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12
Court of Criminal Appeal 21 December 2021

Harris v R

[2021] NSWCCA 322

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE AGGREGATE SENTENCE EXTENSION OF TIME IN WHICH TO APPEAL ROBBERY IN COMPANY

Citation: Harris v R [2021] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 21 December 2021
Judge(s): Simpson AJA, Ierace J, Dhanji J (judgment delivered by Dhanji J)

Background

The applicant pleaded guilty in the Local Court to one count of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. A second robbery in company offence and three drug possession offences were taken into account on a Form 1 (a procedure allowing additional offences to be considered without separate conviction at sentencing). He was also sentenced for carrying a cutting weapon.

The offences arose from an incident on 11 June 2019 at a convenience store in Waterloo. The applicant and his co-offender, who were cousins, entered the store and then returned with hoods raised. During the robbery, the co-offender produced a knife and threatened the store owners and their four-year-old child, while the applicant blocked the exit and directed the victims not to move. The store owners handed over $300 in cash.

The applicant was sentenced in the District Court at Campbelltown on 22 May 2020 to an aggregate term of 4 years and 5 months imprisonment with a non-parole period of 3 years. He sought leave to appeal out of time on two grounds: that the sentence was manifestly excessive and that it produced an unjustifiable disparity with the sentence imposed on his co-offender.

  • Whether an extension of time in which to appeal should be granted
  • Whether the aggregate sentence of 4 years and 5 months was manifestly excessive
  • Whether the sentence gave rise to a justifiable sense of grievance when compared with the co-offender's sentence (the parity ground)
  • The proper weight to be given to the applicant's lesser role in the offending
  • The proper weight to be given to the applicant's significant personal background, including childhood trauma, Aboriginal identity, and complex psychiatric diagnoses

Decision

Extension of time: The Court granted the extension of time. The delay was not attributable to the applicant himself, and the Court had regard to its assessment of the merits in doing so.

Manifest excess and the parity ground: The Court found the original sentence manifestly excessive when the applicant's lesser role was properly weighed. The co-offender was the one who produced and wielded the knife, made the threats to the child, and snatched the wallet from an elderly victim. The applicant's role, while serious and integral to the robbery, was secondary. The co-offender had received an aggregate sentence of 4 years and 9 months; given the applicant's lesser culpability, the gap between their sentences was insufficient and created a justifiable sense of grievance.

Personal background: The Court gave significant weight to the applicant's background. He had been removed from his family at age three, experienced multiple foster placements over eight years including serious physical and sexual abuse, had no meaningful cultural connection to the Aboriginal community during childhood, and was living with Complex PTSD, Cluster B Personality Disorder, and severe substance use disorder at the time of the offending. His severe drug use (3-4 grams each of heroin and methylamphetamine daily) was directly connected to his childhood trauma. Consistent with the principles from R v Fernando and Bugmy v The Queen, these matters were treated as genuinely mitigating.

Resentencing: Dhanji J imposed a sentence of 5 years imprisonment for the robbery in company before discount, then applied a 25 percent discount for the utilitarian value of the guilty plea, arriving at 3 years and 9 months for that count. With the carrying of a cutting weapon attracting 2 months (after a similar discount), and having regard to the totality principle, the Court imposed an aggregate sentence of 3 years and 10 months with a non-parole period of 2 years and 6 months, both commencing from the date of arrest on 20 June 2019.

Orders Made

  • Extension of time in which to appeal granted
  • Leave to appeal granted
  • Appeal allowed
  • Original District Court sentence quashed
  • Aggregate sentence of 3 years and 10 months imprisonment imposed, commencing 20 June 2019 and expiring 19 April 2023, with a non-parole period of 2 years and 6 months expiring 19 December 2021
  • Indicative sentence for the robbery in company count (including Form 1 matters): 3 years and 9 months with a non-parole period of 2 years and 5 months
  • Indicative sentence for the cutting weapon offence: 2 months
  • Noted that, as at the date of the orders, the applicant was eligible for release on parole, subject to consideration by the Parole Authority

Key Takeaways

  • Where co-offenders are sentenced for the same criminal enterprise, a materially lesser role in the offending must be reflected in a meaningfully lower sentence; the parity principle gives rise to a justifiable sense of grievance where the gap is insufficient to reflect that difference in culpability.

  • Consistent with Bugmy v The Queen and R v Fernando, an offender's Aboriginal background, childhood institutional trauma, and resulting psychiatric conditions remain relevant mitigating factors at every sentencing, including on appeal, regardless of any prior criminal history.

  • A guilty plea discount of 25 percent was applied to reflect the utilitarian value of the plea, in accordance with the principles in R v Thomson; R v Houlton.

  • The Court of Criminal Appeal confirmed that when assessing manifest excess in an aggregate sentence, the correct approach involves examining the indicative sentences for individual counts alongside the aggregate, to ensure the totality principle has been properly applied.

  • An extension of time to appeal will be granted where the delay is not attributable to the applicant and where the merits of the proposed appeal are sufficient to justify it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94(b), 97(1), 547D
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases:
- Abbas & Ors v R (2013) 31 A Crim R 413; [2013] NSWCCA 115
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Edwards v R [2021] NSWCCA 57
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Pearce v The Queen (1998) 194 CLR 610
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Whyte (2002) NSWLR 252; [2002] NSWCCA 343
- Additional cases cited in the judgment include Director of Public Prosecutions (Cth) v De La Rosa, Obeid v R, Dungay v R, Nasrallah v R, Hoskins v R, Legge v R, R v JW, R v Murchie, and Christopher Ross v R