Citation: R v Harrison [2002] NSWCCA 198
Court: Court of Criminal Appeal, New South Wales
Date: 9 May 2002
Judge(s): Kirby J; Smart AJ
Background
The appellant, a young man born in August 1981, pleaded guilty at the first available opportunity in the Local Court to a range of offences committed in early 2000. The primary offences were stealing a motor vehicle from a secured car park at Cronulla and using that same stolen vehicle in a break, enter and steal at a tobacconist shop at Fairfield in the early hours of the morning. A number of related offences, including larceny, goods in custody, receiving stolen property, and being carried in a conveyance, were taken into account on sentence.
The offending occurred while the appellant was on a recognizance. He had an extensive criminal history from April 1998, including serious driving offences, dishonesty, drug offences, assault, robbery in company, and assault occasioning actual bodily harm. Although this was his first time in an adult gaol, he had previously served time in juvenile custody.
A consultant psychologist reported that the appellant was mildly intellectually disabled, illiterate, barely numerate, and had experienced significant childhood trauma including domestic violence and abuse. These circumstances were placed before the sentencing judge as mitigating factors. Judge Latham of the District Court imposed concurrent sentences, the longest being four and a half years with a two-year non-parole period. The appellant sought leave to appeal against the severity of those sentences.
Legal Issues
- Whether the sentences imposed by the District Court were manifestly excessive, having regard to the appellant's personal circumstances, cognitive difficulties, and early plea of guilty
- Whether the non-parole period of two years was appropriate given the appellant's age, his first time in adult custody, and limited access to rehabilitation programs in prison
- Whether the sentence imposed on the appellant was disproportionate compared to the sentence received by a co-offender for related offending
Decision
The Court of Criminal Appeal found no error in the sentences imposed at first instance. Smart AJ, with whom Kirby J agreed, examined each count in turn and concluded that all sentences fell within the permissible range for the criminality involved.
On the break, enter and steal charge (the tobacconist offence), the sentencing judge had characterised the incident as analogous to a "ram raid." Smart AJ acknowledged that the vehicle was not driven directly into the building, but noted that glass was smashed using a tyre lever and the offence remained serious. The four and a half year head sentence, incorporating six offences taken into account, was justified on the facts.
Regarding the non-parole period, Smart AJ acknowledged the difficulty raised by the appellant's young age, his first time in adult custody, and the limited availability in prison of assistance he genuinely needed. The sentencing judge had already reduced the weight given to general deterrence in recognition of those factors. Despite this, the two-year non-parole period remained within the permissible range, and no error in its fixing was established.
The co-offender comparison ground also failed. The Court found that the co-offender had been sentenced for a different and narrower set of offences. Because the two sentences did not relate to the same body of criminality, no meaningful disparity could be established.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that sentences within the permissible discretionary range will not be disturbed on appeal, even where the offender has significant personal hardship and cognitive difficulties.
- A challenging background, including childhood trauma, intellectual disability, and drug and alcohol dependency, may reduce the weight given to general deterrence but does not automatically render an otherwise appropriate sentence excessive.
- Where a co-offender was sentenced for a different and narrower set of offences, a disparity argument based on that comparison cannot succeed.
- The two-year non-parole period was upheld despite the appellant's young age and first time in adult custody, because the sentencing judge had already taken those matters into account.
- No question of principle arose in this decision; the Court resolved the matter purely on the basis that the sentences were within the range available to the sentencing judge.
Legislation and Cases Referenced
Legislation: None cited.
Cases: None cited.