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R v Horne

R v Horne

Case [2005] QCA 218 22 June 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Horne [2005] QCA 218

PARTIES:

R
v
HORNE, David Clifford
(applicant)

FILE NO/S:

CA No 104 of 2005
DC No 21 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

22 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2005

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.     Application for leave to appeal against sentence granted
2.     Appeal allowed
3.     Sentence of three years imprisonment set aside
4.     In lieu thereof, applicant to be sentenced:
        (a)     on count 1, the break and enter offence, to         three years imprisonment suspended after 83 days         for an operational period of three years; and
        (b)     on count 2, the armed robbery offence, to         imprisonment for 83 days, with 83 days time in         custody being declared as time served, and then to         be released on probation under the supervision of an         authorized Corrective Services officer for a period of         two years and nine months
5.     A condition of the probation order is that the applicant make full restitution to the complainants of the sum of $750.00. Probation order will be in the usual terms in requiring a reporting condition within 24 hours of release

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - PROPERTY OFFENCES - where applicant was convicted on his own plea of guilty of one count of entering premises with intent to commit an indictable offence and one count of armed robbery in company - where offences had involved the taking of money with threats of violence from a hot bread shop - where no actual violence was involved and the amount of money taken amounted to $750 - where applicant had participated in an interview with police and identified his co-offender - where applicant originally sentenced to three years imprisonment to be suspended after nine months for an operational period of four years - whether learned sentencing judge gave adequate weight to the applicant's co-operation with the police and his apparently substantial prospects of rehabilitation - whether the sentence originally imposed was manifestly excessive

R v Gilles; ex parte Attorney-General [2000] QCA 503; [2002] 1 Qd R 404, cited
R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited
R v Perez-Vargas (1986) 8 NSWLR 559

R v Taylor & Napatali; ex parte Attorney-General [1999] QCA 323; (1999) 106 A Crim R 578, cited

COUNSEL:

P E Smith for applicant
R G Martin SC for respondent

SOLICITORS:

Compass Legal Solutions (Beenleigh) for applicant
Director of Public Prosecutions (Queensland) for respondent

KEANE JA: On 1st April 2005, the applicant was convicted upon his plea of guilty of one count of entering premises with…

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 [2005] QCA 218
Case: [2005] QCA 218
Decision Date: 22 June 2005

CaseChat Overview and Summary

In the case of R v Horne, the applicant, having pleaded guilty to charges of breaking and entering with intent to commit an indictable offence and armed robbery in company, appealed against his sentence. The offences in question involved the taking of money from a hot bread shop with threats of violence, but no actual violence was used, and the amount taken was $750. The applicant had cooperated with police by identifying his co-offender during an interview. Initially, he was sentenced to three years imprisonment, to be suspended after serving nine months, for an operational period of four years. The appeal focused on whether the sentencing judge had adequately considered the applicant's cooperation with the police and his prospects for rehabilitation, as well as whether the original sentence was manifestly excessive.

The court was tasked with determining whether the sentence imposed by the original judge was appropriate given the mitigating factors presented, such as the applicant's cooperation and prospects for rehabilitation. The legal issues included whether the sentence was manifestly excessive, and whether the judge had given adequate weight to the mitigating factors of the applicant's cooperation with the police and his rehabilitation prospects. The court examined precedents such as R v Gilles; ex parte Attorney-General and R v Hammond, which provided guidance on the appropriate consideration of mitigating factors and the concept of manifest excessiveness in sentencing.

The court found that the original sentence was indeed manifestly excessive, given the mitigating factors of the applicant's cooperation with the police and his prospects for rehabilitation. The court held that the sentencing judge had not adequately considered these factors, and that a more lenient sentence was warranted. Consequently, the court allowed the appeal, set aside the original sentence, and imposed a new sentence that reflected the mitigating factors more appropriately. The new sentence involved a three-year suspended imprisonment for the break and enter offence, with a probation order for the armed robbery offence that included conditions for restitution and supervision.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Sentence of three years imprisonment set aside

4. In lieu thereof, applicant to be sentenced:

(a) on count 1, the break and enter offence, to three years imprisonment suspended after 83 days for an operational period of three years; and

(b) on count 2, the armed robbery offence, to imprisonment for 83 days, with 83 days time in custody being declared as time served, and then to be released on probation under the supervision of an authorized Corrective Services officer for a period of two years and nine months

5. A condition of the probation order is that the applicant make full restitution to the complainants of the sum of $750.00. Probation order will be in the usual terms in requiring a reporting condition within 24 hours of release

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Horne [2005] QCA 218

Most Recent Citation

R v Getawan [2005] QCA 350

Cases citing this decision · 23 of 23 shown

R v Liu
[2024] QCA 58 Para 22

…n jail and had plans to live a law‑abiding future was relevant because it bore upon remorse and upon prospects of rehabilitation. [3] R v Horne [2005] QCA 218. Criminality…
Arulogun v Legal Services Commissioner
[2023] QDC 207 Para 7

