Harris v R [2023] NSWCCA 44

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Harris v R [2023] NSWCCA 44 Hearing dates: 24 February 2023 Date of orders: 9 March 2023 Decision date: 09 March 2023 Before: Beech-Jones CJ at CL at [1] Yehia J at [30] Weinstein J at [31] Decision: (1) The applicant be granted leave to appeal; (2) The appeal be allowed; (3) The sentence imposed on the applicant in the District Court on 23 May 2022 be set aside, and in lieu thereof: (a) impose an aggregate sentence of 2 years and 10 months imprisonment to commence on 4 July 2022 and expire on 3 May 2025; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) set a non-parole period of 18 months; (c) specify that the earliest date the applicant will be eligible to be released on parole is 3 January 2024; (d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows: Sequences 1, 3–7 - imprisonment for 12 months. Sequences 2 and 8 - imprisonment for 10 months. (4) The order made under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on 24 February 2022 be set aside; (5) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the grounds appearing in s 8(1)(a) and (c) thereof the material identified in Schedule A hereof be suppressed; (6) Order 5 is to operate throughout the Commonwealth for a period of 10 years. SCHEDULE A Paragraphs 5−12 of the affidavit of Matthew Harris affirmed 9 February 2023; The first sentence of paragraph 7 of the affidavit of Danka Durovic affirmed 9 February 2023; Pages 1−2 up to but not including the words, "Further, would you …", of Annexure A to the affidavit of Carolyn Griffiths sworn 22 February 2023. Catchwords: CRIMINAL LAW ─ appeal ─ appeal against sentence ─ dishonestly obtaining and attempting to obtain a financial advantage by ─ existing sentence being served by applicant − totality principle ─ whether sentencing judge erred in accumulation of imposed sentence to existing sentence which resulted in a ratio of total non-parole period to total combined sentence of 80% ─ ratio substantially exceeding 75% not intended by sentencing judge ─ leave to appeal granted ─ appeal allowed ─ applicant resentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Cases Cited: Deakin v R [2014] NSWCCA 121 Haak v R [2022] NSWCCA 28 Lonsdale v R [2020] NSWCCA 267 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Category: Principal judgment Parties: Mathew Harris (Applicant) Crown (Respondent) Representation: Counsel: Mr T Ramrakha (Applicant) Ms E Wilkins SC (Respondent)