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Court of Criminal Appeal 1 November 2017

Harris v R

[2017] NSWCCA 254

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL APPEAL DISMISSED.

Citation: Harris v R [2017] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 1 November 2017
Judges: Hoeben CJ at CL; Beech-Jones J; N Adams J

Background

In July 1999, a masked intruder broke into a young woman's apartment in Wagga Wagga, restrained her, robbed her, and subjected her to a prolonged sexual assault. DNA evidence was collected at the time, but no match was identified. The applicant was only linked to the offending in 2014, when a DNA sample taken during his custody in the ACT for unrelated matters matched semen found on the victim's clothing from 1999.

The applicant pleaded guilty in the Local Court in March 2016, approximately 16 years after the offending. He was sentenced in the Wagga Wagga District Court in June 2016 to a head sentence of 11 years and 3 months (with an 8-year-plus non-parole period) on the aggravated sexual assault count, and a concurrent 6-year head sentence on the aggravated break, enter and commit serious indictable offence count. The sentencing judge declined to treat the lengthy delay as a mitigating factor or to find special circumstances justifying a departure from the statutory ratio between the non-parole period and the head sentence.

The applicant sought leave to appeal, arguing that the sentencing judge had erred by failing to give adequate weight to the 16-year delay between the offending and the sentence.

  • Whether the sentencing judge erred in declining to treat the lengthy delay between offending and sentence as a mitigating factor
  • Whether special circumstances existed, warranting a reduced non-parole period relative to the head sentence
  • Whether the totality principle was adequately applied given that the sentences for both counts ran concurrently

Decision

Hoeben CJ at CL, with whom the other judges agreed, dismissed the appeal. The central question was whether the delay of 16 years should have operated in the applicant's favour at sentencing. The Court found it should not, because the delay resulted entirely from the applicant's own failure to come forward. He had never been at risk of a sentence hanging over him that he had to endure for years, and the community had not been able to benefit from any period of demonstrated rehabilitation in the meantime.

The Court confirmed the principle, drawn from cases including R v Kay and R v Ponfield, that delay caused solely by an offender's non-disclosure does not attract the same mitigating weight as delay attributable to the prosecution, the courts, or other external factors. The sentencing judge had considered the delay but was entitled to give it no mitigating weight in these circumstances. That was not an error of principle.

On special circumstances, the Court found no basis for departing from the statutory ratio between the non-parole period and head sentence. The victim impact statement demonstrated that the offending continued to affect the victim significantly, and there had been no rehabilitation to speak of. The Court also noted that making both sentences wholly concurrent already reflected considerable leniency, given the distinct criminality of the two offences, and that this adequately addressed totality.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where delay between offending and sentence is caused solely by the offender's failure to come forward, a sentencing court is entitled to give that delay no mitigating weight.
  • A sentencing judge does not err in principle merely by acknowledging a delay and then declining to treat it as a factor in the offender's favour: the error arises only if the delay is improperly ignored or mischaracterised.
  • The Court of Criminal Appeal confirmed that offences are not rendered "stale" simply by the passage of time, particularly where rehabilitation has not occurred and the offender's own conduct produced the delay.
  • Concurrent sentences covering offences of different criminality can satisfy the totality principle where their combination already represents leniency; no further adjustment via the non-parole period ratio is automatically required.
  • Under the applicable principles, a reduced non-parole period for supervision purposes is only warranted where genuine special circumstances exist; the absence of demonstrated rehabilitation and ongoing harm to the victim are relevant considerations against such a finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61J(1), 61L, 61I, 112(2), 344A
- Criminal Appeal Act 1912 (NSW): s 6(1)

Cases
- Elchiekh v R [2016] NSWCCA 225
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Mill v R [1988] HCA 70; 166 CLR 59
- R v EGC [2005] NSWCCA 392
- R v Kay [2004] NSWCCA 130
- R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
- Zreika v R [2012] NSWCCA 44