…However it has also been held relevant that a person has remained out of trouble whilst on bail. Indeed, in R v Horne [2005] QCA 218 the Court of Appeal noted that it was an error for the Trial Judge not to have referred to the applicant’s unblemished record whilst on bail.…
Russell v Commissioner of Police
[2018] QDC 183 Para 1

…even where they have committed serious offences, should receive more lenience from courts than would otherwise be appropriate. [9][2007] QCA 47. [10][2005] QCA 218.…
Ross v The Commissioner of Police
[2016] QDC 205

…A 73 R v Ball [2012] QCA 51 R v Bryan ex-parte Attorney-General [2003] QCA 18 R v Edwards [2012] QCA 117 R v Hilton [2009] QCA 12 R v Horne [2005] QCA 218 R v Lude; R v Love [2007] QCA 319 R v Middleton and Johns (2006) 165 A Crim R 1; [2006] QCA 92 R v Mules [2007] QCA 47 R v Nievandt [2000] QCA 224 R v Tapiolas…
R v Maher
[2016] QCA 219 Para 15

…ey have committed serious offences … should receive more leniency from courts than would otherwise be appropriate.”” [14][2007] QCA 47. [15][2005] QCA 218. [16][2014] QCA 108 at [28] per Fraser JA and Boddice J. Internal citations omitted.…
Young v White
[2016] QDC 159

…rim R 505 – cited. R v Hopper ex parte Attorney General [2015] 2 Qd R 56 – applied. R v Horne [2005] QCA 218 – considered. R v Hurst [2014] QCA 168 – cited. R v KAJ, ex parte Attorney-General [2013] QCA 118 – cited. R v Law [1996] 2 Qd R 63 – cited. R v McCormack [1981] VR 104 – cited. R v McKeown [1940] St R Qd…
R v Maksoud
[2016] QCA 115 Para 3

…ent, made an observation to similar effect.[34] On that occasion, this Court’s decision in R v Bird and Schipper [35] was cited as authority. [32][2005] QCA 218. [33]At [21]. [34]At [12]. [35][2000] QCA 94; (2000) 110 A Crim R 394 at [33].…
Kues-Sales v Commissioner of Police
[2016] QDC 53 Para 1

…ctly speaking he is not entitled to the mitigating effect of co-operation which went that far.[2] [1] AB v R (1999) 198 CLR 111 at [113]; R v Horne [2005] QCA 218 at p 7. [2] R v Webber (2000) 114 A Crim R 381 at 384.…
R v Leighton
[2014] QCA 169 Para 1

…he youngest child is in the custody of her mother and her 13 year old daughter lives with the girl's father. [5][2006] QCA 305. [6][2003] QCA 374. [7][2005] QCA 218. [8]Ex 9.…
R v Hopper; Ex parte Attorney-General (Qld)
[2014] QCA 108 Para 1

…nsideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed.” [23][2005] QCA 218. [24][1959] Tas SR 17 at 21, which was cited with approval in R v Price [1978] Qd R 68 at 70 – 71 and R v Taylor and Napatali (1999) 106 A Crim R 578 at 583. [25][20…
R v Honeysett; ex parte
[2010] QCA 212 Para 1

…s of the assault that were otherwise unknown to the complainant or police: see AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [111]; R v Horne [2005] QCA 218 at p 7.…
R v Dietz
[2009] QCA 392 Para 1

…he balancing exercise between these competing considerations often makes the sentencing process difficult. It is particularly so in this instance. [8][2005] QCA 218 at [5]-[6]. [9][2006] QCA 176 at [27]. [10][2007] QCA 47 at [21]. [11][2009] QCA 153 at [26]-[28].…
R v Gibson
[2009] QDC 405

…75 R v Evans [2005] QCA 455 R v Hey; ex parte Attorney General [2006] QCA 23 R v Callaghan [2006] QCA 243 R v Dingle [2003] QCA 7 R v Horne [2005] QCA 218 R v Hart [2008] QCA 199 COUNSEL: Ms A Loode for the Crown Mr F Martin for the Defendant SOLICITORS: Director of Public Prosecutions Shannon Donaldson Province…
R v Kinersen-Smith & Connor; ex parte
[2009] QCA 153 Para 21

…[8] R v Mules [2007] QCA 47 at [21]; see also R v Horne [2005] QCA 218 at 5-6; R v Mladenovic; ex parte A-G (Qld) [2006] QCA 176 at [27].…
R v Turner
[2009] QCA 15

…“This Court’s decision in R v Horne [2005] QCA 218, … makes clear that youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed serious offences like these, should receive…
R v Mayall
[2008] QCA 202 Para 20

…A Crim R 570; [1999] QCA 323, R v Dullroy & Yates; ex parte A-G (Qld) [2005] QCA 219, and cases referred to therein. He also submitted that R v Horne [2005] QCA 218, R v Getawan [2005] QCA 350, and R v Perkins & Gooley [2005] QCA 377 supported his contention that a sentence of three years imprisonment for this of…
R v. Richardson ; ex parte A-G (Qld)
[2007] QCA 294 Para 1

