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R v Horne

R v Horne

Case [2017] ACTSC 36 10 February 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Horne
Citation:	[2017] ACTSC 36
Hearing Date:	7 December 2016
DecisionDate:	10 February 2017
Before:	Refshauge J
Decision:	1. Luke Andrew Horne be convicted of aggravated burglary committed on 21 January 2016. 2. Luke Andrew Horne be sentenced to two years imprisonment to commence on 10 February 2017. 3. Luke Andrew Horne be convicted of theft committed on 21 January 2016. 4. Luke Andrew Horne be sentenced to 13 months imprisonment to commence on 10 April 2018. 5. That is a total sentence of two years and three months. 6. That sentence be suspended from 10 February 2017 for two years and three months. 7. Luke Andrew Horne be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years and three months, with the following conditions: (a) a probation condition that he accept supervision, by the Director-General or her delegate, for a period of two years, or such a lesser period as the person supervising him deems to be appropriate, and that he obey all reasonable directions of that person, especially as to rehabilitation for illicit drug use; and (b) that he undergo urinalysis when reasonably required within the next 12 months by the person supervising him. 8. Luke Andrew Horne be directed to report to the office of ACT Community Corrections, Level 1, 249 London Circuit, Canberra City, before 5:00pm 10 February 2017. 9. Luke Andrew Horne be directed to pay compensation in the sum of $4171 within 2 years to Mr John Muehlki.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – theft – intent to steal – consideration of breach – long gap in criminal history – prospects for rehabilitation – particularised subjective circumstances – specific deterrence – general deterrence
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 36 Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), ss 308, 311(1)(a), 312
Cases Cited:	Ashdown v The Queen [2011] VSCA 408; 219 A Crim R 454 Bugmy v the Queen [2013] HCA 37; 249 CLR 571 Fusimalohi v The Queen [2012] ACTCA 49 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v the Queen [2005] HCA 25; 228 CLR 357 Pearce v The Queen (1998) 194 CLR 610 Rees v The Queen [2012] ACTCA 6 R v Collins [2004] ACTSC 73 R v Ellis (1993) 68 A Crim R 449 R v Fleet (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 11 December 2012) R v Hawkins [2015] ACTSC 333 R v Huynh [2005] NSWCCA 220 R v Kelly [2016] ACTSC 281 R v Kristiansen [2015] ACTSC 159 R v McMahon [2014] ACTSC 280 R v Ogilvie (No 3) [2016] ACTSC 381 R v Pogson [2012] NSWCCA 225; 82 NSWLR 60 R v Simonds [2013] ACTCA 13 R v Spencer

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 R v Horne

Details

AGLC: R v Horne [2017] ACTSC 36
Case: [2017] ACTSC 36
Decision Date: 10 February 2017

CaseChat Overview and Summary

Luke Andrew Horne was convicted of aggravated burglary and theft, committed on 21 January 2016. The case was heard in the Supreme Court of the Australian Capital Territory, where the court was required to decide on the appropriate sentence considering the crime's severity, Horne's criminal history, and his potential for rehabilitation. The central legal issues revolved around the nature and gravity of the offences, the specific and general deterrence of crime, and the consideration of Horne's personal circumstances, including a significant gap in his criminal activities prior to this incident.

The court meticulously assessed the evidence and arguments presented, concluding that the crimes were serious but did not warrant a custodial sentence immediately. The court recognised the aggravated burglary and theft as significant breaches of the law, necessitating punishment, but also acknowledged Horne's particularised subjective circumstances, such as his long gap in criminal history and prospects for rehabilitation. In delivering the sentence, the court balanced the need for specific deterrence against Horne's potential to reform and contribute positively to society. The court found that a suspended sentence, coupled with stringent supervision and rehabilitation requirements, would serve the interests of justice.

Horne was convicted of both offences and sentenced to two years imprisonment for the aggravated burglary, to be suspended for two years and three months, and 13 months imprisonment for the theft, to be served consecutively and also suspended for two years and three months. The total effective sentence was two years and three months, to commence on 10 April 2018. Horne was also required to comply with Good Behaviour Obligations, including probation supervision, regular urinalysis, and the payment of compensation to the victim. The court's decision aimed to achieve a balance between punishment and rehabilitation, considering Horne's personal circumstances and the broader objectives of sentencing.

