 August 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Sentence of imprisonment of 2 years 4 months with a non-parole period of 1 year

Catchwords:
CRIME — Public order offences — Affray
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Circumstances of offence
SENTENCING — Relevant factors on sentence — Parole period

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Mental Health (Forensic Provisions Act) 1990

Cases Cited:
Imbornone v R [2017] NSWCCA 144
R v Callaghan [2006] NSWCCA 58
R v Qutami [2001] NSWCCA 353

Category: Sentence
Parties: Regina (Crown)
Keano Harris-Merchant (Offender)
Representation:
Stella Calderbank (Crown)
Allan Goldsworthy (Counsel for the Offender)
Director of Public Prosecutions (NSW) (Crown)
Tully & Chiper Lawyers (solicitors for the Offender)

File Number(s): 2020/00293494

REVISED EX TEMPORE JUDGEMENT

Introduction

Keano Harris‑Merchant pleaded guilty in the Local Court at Central on 20 April 2021 to a charge of affray contrary to s 93C(1) Crimes Act 1900 expressed in the following terms: that he “on 30 September 2020 at Glebe in the State of New South Wales did use unlawful violence towards an unidentified male, and Keano Harris‑Merchant’s conduct was such as would have caused a person of reasonable firmness present at the scene to fear for her or his personal safety”.

Maximum Penalty

The offence carries a maximum penalty of imprisonment for 10 years. There is no standard non‑parole period for the purposes of Part 4, Div 1A Crimes (Sentencing Procedure) Act 1999.

Utility of the Plea of Guilty

The plea of guilty was entered at an early point in these proceedings, and attracts a 25% discount upon the application of s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999. The discount will be applied to the sentence that would otherwise have been imposed upon the synthesis of objective and subjective matters that have been raised in the course of these proceedings.
The sentence that I have selected has been rounded down to disregard odd days and thus there will be a slight increase in that percentage discount but of marginal, if any, significance.

Pre-Sentence Custody

The offender is in custody. He was arrested on 12 October 2020 and has been held since.
As a consequence of this misconduct, parole to which he was subject for prior offending was revoked with the balance to be served from that date. He will be eligible for his release upon the expiration of the parole period on 16 December 2021.
This requires the Court to consider when the sentence I impose today should commence. It is now well‑established that the Court has discretion as to when to commence a sentence imposed in these circumstances, as discussed by Justice Simpson in R v Callaghan [2006] NSWCCA 58 from para [21] and concluding at para [25]. The matters to which her Honour referred that a…

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-Merchant

Details

AGLC: R v Harris-Merchant [2021] NSWDC 501
Case: [2021] NSWDC 501
Decision Date: 18 August 2021

CaseChat Overview and Summary

In the case before the court, the defendant, Harris-Merchant, faced charges related to an affray. The incident in question involved a public disturbance where the defendant was implicated in a violent altercation. The matter was heard in the relevant Australian court, which was tasked with determining the appropriate legal outcomes and sentencing for the offence.

The primary legal issues before the court included the nature and severity of the public order offence committed, and the appropriate penalties and sentencing to be imposed. Specifically, the court had to consider the circumstances of the offence, the defendant's role in the affray, and the appropriate length of imprisonment. Additionally, the court needed to determine the non-parole period, which would define the minimum time the defendant must serve before being eligible for parole.

In rendering its decision, the court meticulously evaluated the facts and circumstances of the offence. It considered the defendant's involvement in the affray, the degree of violence exhibited, and the impact on public order. The court also assessed the relevant sentencing principles, including the need for deterrence, rehabilitation, and proportionality. After careful deliberation, the court imposed a sentence of imprisonment for a total of two years and four months, with a non-parole period of one year. This sentence reflects the court's determination of the appropriate punishment for the offence, taking into account the gravity of the defendant's actions and the need to uphold public order and safety.

Orders

Orders of the court

Sentence of imprisonment of 2 years 4 months with a non-parole period of 1 year

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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Medium Neutral Citation:	R v Harris-Merchant [2021] NSWDC 501
Hearing dates:	18 August 2021
Date of orders:	18 August 2021
Decision date:	18 August 2021
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sentence of imprisonment of 2 years 4 months with a non-parole period of 1 year
Catchwords:	CRIME — Public order offences — Affray SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Circumstances of offence SENTENCING — Relevant factors on sentence — Parole period
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Mental Health (Forensic Provisions Act) 1990
Cases Cited:	Imbornone v R [2017] NSWCCA 144 R v Callaghan [2006] NSWCCA 58 R v Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Regina (Crown) Keano Harris-Merchant (Offender)
Representation:	Stella Calderbank (Crown) Allan Goldsworthy (Counsel for the Offender) Director of Public Prosecutions (NSW) (Crown) Tully & Chiper Lawyers (solicitors for the Offender)
File Number(s):	2020/00293494