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Court of Criminal Appeal 15 May 2014

Harris v Harrison

[2014] NSWCCA 84

Also reported as (2014) 86 NSWLR 422
Fraud & dishonesty
CRIMINAL LAW APPEAL S 5AB CRIMINAL APPEAL ACT 1912 (NSW) SENTENCE MULTIPLE GROUNDS PLEADED ERROR FOUND

Citation: Harris v Harrison [2014] NSWCCA 84
Court: Court of Criminal Appeal, NSW
Date: 15 May 2014
Judges: Simpson J (principal judgment); Hall J and Schmidt J (agreeing)

Background

The appellant was a farmer and grazier who, in July 2009, inserted a steel rod into a pump used to draw water from the Murrumbidgee River. The rod prevented the meter from recording the volume of water taken. He was charged with intentionally or recklessly interfering with metering equipment contrary to s 91K(1) of the Water Management Act 2000 (NSW), a "Tier 1 penalty" offence carrying a maximum fine of $1,100,000 and up to two years' imprisonment for an individual.

The appellant pleaded guilty in the Land and Environment Court, where Pepper J convicted him, imposed a fine of $28,000, ordered him to pay the respondent's legal costs, and made a publication order requiring him to place a notice about the offence in two local newspapers at his own expense.

The appellant appealed to the Court of Criminal Appeal under s 5AB of the Criminal Appeal Act 1912 (NSW), raising 16 grounds. The central complaint was that Pepper J had misjudged the objective gravity of the offence, including through an error in construing s 52 of the Act (which governs basic landholder domestic and stock-watering rights). The appeal also challenged the terms of the publication order.

  • Whether the primary judge erred in her assessment of the objective gravity of the offence
  • Whether the primary judge misconstrued s 52 of the Water Management Act, which confers domestic and stock-watering rights on landholders without the need for an access licence
  • Whether the primary judge failed to take into account a relevant consideration in the sentencing exercise
  • Whether the Court of Criminal Appeal had jurisdiction to entertain an appeal against a publication order made under s 353G(1)(a) of the Water Management Act
  • Whether the total penalty imposed (fine, costs, and publication order) was manifestly excessive

Decision

The Court of Criminal Appeal found error in the approach taken by the primary judge, principally in the assessment of the objective gravity of the offence. The construction of s 52 of the Water Management Act was central to that assessment. The appellant had claimed he tampered with the meter only to fill his house dam, a purpose that arguably fell within the domestic and stock-watering rights conferred by s 52. Simpson J accepted that the primary judge had erred in construing this provision, and that this error infected the sentencing process.

The Court also found that the primary judge had failed to take into account a relevant consideration. These errors, individually or collectively, supported the conclusion that resentencing was required.

On the jurisdictional question, the Court held that it did have jurisdiction under s 5AB of the Criminal Appeal Act to entertain the appeal against the publication order. That question turned on the proper construction of the relevant provisions and was resolved in the appellant's favour.

The conviction itself was confirmed without alteration. However, the sentence was reconsidered and the orders of the Land and Environment Court (other than the conviction) were vacated and replaced. The Court substituted a two-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 and a modified publication order requiring a single notice in one publication rather than two.

Orders Made

  • Appeal allowed
  • Order (1) of the Land and Environment Court (conviction under s 91K(1) of the Water Management Act 2000) confirmed
  • Orders (2) to (7) of the Land and Environment Court vacated
  • In substitution: the appellant directed to enter into a good behaviour bond for two years under s 9 of the Crimes (Sentencing Procedure) Act 1999
  • In substitution: the appellant ordered to publish, within 28 days, a notice in the form specified by the Court (Annexure "A") in either the Riverine Grazier or The Land, at his own expense

Key Takeaways

  • The Court of Criminal Appeal confirmed that it has jurisdiction under s 5AB of the Criminal Appeal Act 1912 to entertain an appeal against a publication order made under s 353G(1)(a) of the Water Management Act 2000.
  • Erroneous construction of s 52 of the Water Management Act, which governs basic domestic and stock-watering rights, can infect the sentencing court's assessment of objective gravity and constitute appellable error.
  • A failure to take into account a relevant consideration during sentencing is also a recognised basis for appellate intervention in this jurisdiction.
  • Upholding the appeal did not require disturbing the conviction: the Court of Criminal Appeal confirmed the guilty verdict while vacating and substituting the sentencing orders.
  • Under s 353G(1)(a), a court retains discretion over the form of a publication order, and the Court of Criminal Appeal modified the terms to require a single notice in one nominated publication rather than notices in two newspapers.

Legislation and Cases Referenced

Legislation
- Water Management Act 2000 (NSW), ss 52, 91K(1), 347, 353G(1)(a), 363B
- Water Sharing Plan for the Murrumbidgee Regulated River Water Source 2003 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5AA(4), 5AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 17
- Criminal Procedure Act 1986 (NSW), ss 257B, 257G
- Land and Environment Court Act 1979 (NSW), s 21

Cases
- Harrison v Harris [2013] NSWLEC 105 (primary judgment on appeal)
- Harris v Harrison [2013] NSWCCA 314 (stay of publication order)
- Griffiths v The Queen [1977] HCA 44; 137 CLR 293
- The Queen v de Simoni [1981] HCA 31; 147 CLR 383
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Doan [2000] NSWCCA 317; 50 NSWLR 115
- Zreika v R [2012] NSWCCA 44
- Wise v R [2006] NSWCCA 264
- YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; 109 CLR 395