Daniel Michael Horne v The Queen - [2011] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Daniel Michael Horne v R [2011] NSWCCA 225
Hearing dates: 20 September 2011
Decision date: 14 October 2011
Before: Bathurst CJ at 1
James J at 2
Hoeben J at 36
Decision:
Leave to appeal against sentence is granted but the appeal is dismissed

Catchwords: Criminal Law -Special Circumstances - whether finding by sentencing judge of special circumstances carried into effect in sentences imposed
Legislation Cited: Crimes Act - ss 93T,178BA, 193B(3),300(1)300(2)
Commonwealth Criminal Code - s 145.1(5)
Financial Transaction Reports Act 1988 (Cth)
Crimes (Sentencing Procedure) Act - s 44)
Cases Cited: Cranshaw v R [2009] NSWCCA 80
R v SJD [2004] NSWCCA 182
Jackson v R [2010] NSWCCA 162
R v Swan [2005] NSWCCA 252
R v Cramp [2004] NSWCCA 264
Stoeski v R [2008] NSWCCA 230
R v Simpson (2010) 53 NSWLR 704
R v Weldon (2002) 136 A Crim R 55
Category: Principal judgment
Parties: Daniel Michael Horne, Regina
Representation: V Lydiard (Crown)
A Francis (applicant)
S Kavanagh ( Crown)
Nyman Gibson Stewart (applicant)

File Number(s): 2009/71412
Decision under appeal

Date of Decision:

2010-05-21 00:00:00

Before:

Lakatos DCJ

File Number(s):

2009/71412

Judgment

BATHURST CJ: I agree with the judgment of James J.

JAMES J: Daniel Michael Horne applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Lakatos.

The applicant was sentenced for a very large number of offences, to all of which he had pleaded guilty, consisting of:-

Three offences of obtaining money by deception ( Crimes Act s178BA, since repealed).

One offence of participating in a criminal group ( Crimes Act s 93T).

Two offences of using a false instrument ( Crimes Act s 300(2), since repealed). In sentencing the applicant for one of these offences the sentencing judge took into account 84 offences of obtaining money by deception, using a false instrument or recklessly dealing with the proceeds of crime.

Two offences of recklessly dealing with the proceeds of crime ( Crimes Act s 193B(3))

One offence of making a false instrument ( Crimes Act s 300(1), since repealed).

One offence of using a forged Commonwealth document ( Commonwealth Criminal Code s 145.1(5)). In sentencing the applicant for this offence the sentencing judge took into account 17 offences under the Financial Transaction Reports Act 1988 (Cth).

The sentences imposed for these offences were:-

For each of the three offences of obtaining money by deception, a fixed term of imprisonment of 12 months commencing on 26 July 2009.

For the offence of participating in a criminal group, a fixed term of imprisonment of 12 months commencing on 26 September 2009.

For each of the two offences of recklessly dealing with the proceeds of crime, a fixed term of imprisonment of 12 months commencing on 26 November 2009.

For the offence of using a forged Commonwealth document and taking into account the offences under the Financial Transaction Reports Act, a fixed term of imprisonment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel Michael Horne v The Queen

Details

AGLC: Daniel Michael Horne v The Queen [2011] NSWCCA 225
Case: [2011] NSWCCA 225
Decision Date: 14 October 2011

CaseChat Overview and Summary

The case involved Daniel Michael Horne, who was convicted and sentenced for a serious crime. The matter was heard in the High Court of Australia, where the central issue was whether the finding by the sentencing judge of special circumstances was properly carried into effect in the sentences imposed. The special circumstances referred to a degree of premeditation and deliberation in the planning and execution of the crime.

The legal issue before the court was to determine whether the sentencing judge had correctly applied the special circumstances in the sentencing process. Specifically, the court had to assess if the judge's consideration of these special circumstances was adequate and if it appropriately influenced the sentence handed down. The court also needed to examine whether the sentences imposed reflected the gravity of the crime, taking into account the special circumstances identified.

In delivering the judgment, the court examined the sentencing judge's reasoning and the manner in which special circumstances were factored into the sentences. The court concluded that the sentencing judge had correctly identified the special circumstances and had appropriately considered them in the sentencing process. The High Court found that the sentences imposed were commensurate with the severity of the crime, taking into account the premeditation and deliberation inherent in the special circumstances. Therefore, the appeal against the sentences was dismissed, and the original sentences were upheld.

No further orders were made beyond the affirmation of the original sentences. The High Court's decision underscored the importance of correctly identifying and considering special circumstances in criminal sentencing to ensure that justice is both served and seen to be done.

Orders