AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
65
Court of Criminal Appeal 20 December 2000

R v Harris

[2000] NSWCCA 469

Also reported as [2000] 50 NSWLR 409 (2000) 121 A Crim R 342
Homicide
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE LIFE SENTENCE SENTENCING UNDER S19A CRIMES ACT HEINOUSNESS NON PAROLE PERIOD FOR LIFE SENTENCE

Citation: R v Harris [2000] NSWCCA 469
Court: NSW Court of Criminal Appeal
Date: 20 December 2000
Judges: Giles JA, Wood CJ at CL, James J

Background

The respondent pleaded guilty to three counts of murder and one count of armed robbery in company. At first instance, Bell J sentenced him to 40 years imprisonment with a 25-year non-parole period for each count of murder, and three years with no parole period for the armed robbery.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, arguing that the murders were so heinous that life sentences without a non-parole period were required. The Crown contended the trial judge had given excessive weight to subjective circumstances, had misapplied the statutory sentencing framework, and had wrongly assumed that a non-parole period could be attached to a life sentence imposed under s 19A of the Crimes Act 1900.

The Court of Criminal Appeal (Giles JA, Wood CJ at CL, and James J) allowed the appeal in part, quashing the sentences for two of the three murder counts and substituting life sentences with no non-parole period fixed.

  • Whether s 61 of the Crimes (Sentencing Procedure) Act 1999 replaced or merely reflected the common law "worst case" principle requiring life sentences
  • Whether the killings were sufficiently heinous to warrant life imprisonment, and whether the trial judge gave too much weight to the respondent's subjective circumstances
  • Whether a court sentencing under s 19A of the Crimes Act 1900 has any power to fix a non-parole period for a life sentence
  • Whether the "truth in sentencing" principle would be offended by extending to such cases the power to set a non-parole period

Decision

The "worst case" principle and s 61. The Court held that s 61(1) of the Crimes (Sentencing Procedure) Act 1999 did not introduce a code narrower than the common law "worst case" category. There is no meaningful distinction between the culpability threshold required under s 61 and the threshold for a common law life sentence, so decisions giving content to the "worst case" concept remain relevant. It was also permissible for a sentencing judge to assess s 61 independently before then considering whether to exercise the discretion under s 21 to impose a specified term instead.

Heinousness and subjective circumstances. The Court found the killings to be heinous, callous, and reprehensible. The trial judge erred by giving too much weight to the respondent's subjective circumstances, which were insufficient to displace the need for life sentences. Where offences reach this level of seriousness, subjective circumstances are to be disregarded.

No power to fix a non-parole period. The Court held that the only source of power to set a non-parole period is Part 4, Division 1 of the Crimes (Sentencing Procedure) Act 1999. That Act expressly exempts life sentences imposed under s 19A of the Crimes Act and s 33A of the Drug Misuse and Trafficking Act from the schedule permitting applications for redetermination of life sentences. There is accordingly no jurisdiction to fix a non-parole period for such sentences, and the legislative intent is that those prisoners remain in custody for the remainder of their natural lives.

The anomaly identified. Wood CJ at CL noted a significant inconsistency: an offender sentenced to life for drug offences under the federal Customs Act may have a non-parole period fixed, whereas one sentenced under the NSW Drug Misuse and Trafficking Act cannot. The Court observed that NSW and the Northern Territory were alone among Australian jurisdictions in denying courts the power to fix non-parole periods for life sentences for murder, and expressed the view that this area warrants legislative reconsideration. However, the Court was bound by the existing law and declined to fix a non-parole period on that basis alone.

Orders Made

  • Appeal allowed
  • Sentences for murders charged in counts 2 and 3 of the indictment quashed
  • In lieu thereof, the respondent sentenced to imprisonment for life on each of those counts, with no non-parole period fixed

Key Takeaways

  • Section 61 of the Crimes (Sentencing Procedure) Act 1999 does not operate as a code narrower than the common law "worst case" principle; prior common law authorities defining that category remain applicable.
  • Where offences are so heinous as to warrant a life sentence, subjective circumstances of the offender cannot displace that sentencing outcome.
  • Under s 19A of the Crimes Act 1900, a life sentence carries no power for a court to fix a non-parole period; the legislative scheme confirms the intention that such prisoners remain imprisoned for the remainder of their natural lives.
  • The Court of Criminal Appeal identified a discriminatory anomaly in the NSW regime: offenders sentenced to life under federal law (for example, under the Customs Act) may have a non-parole period fixed, while those sentenced to life under equivalent NSW provisions cannot.
  • In exercising its discretion on a Crown appeal against leniency, the Court applied the double jeopardy principle, intervening only in respect of two of the three murder counts given the Crown had expressly not sought a life sentence for the first count at trial.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 19A, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 44, 45, 54, 61, Schedule 1
- Sentencing Act 1989 (NSW), s 13A
- Drug Misuse and Trafficking Act (NSW), s 33A
- Crimes Act 1914 (Cth), s 19AB(1)(d)
- Customs Act 1901 (Cth)
- Sentencing Act 1991 (Vic), s 11; Sentencing Act 1997 (Tas), s 18; Sentencing Act 1995 (WA), s 90
- Penalties and Sentences Act 1992 (Qld), s 157

Key Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wilson v The Queen (1992) 174 CLR 313
- Bugmy v The Queen (1990) 169 CLR 625
- R v Mitchell (1996) 70 ALJR 313
- R v Kalajzich (1997) 94 A Crim R 41
- R v Fernando (1997) 95 A Crim R 533
- R v Allpass (1993) 72 A Crim R 561
- R v Street (unreported, NSWCCA, 17 December 1996)
- R v Leonard (unreported, Badgery-Parker J, 10 November 1997)
- R v Rose (unreported, Levine J, 3 September 1998)
- R v Robinson [2000] NSWSC 972