R v Harrison - [2008] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 300 of 2007

THE QUEEN
	v
RICKY HARRISON

---

JUDGES:	BUCHANAN and ASHLEY JJA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 April 2008
DATE OF JUDGMENT:	24 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 65

---

Criminal Law - Appeal - Sentence - Armed robbery - Offence committed while on bail for unrelated assault - Whether sentence manifestly excessive - Whether totality principle properly applied - Whether error in determining appellant's prospects of rehabilitation.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Victorian Aboriginal Legal Service Co-operative Ltd

BUCHANAN JA:

In my opinion the appeal should be dismissed for the reasons stated by Forrest AJA.

ASHLEY JA:

For the reasons given by Forrest AJA, I agree that this appeal should be dismissed.

FORREST AJA :

Introduction

The appellant pleaded guilty to one count of armed robbery in the County Court arising out of an offence committed by the appellant at Hastings on 24 May 2006.

The appellant was sentenced on 12 September 2007 to three years’ imprisonment. His Honour ordered that the sentence be cumulative upon a sentence of imprisonment of two years and six months already being served by the appellant under an earlier sentence imposed in November 2006 with a non-parole period of 15 months being set. Allowing for pre sentence detention, only one month remained in September 2007 before the appellant was eligible for parole. His Honour had been minded to fix a non parole period of 16 months in respect of this offence; consistently with that intention he fixed a fresh single non-parole period of 17 months in respect of all sentences imposed upon the appellant as required by s 14 of the Sentencing Act.

The appellant now appeals, by leave, on the grounds that the sentence was manifestly excessive in all the circumstances and that the sentencing judge erred in two specific findings.

The appellant’s background

The appellant was born on 15 November 1984 and is now 23 years of age. He was placed in foster care soon after his birth. He is of Aboriginal descent and, despite the love and care of his foster parents, has had a very difficult life. His biological parents had little to do with him during his formative years.

The appellant was educated to Year 7, after being expelled from school at the age of 13. He had extreme behavioural difficulties at school and was diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’). A psychological assessment when he was nearly 13 years of age illustrates the difficulties that he encountered at that tender age. At that age he was described as being disruptive, abusive and caught up in dangerous incidents involving fighting and threatening behaviour to other students and teachers. Testing at that age revealed a low average IQ. Given the diagnosis of ADHD it was necessary for him to be medicated.…

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 Harrison

Details

AGLC: R v Harrison [2008] VSCA 65
Case: [2008] VSCA 65
Decision Date: 24 April 2008

CaseChat Overview and Summary

In the case of R v Harrison, the appellant was convicted of armed robbery and was appealing against his sentence. The dispute involved the severity of the sentence imposed, with the appellant arguing that it was manifestly excessive. The appeal was heard in the court of appeal, which had to determine the legal issues surrounding the sentencing process.

The court was required to decide whether the sentence imposed was manifestly excessive, taking into account the totality principle and the appellant's prospects of rehabilitation. The totality principle refers to the need to consider the cumulative effect of multiple sentences imposed on an offender. The court also had to assess whether the trial judge erred in determining the appellant's prospects of rehabilitation, which is a relevant factor in sentencing.

The court found that the sentence imposed was not manifestly excessive and that the trial judge had properly applied the totality principle. The court concluded that the trial judge had not erred in determining the appellant's prospects of rehabilitation, as there was evidence to support the assessment. The appeal was therefore dismissed, and the original sentence was upheld.

The court did not make any further orders, and the original sentence remained in place. The appellant's conviction for armed robbery was not challenged on appeal, and the focus was solely on the sentence imposed. The court's decision highlights the importance of considering the totality principle and the offender's prospects of rehabilitation when determining an appropriate sentence.

Orders