…cing discretion was not informed or guided by the proposition advanced on behalf of the appellant. [3] R v Perez-Vargas (1986) 8 NSWLR 559; R v Horne [2005] QCA 218. [4]Unreported, Samios DCJ, 24 January 2006. [5]Unreported, Kingham DCJ, 22 September 2006.…
R v Lawley
[2007] QCA 243 Para 1

…sed between the offences and the sentence, real prospects for the rehabilitation of the offender had been established. That was not the case here. [7][2005] QCA 218.…
R v CX
[2006] QCA 409 Para 29

…[25][2005] QCA 218 at [29]-[31] (Keane JA).…
R v Morrow
[2006] QCA 305

…upervision on the applicants release from prison if the evidence had been before the court. R v Horne [2005] QCA 218; CA No 104 of 2005, 22 June 2005, considered R v Maniatis [1997] 1 Qd R 593, cited. R v Styles [2003] QCA 374; CA 202 of 2003, 15 August, 2 September 2003, considered COUNSEL: The applicant/appella…
R v Cay, Gersch and Schell; ex parte
[2005] QCA 467 Para 1

…ne .[4] [2][1999] QCA 323 at [15]; (1999) 106 A Crim R 578 at 583. [3][2005] QCA 219; CA No 111 and CA No 112 of 2005, 24 June 2005 at [55], [65]. [4][2005] QCA 218; CA No 104 of 2005, 22 June 2005.…
R v Perkins and Gooley
[2005] QCA 377 Para 1

…nd apparently successful efforts at rehabilitating themselves. [1][1994] QCA 147; CA No 29 of 1994, 13 May 1994. [2](1984) 154 CLR 606, 610 - 611. [3][2005] QCA 218; CA No 104 of 2005, 22 June 2005. [4][2005] QCA 350; CA No 188 of 2005, 23 September 2005.…
R v Getawan
[2005] QCA 350 Para 1

…bag of money to Mr Horne, and Mr Getawan and Mr Horne then ran out the rear door. [1]These facts are taken from the judgment of R v Horne [2005] QCA 218…

View all 23 citing cases →

Cases cited in this decision · 3 of 3 shown

R v Gilles; ex parte
[2000] QCA 503

…ntly substantial prospects of rehabilitation - whether the sentence originally imposed was manifestly excessive R v Gilles; ex parte Attorney-General [2000] QCA 503; [2002] 1 Qd R 404, cited R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited R v Perez-Vargas (1986) 8 NSWLR 559 R v Taylor & Napatali; ex parte At…
R v Taylor & Napatali; ex parte A-G (Qld)
[1999] QCA 323

…404, cited R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited R v Perez-Vargas (1986) 8 NSWLR 559 R v Taylor & Napatali; ex parte Attorney-General [1999] QCA 323; (1999) 106 A Crim R 578, cited COUNSEL: P E Smith for applicant R G Martin SC for respondent SOLICITORS: Compass Legal Solutions (Beenleigh) for app…
R v Hammond
[1996] QCA 508

…r the sentence originally imposed was manifestly excessive R v Gilles; ex parte Attorney-General [2000] QCA 503; [2002] 1 Qd R 404, cited R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited R v Perez-Vargas (1986) 8 NSWLR 559 R v Taylor & Napatali; ex parte Attorney-General [1999] QCA 323; (1999) 106 A Crim R 57…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Horne [2005] QCA 218
PARTIES:	R v HORNE, David Clifford (applicant)
FILE NO/S:	CA No 104 of 2005 DC No 21 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	22 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	22 June 2005
JUDGES:	Williams, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Sentence of three years imprisonment set aside 4. In lieu thereof, applicant to be sentenced: (a) on count 1, the break and enter offence, to three years imprisonment suspended after 83 days for an operational period of three years; and (b) on count 2, the armed robbery offence, to imprisonment for 83 days, with 83 days time in custody being declared as time served, and then to be released on probation under the supervision of an authorized Corrective Services officer for a period of two years and nine months 5. A condition of the probation order is that the applicant make full restitution to the complainants of the sum of $750.00. Probation order will be in the usual terms in requiring a reporting condition within 24 hours of release
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - PROPERTY OFFENCES - where applicant was convicted on his own plea of guilty of one count of entering premises with intent to commit an indictable offence and one count of armed robbery in company - where offences had involved the taking of money with threats of violence from a hot bread shop - where no actual violence was involved and the amount of money taken amounted to $750 - where applicant had participated in an interview with police and identified his co-offender - where applicant originally sentenced to three years imprisonment to be suspended after nine months for an operational period of four years - whether learned sentencing judge gave adequate weight to the applicant's co-operation with the police and his apparently substantial prospects of rehabilitation - whether the sentence originally imposed was manifestly excessive R v Gilles; ex parte Attorney-General [2000] QCA 503; [2002] 1 Qd R 404, cited R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited R v Perez-Vargas (1986) 8 NSWLR 559 R v Taylor & Napatali; ex parte Attorney-General [1999] QCA 323; (1999) 106 A Crim R 578, cited
COUNSEL:	P E Smith for applicant R G Martin SC for respondent
SOLICITORS:	Compass Legal Solutions (Beenleigh) for applicant Director of Public Prosecutions (Queensland) for respondent