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Court of Criminal Appeal 5 July 2017

Harper v R

[2017] NSWCCA 159

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE STRONG SUBJECTIVE CASE SENTENCING STATISTICS OF NO ASSISTANCE NO MEANINGFUL RANGE TO BE FOUND IN SO

Citation: Harper v R [2017] NSWCCA 159
Court: New South Wales Court of Criminal Appeal
Date: 5 July 2017
Judges: Hoeben CJ at CL, R A Hulme J, Garling J

Background

The applicant was sentenced in the District Court in May 2016 for breaking and entering a family home unit in company with five other men while armed with a stun gun, contrary to s 112(3) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years' imprisonment, with a standard non-parole period (a legislative benchmark) of 7 years. The sentencing judge imposed 5 years 3 months imprisonment with a non-parole period of 3 years 3 months, reduced by 12.5 per cent to reflect the utilitarian value of a late guilty plea.

The offending took place late at night. Six men forced open the front door of a unit where a couple and their three young children were home. The stun gun was deployed twice against the male victim as he tried to escape down a hallway, and the intruders caused significant damage to the kitchen, television, and internal doors. The applicant drove approximately 60 kilometres to participate, collecting others along the way. He gave evidence that he acted out of a mistaken belief that his sister had been attacked, a belief he later accepted was false.

The applicant's subjective case was described by the sentencing judge as compelling: he had no prior convictions at the time of the offence, was in stable employment, was the primary breadwinner for his family, and had strong character references. The sentencing judge found special circumstances warranting a longer parole period, given it would be the applicant's first time in custody.

  • Whether the sentence of 5 years 3 months was manifestly excessive, having regard to the sentencing judge's finding that the offence fell "below the middle of the range" of objective seriousness for offences of that type.
  • Whether the sentencing judge's finding as to the objective seriousness of the offence was properly reflected in the sentence ultimately imposed.
  • Whether sentencing statistics and comparable cases assisted in identifying a range against which manifest excess could be assessed.

Decision

The applicant's primary submission was that, having found the offence to be below the middle of the range of objective seriousness, the sentencing judge nonetheless imposed a sentence appropriate only for a mid-range offence. The Court of Criminal Appeal rejected this reading of the sentencing remarks. R A Hulme J, with whom Hoeben CJ at CL and Garling J agreed, found that the sentencing judge's use of the word "below" did not necessarily mean "substantially below." The offence retained a number of serious features, including the degree of planning, the use of violence, the involvement of six offenders, the targeting of a family home late at night, and the vigilante character of the conduct.

The Court confirmed that an appellate court will not intervene simply because it might have imposed a different sentence. The test for manifest excess requires that the sentence be unreasonable or plainly unjust, not merely that the appellate court would have reached a different result. The Court found no error in the sentencing judge's approach and no basis for concluding the sentence fell outside the range available to a sound exercise of discretion.

On the utility of sentencing statistics and comparable cases, the Court found neither of assistance. The available cases disclosed no meaningful consistent range, and the statutory provisions, including the 25-year maximum and the 7-year standard non-parole period, provided the more reliable guideposts. The Court also noted that the applicant's strong subjective case, while accepted in full, could not be permitted to overwhelm the need to impose a sentence proportionate to the objective gravity of the offence and to address general deterrence, which was particularly significant given the vigilantism involved.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's finding that an offence falls "below the middle of the range" does not carry a fixed numerical implication and does not necessarily mean the offence was substantially below that level; the precise weight of that characterisation depends on all the circumstances recorded in the sentencing remarks.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that manifest excess requires more than a different result being available; the sentence must be unreasonable or plainly unjust before appellate intervention is warranted.
  • A compelling subjective case, including good character, stable employment, family responsibilities, and genuine contrition, cannot override the requirement that a sentence remain proportionate to the objective seriousness of the offence.
  • Where an offence involves vigilante conduct, general deterrence takes on particular significance in the sentencing exercise.
  • Sentencing statistics and purportedly comparable cases will be of limited assistance where no consistent or meaningful range can be derived from them; the statutory maximum penalty and standard non-parole period remain the primary legislative guideposts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4(1), 112(3), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Chaaban [2006] NSWCCA 107
- R v Baghdadi [2008] NSWCCA 239
- R v Cheh [2009] NSWCCA 134
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- R v Dole; R v Nguyen [2010] NSWCCA 101
- Aslett v R [2012] NSWCCA 235
- R v Campbell [2014] NSWCCA 102
- De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32; 249 A Crim R 252