HARRISON v. REGINA [2006] NSWCCA 185

New South Wales Court of Criminal Appeal

CITATION: HARRISON v. REGINA [2006] NSWCCA 185 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Wednesday 3 May 2006

JUDGMENT DATE: 19 June 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Latham J at 76

DECISION: (1) The applicant be granted leave to appeal. (2) The appeal be allowed, so far as backdating the sentence as follows:- (a) Count 1: the applicant be re-sentenced to a fixed therm of imprisonment for three years to commence on 7 April 2005 and to expire on 6 April 2008; (ii) Count 2: the applicant be re-sentenced to a non-parole period of seven years to commence on 7 April 2007 and to expire on 6 April 2014 and an additional term of two years commencing on 7 April 2014 and expiring on 6 April 2016. (3) The earliest date upon which the applicant will be eligible for release on parole will be 7 April 2014.

CATCHWORDS: Charged with a co-offender of maliciously inflicting actual bodily harm on a female with intent to have sexual intercourse with her contrary to s.61K(a) Crimes Act 1900 (NSW) – charged with a co-offender of knowingly having non-consensual sexual intercourse with another female in circumstances of aggravation contrary to s.61JA(1)(c)(iii), those circumstances being that the applicant and the co-offender had deprived her of her liberty – applicant pleaded guilty to both charges – appeal against severity of sentence imposed – whether trial judge considered both delay and hardship as constituting special circumstances for the purposes of sentencing – whether failure to expressly refer to and consider individual matters going to hardship constitutes appellable error – the decision as to whether special circumstances exist in a particular case is first one of fact and secondly one of judgment – the sentencing judge had given thorough attention to the facts said to support a finding of hardship when determining the appropriate sentence – the absence of an express reference to the statutory ratio does not of itself indicate an intention on the part of a sentencing judge to impose a non-parole period in accordance with the statutory ratio – the sentencing judge must demonstrate that they have taken into account pre-sentence custody – the sentence must be expressed in terms which make plain that pre-sentence custody has been taken into account and how it has been taken into account – the sentences should have been backdated to commence from the date when the applicant was taken into custody – the sentencing judge's failure to consider matters in mitigation based on equivocal evidence did not result in manifestly excessive sentences