Orders

Orders of the court

1. Luke Andrew Horne be convicted of aggravated burglary committed on 21 January 2016.

2. Luke Andrew Horne be sentenced to two years imprisonment to commence on 10 February 2017.

3. Luke Andrew Horne be convicted of theft committed on 21 January 2016.

4. Luke Andrew Horne be sentenced to 13 months imprisonment to commence on 10 April 2018.

5. That is a total sentence of two years and three months.

6. That sentence be suspended from 10 February 2017 for two years and three months.

7. Luke Andrew Horne be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years and three months, with the following conditions:

(a) a probation condition that he accept supervision, by the Director-General or her delegate, for a period of two years, or such a lesser period as the person supervising him deems to be appropriate, and that he obey all reasonable directions of that person, especially as to rehabilitation for illicit drug use; and

(b) that he undergo urinalysis when reasonably required within the next 12 months by the person supervising him.

8. Luke Andrew Horne be directed to report to the office of ACT Community Corrections, Level 1, 249 London Circuit, Canberra City, before 5:00pm 10 February 2017.

9. Luke Andrew Horne be directed to pay compensation in the sum of $4171 within 2 years to Mr John Muehlki.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Horne [2017] ACTSC 36

Most Recent Citation

R v Forrest (No 2) [2017] ACTSC 83

Cases citing this decision · 18 of 18 shown

Director of Public Prosecutions v Saunders
[2025] ACTSC 160

…278 DPP v Steep [2024] ACTSC 326 Le Clair v The Queen [2017] ACTCA 19 R v Dawson [2022] ACTSC 64 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Horne [2017] ACTSC 36 R v Verdins [2007] VSCA 102; 16 VR 269 Williams-Savage v The Queen [2022] ACTCA 58 Simonds v The Queen [2013] ACTCA 13…
Director of Public Prosecutions v Jacka
[2024] ACTSC 376

…2024] NSWCCA 42 Mill v The Queen (1988) 166 CLR 59 Nasrallah v R [2021] NSWCCA 207; 105 NSWLR 451 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Horne [2017] ACTSC 36 R v Jacka [2017] ACTSC 225 R v Murphy [2021] ACTSC 94…
Director of Public Prosecutions v Welsh (No 3)
[2024] ACTSC 179

…022] ACTSC 54 R v Catanzariti [2020] ACTSC 326 R v Crawford (No 1) [2020] ACTSC 245 R v Dugdale [2017] ACTSC 203 R v Hagen [2022] ACTSC 362 R v Horne [2017] ACTSC 36 R v KS [2022] ACTSC 133; 18 ACTLR 160 R v Knight [2021] ACTSC 165 R v Livas (No 2) [2020] ACTSC 116 R v Lovelock [2020] ACTSC 161 R v Lutze [2020] AC…
R v Connors
[2022] ACTSC 374

…1992) 76 A Crim R 58 R v Govinden [1999] NSWCCA 118; 106 A Crim R 314 R v Hancock [2021] ACTSC 52 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Horne [2017] ACTSC 36 R v Kilic [2016] HCA 48; 259 CLR 256 R v Kristiansen [2015] ACTSC 159 R v Kristiansen [2017] ACTSC 292 R v Kristiansen [2017] ACTSC 37 R v Lock [2016…
R v George
[2021] ACTSC 361

…9 R v Dowling (No 2) [2021] ACTSC 200 R v Elphick [2021] ACTSC 9 R v F [1998] TASSC 74 R v Forrest (No 2) [2017] ACTSC 83 R v Horne [2017] ACTSC 36 R v John [2017] ACTSC 144 R v Kilic [2016] HCA 48; 259 CLR 256 R v Mathews [2020] ACTSC 364 R v McHughes (No 3) [2021] ACTSC 344 R v Molina (1984) 2 FCR 508 R v Seymou…
R v McHughes (No 3)
[2021] ACTSC 344 Para 1

…alendar. Many decisions have identified the relevant factors to be considered. See, for example, R v Roux (No 2) [2015] ACTSC 361 at [74] , R v Horne [2017] ACTSC 36 at [18]–[22] , R v McMahon (No 2) [2017] ACTSC 299 at [51] , R v Bessant [2020] ACTSC 365 at [16] , R v Elphick [2021] ACTSC 9 at [113] and R v Hanco…
R v Goolagong (No 2)
[2021] ACTSC 131 Para 1

…mises are frequently treated as being more serious than burglaries at commercial premises”, an approach which has since been adopted in R v Horne [2017] ACTSC 36 at [22] (per Refshauge J) and R v Forrest (No 2) [2017] ACTSC 83.…
R v Collins (No 2)
[2021] ACTSC 262 Para 1

…y be imposed. I will approach such statistics with the care that is required and not rely on them more than their information deserves: see R v Horne [2017] ACTSC 36 at [49]-[53].…
R v Reid (No 1)
[2021] ACTSC 334 Para 1

