AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 26 November 2013

Harris v R

[2013] NSWCCA 296

Sexual offencesTheft & property
CRIMINAL LAW APPEAL ERROR ESTABLISHED APPLICANT RE SENTENCED CRIMINAL LAW APPEAL

Citation: Harris v R [2013] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 26 November 2013
Judges: Hoeben CJ at CL, Johnson J, Bellew J (judgment delivered by Bellew J, with whom the others agreed)

Background

The applicant pleaded guilty in November 2007 to five counts: two counts of indecent assault on children (aged 11 and 5 respectively) and three counts of break, enter and steal. He was sentenced in February 2008 by Judge Blackmore in the District Court, receiving an overall non-parole period of 7 years and 6 months with an additional term of 4 years and 6 months.

The applicant had filed a notice of intention to appeal shortly after sentencing, but a legal aid refusal prevented that appeal from proceeding. He later conferred with a solicitor in late 2012 and was informed that his sentence had been reviewed for a potential "Muldrock error" (a sentencing error arising from incorrect application of standard non-parole periods, following the High Court's decision in Muldrock v R (2011) 244 CLR 120). A formal notice of application for leave to appeal was filed in July 2013, well outside the ordinary time limits.

The Crown opposed the grant of an extension of time. The Court of Criminal Appeal was therefore required to consider both the procedural question of whether to extend time and the substantive question of whether the original sentences were affected by error.

  • Whether the applicant should be granted an extension of time in which to seek leave to appeal against sentence, given the significant delay
  • Whether the sentencing judge committed a "Muldrock error" by treating the standard non-parole period as a fixed or dominant sentencing benchmark rather than as one of two reference points
  • Whether the sentencing judge cited an incorrect standard non-parole period when sentencing on count 1
  • Whether the starting point adopted for any sentence exceeded the applicable maximum penalty

Decision

The Court granted the extension of time. The principles applicable to such applications in the post-Muldrock context had been addressed in earlier decisions including Abdul v R [2013] NSWCCA 247, and the Court was satisfied that the explanation for delay was adequate and that the interests of justice favoured allowing the appeal to proceed.

On the substantive grounds, the Court found three distinct errors in the original sentencing. First, a "Muldrock error" was established: the sentencing judge had applied the standard non-parole period in a way that did not accord with the approach later mandated by the High Court. Second, the sentencing judge had cited an incorrect standard non-parole period in relation to count 1 (the offence against the 11-year-old), citing a figure that did not correspond to the applicable provision of the Crimes (Sentencing Procedure) Act 1999. Third, in relation to at least one count, the starting point the sentencing judge adopted exceeded the maximum penalty prescribed for that offence, which was independently identified as a distinct and fundamental error.

Having found error on each of those bases, the Court re-sentenced the applicant on all five counts. The overall non-parole period remained 7 years and 6 months, but the additional term was reduced from 4 years and 6 months to 3 years, moving the sentence expiry date from April 2019 to October 2017.

Orders Made

  • Extension of time in which to seek leave to appeal against sentence: granted
  • Leave to appeal against sentence: granted
  • Appeal: allowed
  • Sentence on count 1 quashed; replaced with a non-parole period of 2 years and 10 months (11 July 2010 to 10 May 2013), with an additional term of 11 months expiring 10 April 2014
  • Sentence on count 2 quashed; replaced with a non-parole period of 4 years (11 October 2010 to 10 October 2014), with an additional term of 3 years expiring 10 October 2017
  • Sentence on count 3 quashed; replaced with a non-parole period of 9 months (11 October 2009 to 10 July 2010), with an additional term of 9 months expiring 10 April 2011
  • Sentence on count 4 quashed; replaced with a non-parole period of 12 months (11 April 2007 to 10 April 2008), with an additional term of 6 months expiring 10 October 2008
  • Sentence on count 5 quashed; replaced with a non-parole period of 18 months (11 April 2008 to 10 October 2009), with an additional term of 18 months expiring 10 April 2011, taking into account twelve Form 1 matters
  • Overall non-parole period: 7 years and 6 months, commencing 11 April 2007 and expiring 10 October 2014, with an additional term of 3 years expiring 10 October 2017
  • Eligible for parole: 10 October 2014; sentence expiry: 10 October 2017

Key Takeaways

  • Three independent grounds of sentencing error were each sufficient to justify intervention: a Muldrock error in the application of the standard non-parole period, citation of the wrong standard non-parole period figure, and adoption of a sentencing starting point that exceeded the statutory maximum.
  • A starting point that exceeds the maximum penalty for an offence constitutes a fundamental error, independent of any Muldrock analysis.
  • Delay caused by a refusal of legal aid, followed by a review prompted by the Muldrock line of authority, was accepted as a sufficient explanation to support an extension of time, consistent with the approach taken in Abdul v R and related cases.
  • Although multiple errors were established and all five sentences were quashed and re-imposed, the Court maintained the same overall non-parole period of 7 years and 6 months, with only the additional term reduced.
  • Under Muldrock v R (2011) 244 CLR 120, a standard non-parole period must function as one of two legislative reference points in the sentencing exercise, not as a dominant or determinative benchmark.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54B(3), 54B(4), 54B(5)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)

Cases:
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Abdul v R [2013] NSWCCA 247
- Aldous v R [2012] NSWCCA 153
- Aslett v R [2012] NSWCCA 235
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Essex v R [2013] NSWCCA 11
- Han v R [2009] NSWCCA 300
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Vandeventer v R [2013] NSWCCA 33
- Zreika v R [2012] NSWCCA 44