Harris v R [2023] NSWCCA 44

Harris v R [2023] NSWCCA 44

The sentencing judge erred because, although he referred to totality, accumulation and special circumstances, he did not appreciate or advert to the fact that the accumulated sentence produced a combined non-parole period to total combined sentence ratio of 80%, substantially exceeding three-quarters. In those circumstances the error lay in the commencement date, the non-parole period, or both, and the Court was required to resentence the applicant.

Jurisdiction
Australia
Judgment Date
09 March 2023
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; District Court sentence set aside; applicant resentenced; interim suppression order set aside and replaced with a specific suppression order.
Legal Topics
['appeal Against Sentence' 'dishonestly Obtaining a Financial Advantage by Deception' 'attempt' 'totality Principle' 'accumulation of Sentences' 'non Parole Period' 'special Circumstances' 'suppression and Non Publication Orders']
['criminal Law' 'sentencing'] ['appeal Against Sentence' 'dishonestly Obtaining a Financial Advantage by Deception' 'attempt' 'totality Principle' 'accumulation of Sentences' 'non Parole Period' 'special Circumstances' 'suppression and Non Publication Orders']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in applying the principle of totality when sentencing the applicant for the subject offences.' 'Whether the accumulation of the new sentence on the existing sentence produced a combined non-parole period to total sentence ratio substantially exceeding 75% without the sentencing judge adverting to that circumstance.' 'Whether the applicant should be resentenced after error was established.']

Ratio Decidendi

The sentencing judge erred because, although he referred to totality, accumulation and special circumstances, he did not appreciate or advert to the fact that the accumulated sentence produced a combined non-parole period to total combined sentence ratio of 80%, substantially exceeding three-quarters. In those circumstances the error lay in the commencement date, the non-parole period, or both, and the Court was required to resentence the applicant.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence set aside; applicant resentenced; interim suppression order set aside and replaced with a specific suppression order.

Orders

  • ['The applicant be granted leave to appeal.' 'The appeal be allowed.' 'The sentence imposed on the applicant in the District Court on 23 May 2022 be set aside, and in lieu thereof impose an aggregate sentence of 2 years and 10 months imprisonment to commence on 4 July 2022 and expire on 3 May 2025.' 'Pursuant to s...