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Court of Criminal Appeal 12 July 2023

Harris v R

[2023] NSWCCA 174

Assault & violenceTheft & propertyFirearms & weapons
CRIME APPEAL APPEAL AGAINST SENTENCE ARMED ROBBERY WITH AN OFFENSIVE WEAPON TOMAHAWK AND PETROL APPEAL DISMISSED

Citation: Harris v R [2023] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 12 July 2023
Judges: Beech-Jones CJ at CL, Davies J, McNaughton J (McNaughton J delivered the principal judgment; the others agreed)

Background

The applicant was convicted after a jury trial in the District Court at Bathurst of one count of armed robbery with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW). The offence occurred on a Sunday afternoon at the Molong RSL Club, a small country town venue with staff and patrons present. The applicant entered wearing a disguise, armed with a tomahawk axe approximately 50 centimetres in length and a water bottle filled with petrol.

During the robbery, the applicant squirted petrol into a patron's face, causing him to fall to the ground with stinging eyes. He then threatened to set the bartender alight, demanded money from the till, and warned patrons he would kill them if police were called. The sentencing judge found the applicant had brought the tomahawk from home and prepared the petrol bottle there, indicating a degree of planning.

The sentencing judge imposed a total term of 9 years and 6 months' imprisonment with a non-parole period of 5 years and 9 months. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, and also raised three specific factual errors he said the sentencing judge had made (referred to as sub-grounds).

  • Whether the sentencing judge erred in treating harm to the community as a relevant sentencing consideration (sub-ground 1)
  • Whether it was open to the sentencing judge to treat the proximity of a patron's child to the offending as an aggravating factor (sub-ground 2)
  • Whether the finding that the use of a chemical "substantially" increased the objective seriousness of the offending was open on the evidence (sub-ground 3)
  • Whether the overall sentence of 9 years and 6 months with a non-parole period of 5 years and 9 months was manifestly excessive

Decision

Sub-ground 1: Community harm. The Court rejected the argument that the community impact of the offence was an irrelevant consideration. The fact that the robbery occurred on a Sunday afternoon at a club associated with leisure and relaxation in a small country town was a proper sentencing consideration under s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires courts to recognise harm done to victims and the community. The Court found the sentencing judge had not double-counted or improperly elevated this factor.

Sub-ground 2: Child's proximity. The applicant argued the sentencing judge had improperly invoked the statutory aggravating factor under s 21A(2)(ea), which applies where an offence is committed in the presence of a child under 18. The Court disagreed, finding the sentencing judge's language indicated he was not relying on that specific provision. The list of aggravating features in s 21A(2) is not exhaustive, and it was open to treat the child's proximity as a factor increasing the relative seriousness of the offence through the general provision in s 21A(1)(c).

Sub-ground 3: Use of petrol. The Court found the sentencing judge's characterisation of the petrol as substantially increasing objective seriousness was clearly open. The guideline judgment in R v Henry (1999) 46 NSWLR 346 contemplated only "limited, if any, actual violence" as a baseline. Splashing petrol into a patron's face plainly exceeded that baseline by a substantial margin.

Manifest excess. The Court concluded the sentence fell within the wide discretion available to the sentencing judge and was neither unreasonable nor plainly unjust. The offending was particularly serious: two weapons were used, there was evidence of planning, the applicant was on multiple forms of conditional liberty at the time, his prior criminal history disentitled him to leniency, and he had been convicted after a trial with no guilty plea discount. While the sentencing judge accepted that the applicant's deprived background reduced his moral culpability to some degree, consistent with Bugmy v The Queen (2013) 249 CLR 571, his Honour also found that countervailing considerations including community protection affected the degree of mitigation available. The maximum penalty of 20 years' imprisonment provided the relevant yardstick, and comparative sentences relied upon by the applicant were each distinguishable on objective seriousness or subjective factors, and all involved guilty pleas.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the context in which an offence occurs, including the type of venue and the time of day in a small community, can be a legitimate consideration under s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) without amounting to double-counting.
  • The statutory list of aggravating factors in s 21A(2) is not exhaustive. A sentencing judge may treat a circumstance not specifically listed, such as the proximity of a child to the offending, as increasing relative seriousness under s 21A(1)(c), provided the reasons make clear the judge is not purporting to invoke a specific statutory factor.
  • A finding that the use of a dangerous chemical substantially elevated objective seriousness was open where the guideline judgment for armed robbery contemplated only limited violence as a baseline, and the actual conduct clearly exceeded that baseline.
  • Where an applicant is convicted after trial, carries significant prior criminal history, was subject to multiple forms of conditional liberty at the time of offending, and used two weapons with evidence of planning, those factors cumulatively support a sentence at the higher end of the range without producing manifest excess.
  • Consistent with Bugmy v The Queen, a deprived background may reduce moral culpability, but the Court reaffirmed that community protection considerations can limit the mitigating weight that background carries in the overall sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 36
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Turnbull v R [2019] NSWCCA 97
- Foaiaulima v R [2020] NSWCCA 270
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Chartres-Abbott v R [2021] NSWCCA 239
- Hall v R [2021] NSWCCA 220
- Hoskins v R [2021] NSWCCA 169
- Naveed v R [2019] NSWCCA 149
- Ngatamariki v R [2016] NSWCCA 155
- Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353
- McLaughlin v R [2013] NSWCCA 152
- MLP v R [2014] NSWCCA 183
- Dang v R [2014] NSWCCA 47
- Pham v R [2014] NSWCCA 115
- Vandeventer v R [2013] NSWCCA 33
- Sabbah v R [2020] NSWCCA 89
- Director of Public Prosecutions (Cth) v De La Rosa