R v Horne

Case [2004] NSWCCA 8

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v Jason Leslie HORNE [2004]  NSWCCA 8

FILE NUMBER(S):
60329/03

HEARING DATE(S):               10/2/04

JUDGMENT DATE: 19/03/2004

PARTIES:
REGINA (Appellant)
Jason Leslie HORNE (Respondent)

JUDGMENT OF:       Beazley JA O'Keefe J Bell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/41/0075

LOWER COURT JUDICIAL OFFICER:     Goldring DCJ

COUNSEL:
G Rowling (Crown)
P Byrne SC (Respondent)

SOLICITORS:
S Kavanagh
R Hill (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Justices Act 1902

DECISION:
1. Dismiss the appeal against the inadequacy of sentence imposed with respect to the offence of escaping from lawful custody, and confirm the sentence of eight months' imprisonment to date from 4 February 2003 and to expire on 3 October 2003
2. In respect of counts 2, 3, 4 and 5, allow the appeal and quash the sentences imposed in the District Court
3. In lieu thereof, in respect of counts 2, 3 and 4 substitute a sentence of four years and six months' imprisonment to commence on 4 October 2003. Those sentences will expire on 3 April 2008. In each case specify a non-parole period of two years and eight months. The non-parole period for each sentence will expire on 3 June 2006 and, but for the sentence to be imposed in respect of count 5, the Respondent would be eligible for consideration of release to parole on that date
4. In respect of count 5, substitute a sentence of six years' imprisonment to commence on 4 October 2003. That sentence will expire on 3 October 2009. Specify a non-parole period of three years and four months to date from 4 October 2003. The non-parole period will expire on 3 February 2007. The Respondent will be eligible for consideration for release on parole on that date

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL  

60329/03

BEAZLEY JA
O’KEEFE J
BELL J

Friday 19 March 2004

REGINA v Jason Leslie HORNE

Judgment

  1. BEAZLEY JA:  I agree with Bell J.

  2. O’KEEFE J:  I agree with Bell J.

  3. BELL J:  This is an appeal brought by the Director of Public Prosecutions against the inadequacy of sentences imposed on the Respondent by his Honour, Judge Goldring (the Judge) at the Wollongong District Court on 1 August 2003. On that occasion the Respondent appeared for sentence on one charge of escaping from lawful custody and four charges of breaking, entering and stealing in circumstances of aggravation (aggravated breaking, entering and stealing).

  4. The offence of escaping from lawful custody was charged pursuant to s 310D(a) of the Crimes Act 1900 and carries a maximum penalty of ten years’ imprisonment. The offence of aggravated breaking, entering and stealing is provided by s 112(2) of the Crimes Act and carries a maximum penalty of twenty years’ imprisonment.

  5. For the offence of escaping from lawful custody, the Respondent was sentenced to a term of imprisonment for eight months, commencing on 4 February 2003 and expiring on 3…

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Details
AGLC
R v Horne [2004] NSWCCA 8
Case
[2004] NSWCCA 8
Decision Date

CaseChat Overview and Summary

In the matter of R v Horne, the appellant was convicted of multiple offences including larceny, obtaining money by deception, and carrying a cutting weapon. The case was heard in the Local Court, where the appellant was sentenced to various terms of imprisonment. The appellant appealed the sentence, arguing that the sentence imposed was disproportionate compared to that of a co-offender. The appeal was heard in the higher court, which was required to determine whether the sentence was just and whether the appellant's grievances were justifiable.

The primary legal issue before the court was whether the disparity in sentencing between the appellant and a co-offender was justified. The court had to consider the appellant's criminal history, the nature of the offences committed, and the role of the appellant in the criminal activity. The appellant argued that the sentence imposed was disproportionate, particularly given the co-offender's reduced sentence due to their role as a minor participant. The Crown contended that the appellant had no justifiable sense of grievance as the co-offender's reduced sentence was not a factor in the appellant's sentencing.

The court examined the principles of sentencing proportionality and the role of mitigating factors in sentencing. It noted that while the appellant was a minor participant, the court had to balance this with other factors such as the appellant's failure to appear in court and the existence of arrest warrants. The court also considered the precedent set in R v Hodges, which dealt with a co-offender receiving a reduced sentence for an unfulfilled promise to provide evidence. However, the court found that the circumstances of Hodges were distinct from the present appeal. The court concluded that the appellant's grievances were not justifiable as the co-offender's sentence was not a relevant consideration in the appellant's sentencing.

The court upheld the sentence imposed by the Local Court, finding that the sentence was proportionate and took into account all relevant factors. The appeal was dismissed, and the original sentence stood.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Edwards came before the Local Court on 22 January 2003. In relation to the charge of larceny she was sentenced to six months’ imprisonment to date from 27 December 2002. In relation to the offences of taking and driving a conveyance without the consent of the owner, driving a conveyance taken without the consent of the owner, obtaining money by deception, and receiving/disposing of stolen property she was sentenced to concurrent terms of six months’ imprisonment. She was also convicted of carrying a cutting weapon for which she was sentenced to three months’ imprisonment to be served concurrently with the other sentences. A concurrent sentence of three months’ imprisonment was imposed in relation to the goods in custody matters. Conclusion It does not seem to me that the differences between the criminal records of the two were such as to justify disparate sentences if all else were equal. It is true that the Respondent committed offences while an escapee. However, Ms Edwards was subject to a s 9 bond at the date of the commission of the October 2002 offences. She was a person who had failed to appear at Court and for whom arrest warrants were in existence at the date of the July and October offences. The central issue on the hearing of the appeal related to the circumstance that Phelan DCJ arrived at a notional four year term for the aggravated breaking, entering and stealing offences on the basis of a finding that Melissa Edwards was a minor participant in the criminal offending. In the Crown’s submission, the Respondent could not have a justifiable sense of grievance had the Judge imposed a sentence of greater severity than one with a notional starting point of four years given that he did not have the benefit of a finding that he was a minor participant. In supplementary written submissions Mr Byrne SC, who appeared on behalf of the Respondent, contended: “Even where the sentence imposed upon a co-offender has been reduced because of considerations that the co-offender was not in fact entitled to have taken into account, that reduction is something which must be taken into account in determining the sentence to be imposed: R v Hodges (1997) 95 A Crim R 85.” Hodges seems to me to raise somewhat different considerations to those raised by this appeal. In that case a co-offender was given a significant discount because he had given an undertaking to give evidence on behalf of the Crown. He did not fulfil his undertaking satisfactorily but, nonetheless, the Crown did not bring an appeal pursuant to s 5DA of the Criminal Appeal Act 1912 (NSW). Hodges was sentenced after the co-offender and by a different Judge. He was sentenced to a significantly greater term than had been imposed upon the co-offender. Simpson J, in a judgment with which Hidden J agreed (Hunt CJ at CL dissenting), considered that an observer would perceive it to be a flawed system of justice that permits an offender to obtain a reduction in sentence, at least in part attributable to a promise to provide assistance which is not ultimately forthcoming, while another who makes no such promise receives no such reduction. Thus, Hodges had a sense of grievance that was, in the view of the majority, a justifiable one.

Ratio Decidendi

Legal Principle Established

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