R v Henare (No 2)

[2005] NSWCCA 367

CITATION:	R v Henare (No 2) [2005] NSWCCA 367
HEARING DATE(S):	27/10/2005
JUDGMENT DATE:	10 November 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Hoeben J at 3
DECISION:	Application for leave to appeal refused.

PARTIES:	Lucas Jai Henare - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 1171/2005
COUNSEL:	H Dhanji - Appellant P Ingram - Respondent
SOLICITORS:	SE O'Connor, Legal Aid Commission of NSW - Appellant S Kavanagh - Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2003/0211
LOWER COURT JUDICIAL OFFICER:	Dive DCJ

2005/1171
2005/1171a

McCLELLAN CJ at CL
SIMPSON J
HOEBEN J

Thursday, 10 November, 2005

REGINA v Lucas Jai HENARE (No 2)

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 SIMPSON J: I agree with Hoeben J.

3 HOEBEN J: The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed on him in the Drug Court on 24 November 2004 in respect of a break enter and steal offence which took place on 2 December 2002.

4 An appeal was also brought pursuant to s5AF in relation to matters in which the Drug Court imposed sentences pursuant to s12 of the Drug Court Act. That appeal was heard by me as a single judge sitting as the Court of Criminal Appeal in accordance with that section. I dismissed the appeal.

5 The only ground of appeal relied upon was as follows:

“Ground 1 – In the event that the applicant’s appeal brought pursuant to s5AF is successful this Court would intervene in the appeal brought under s5(1)(c) to give effect to the sentencing judge’s stated intention.”

That stated intention was that the same sentence should be imposed in relation to that offence as the final sentence imposed by the Drug Court pursuant to s12 of the Drug Court Act .

6 As the ground of appeal reveals, and as was accepted in oral submissions, if the appeal under s5AF failed this application for leave to appeal could not succeed.

7 Accordingly, the order which I propose is:

(1) Application for leave to appeal be refused.

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