…Nevertheless, such statistics can be of assistance but need to be considered with care: see R v Horne [2017] ACTSC 36 at [49]-[53]. I will apply that approach.…
R v Foster
[2021] ACTSC 229 Para 1

…at the end of, the more restrictive period of the response to the COVID-19 pandemic, there may not have been many, but certainly some: see R v Horne [2017] ACTSC 36 at [22].…
R v Hancock
[2021] ACTSC 52 Para 1

…Taking into the account the decision in R v Ponfield and decisions in this Court such as R v Horne [2017] ACTSC 36 at [18]-[22], R v McMahon (No 2) [2017] ACTSC 299 at [51], and R v Bessant [2020] ACTSC 365 at [16], the following factors seem appropriate to consider:…
R v Slattery
[2021] ACTSC 154 Para 1

…e was a confrontation. People should feel safe in their homes. Many victims of burglaries feel violated. These are matters of aggravation ( R v Horne [2017] ACTSC 36 at [18]-[22]).…
R v Novakovic (a.k.a. Noland) (No 1)
[2021] ACTSC 62

…uffy [2014] ACTCA 53; 297 FLR 359 R v Forrest (No 2) [2017] ACTSC 83 R v Hawkins [2015] ACTSC 333 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Horne [2017] ACTSC 36 R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 Simonds v The Queen [2013] ACTCA 13 Smith v O'Dell [2016] ACTSC 176 Wong v The Queen [2001] HCA 64; 207…
R v Mathews
[2020] ACTSC 364

…R v Crawford (No 1) [2020] ACTSC 245 R v Forrest (No 2) [2017] ACTSC 83 R v Hawkins [2015] ACTSC 333 R v Horan [2020] ACTSC 189 R v Horne [2017] ACTSC 36 R v Kaihea [2020] ACTSC 17 R v Mathews [2019] ACTSC 262 R v McMahon [2014] ACTSC 280 R v McMahon (No 2) [2017] ACTSC 299 R v Pahl [2017] ACTSC 68 R v Sila [2015]…
R v Bennett; R v Simonds
[2020] ACTSC 221

…R v BC [2019] ACTSC 233 R v Bright [2017] ACTSC 328 R v Horne [2017] ACTSC 36 R v John [2017] ACTSC 144 R v Johnstone [2016] ACTSC 112 R v McCurley [2020] ACTSC 140…
R v Crawford (No 1)
[2020] ACTSC 245 Para 1

…the premises entered, if not otherwise charged, and the level of premeditation or planning: see R v Pahl (No 2) [2017] ACTSC 155 at [15]; R v Horne [2017] ACTSC 36 at [18]-[22]. Other matters include the level of inconvenience caused and whether items of particular sentimental or similar value are taken: see R v H…
R v BC
[2019] ACTSC 233 Para 1

…1 other than that the offence occurred on a residential, rather than commercial premises, although the prosecution cited Refshauge J in R v Horne [2017] ACTSC 36 ( Horne ) at [22]:…
R v Forrest (No 2)
[2017] ACTSC 83 Para 1

…In R v Horne [2017] ACTSC 36 at [18]-[22], I discussed some of these issues and addressed the offence of theft, but especially the offence of burglary. I said:…

View all 18 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Ogilvie (No 3)
[2016] ACTSC 381 Para 1

…the responsibility of the corrections officers to ensure the safety of prisoners whose sentences they are required to administer: R v Ogilvie (No 3) [2016] ACTSC 381 at [14]. Indeed, as Weinberg J said in R v Collins [2004] ACTSC 73 at [15], when it was suggested that an offender should not be imprisoned because o…
R v Kelly
[2016] ACTSC 281 Para 1

…ired to cancel a Good Behaviour Order made when that sentence of imprisonment was suspended because those offences breached that order. See R v Kelly [2016] ACTSC 281.…
R v Hawkins
[2015] ACTSC 333 Para 1

…In R v Hawkins [2015] ACTSC 333 at [48]-[51], I explained the gravity of the offences of burglary and theft, which are a serious problem for our community. People should be able to feel safe in their homes and know that their property, for which they may well have worked hard to acquire, and sometimes which has mor…
R v Kristiansen
[2015] ACTSC 159 Para 1

…Mr Horne applied for admission to the Karralika Therapeutic Community, an agency I have described in R v Kristiansen [2015] ACTSC 159 at [12]-[14]. He was assessed on 14 December 2016 but was found to be unsuitable, mainly because of concerns about his capacity to participate in group work within the Program. He wa…
R v Wilkins
[2015] ACTSC 145 Para 1

…within the Program. He was referred to the Arcadia House Program (which I have described in R v Spencer [2014] ACTSC 364 at [25]-[28] and R v Wilkins [2015] ACTSC 145 at [40]-[41]).…
R v T M
[2014] ACTSC 394 Para 1

…hile in custody. See, for example, R v Fleet (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 11 December 2012); and R v TM [2014] ACTSC 394.…
R v Spencer
[2014] ACTSC 364 Para 1

…out his capacity to participate in group work within the Program. He was referred to the Arcadia House Program (which I have described in R v Spencer [2014] ACTSC 364 at [25]-[28] and R v Wilkins [2015] ACTSC 145 at [40]-[41]).…
R v McMahon
[2014] ACTSC 280 Para 1

…the sentence for the more serious offence adequately punishes the offender for the whole of the criminality committed, as I explained in R v McMahon [2014] ACTSC 280 at [94]. Of course, separate sentences must be imposed on each offence to meet proper sentencing principles: Pearce v The Queen (1998) 194 CLR 610 at…
Bugmy v The Queen
[2013] HCA 37 Para 1

…ough he did spend some periods back in the family home. This seriously disadvantaged childhood is relevant to his sentencing: Bugmy v the Queen [2013] HCA 37; 249 CLR 571 at 592-3; [37], 594-5; [43]-[44].…
Simonds v The Queen
[2013] ACTCA 13 Para 1

…y, the burglary of residential premises, as opposed to the burglary of commercial premises, is a more serious version of the offence. See R v Simonds [2013] ACTCA 13 at [54]. In this case, although the premises were residential premises, the fact that it was a separate, basement garage in to which Mr Horne and Mr…
Fusimalohi v The Queen
[2012] ACTCA 49 Para 1

…There is no tariff for burglary or aggravated burglary, as explained by Burns and Lander JJ in Fusimalohi v The Queen [2012] ACTCA 49 at [15]. Nevertheless, I pointed out at [51] in the same decision, without contradiction, that the sentences in this Court for burglary of residential premises generally range from…
R v Pogson
[2012] NSWCCA 225 Para 1

…are obviously good prospects of his reform and there is a public interest interdicting this return to criminality before it escalates. See R v Pogson [2012] NSWCCA 225; 82 NSWLR 60 at 85-6; [115]. It seems to me that the opportunity to fashion a sentence that recognises the reform achieved, and the opportunity for t…
Rees v The Queen
[2012] ACTCA 6 Para 1

…ces (judged by the penalties imposed) since March 2002. Such a gap is a significant matter, as pointed out by the Court of Appeal in Rees v The Queen [2012] ACTCA 6 at [2].…
Ashdown v The Queen
[2011] VSCA 408 Para 1

…lective wisdom of ... judges” ( R v Ellis (1993) 68 A Crim R 449 at 460), and must be viewed with care, they can, as noted in Ashdown v The Queen [2011] VSCA 408; 219 A Crim R 454 at 511; [151](31), “throw some light on sentencing patterns for a particular offence, and thus provide some window on the accumulated e…
Hogan v Hinch
[2011] HCA 4 Para 1

…n services. It provides a real challenge for the courts, who are faced with offenders, whose reform is, as French CJ has pointed out in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32], the surest guarantee of the protection of society, that such offenders cannot be provided with assistance in reaching that…
R v Huynh
[2005] NSWCCA 220 Para 1

…The theft was a serious example of the offence because of the value of the property that was stolen. See R v Huynh [2005] NSWCCA 220 at [27], [31]. The owner was deprived of some quite valuable property and the loss of which would likely have interfered with his recreational activities to a disturbing degree, althou…
Markarian v The Queen
[2005] HCA 25 Para 1

…statutory penalties are required to be observed by the courts as a yardstick of the seriousness of the offences committed. See Markarian v the Queen [2005] HCA 25; 228 CLR 357 at 372; [30]-[31]. Thus, these offences are serious offences; the aggravated burglary is a very serious offence.…
R v Collins
[2004] ACTSC 73 Para 1

…of prisoners whose sentences they are required to administer: R v Ogilvie (No 3) [2016] ACTSC 381 at [14]. Indeed, as Weinberg J said in R v Collins [2004] ACTSC 73 at [15], when it was suggested that an offender should not be imprisoned because of a risk in prison, in that case an asserted risk of sexual assault…
Pearce v The Queen
[1998] HCA 57 Para 1

…ahon [2014] ACTSC 280 at [94]. Of course, separate sentences must be imposed on each offence to meet proper sentencing principles: Pearce v The Queen (1998) 194 CLR 610 at 624; [46]-[47].…

Legislation cited in this decision · 2

Crimes (Sentencing) Act 2005 (ACT)
33, 36, 7 4 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention