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R v Houlton

R v Houlton

Case [2000] NSWCCA 183 17 August 2000

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CITATION: Regina v Houlton [2000] NSWCCA 183

FILE NUMBER(S): CCA 60716/99; 60237/00

HEARING DATE(S): 12.05.2000

JUDGMENT DATE:
17 August 2000

PARTIES :

Regina v Edward J Houlton

JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 2; Foster AJA at 3; Grove J at 45; James J at 46

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 94/51/0236

LOWER COURT JUDICIAL
OFFICER : Twigg DCJ

COUNSEL : P G Berman/M Grogan - Crown
T A Game SC - Appellant/Respondent

SOLICITORS: S E O'Connor - Crown
D J Humphreys - Applicant/Respondent

CATCHWORDS: Criminal Law - sentencing - particular offences - fraudulent misappropriation, Crimes Act 1900 s.178A - sentence not manifestly inadequate. - Criminal Law - sentencing - guilty plea.

LEGISLATION CITED: ss 178A and 558 of the Crimes Act 1900
5D of the Criminal Appeal Act 1912

CASES CITED:
R v Marvin, NSW CCA unreported 1/11/95
R v Todd (1982) 2 NSWLR 517 at 519-520
Director of Public Prosecutions v Hamman, CCA unreported 1/12/98

DECISION: Refer paras. 43 - 44..

IN THE COURT OF
CRIMINAL APPEAL

60716/99
60237/00

SPIGELMAN CJ
WOOD CJ at CL
FOSTER AJA
GROVE J
B M JAMES J
THURSDAY, 17 AUGUST, 2000

REGINA -V- Edward Joseph HOULTON

JUDGMENT
1    SPIGELMAN CJ: I agree with Foster AJA.
2    WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Foster AJA. I agree with his reasons and the orders he proposes.
3    FOSTER AJA: This is an appeal, pursuant to s. 5D of the Criminal Appeal Act 1912, by the Director of Public Prosecutions against sentences imposed on the respondent by Twigg DCJ at the Coffs Harbour District Court on 14 October 1999.
4 The respondent had pleaded guilty to five counts of fraudulent misappropriation (178A of the Crimes Act 1900) and had asked that the judge take into account a further 80 offences under the same section presented on a "Form 2". At the time of the commission of the offences, the respondent was a solicitor practising in Coffs Harbour. Each of the offences involved misappropriation of monies held on trust for clients. The maximum penalty prescribed by the section is 7 years penal servitude.
5 In respect of the first count in the indictment, his Honour, after taking into account the matters set out on the Form 2, imposed a sentence of 3 years imprisonment to be served by way of periodic detention commencing on 22 October 1999. As to the remaining four counts, the judge imposed a recognizance under s. 558 of the Crimes Act, self in the sum of $5,000 to be of good behaviour for a period of five years. There were several conditions to the recognizance, including supervision by the Coffs Harbour Adult Probation Service, not applying for a Solicitor's Practising Certificate or working as a para-legal or having sole administration of trust funds. In addition, the respondent was ordered to pay reparation in the sum 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 R v Houlton

Details

AGLC: R v Houlton [2000] NSWCCA 183
Case: [2000] NSWCCA 183
Decision Date: 17 August 2000

CaseChat Overview and Summary

The case of R v Houlton involved the respondent, Houlton, who was charged with fraudulent misappropriation under section 178A of the Crimes Act 1900. The nature of the dispute was the determination of an appropriate sentence for Houlton's criminal conduct, following his guilty plea. The matter was heard in the Court of Criminal Appeal. The central legal issues before the court were whether the sentence imposed by the primary judge was manifestly inadequate and whether the court should consider the guilty plea in its assessment of the sentence.

The court examined the sentencing principles applicable to the case, including the need for deterrence and the acknowledgment of the offender's responsibility through a guilty plea. The court noted that while the primary judge had exercised their discretion in sentencing, the sentence was not manifestly inadequate when considering the totality of the circumstances, including the offender's cooperation and remorse. The court further highlighted that the guilty plea was a significant factor in the sentencing process, as it demonstrated the offender's acceptance of responsibility for their actions.

In light of the above, the Court of Criminal Appeal found that the sentence imposed was not manifestly inadequate. The court acknowledged the primary judge's consideration of the offender's guilty plea and the overall circumstances of the case. The appeal was dismissed, and the original sentence was upheld. The court's decision emphasised the importance of proportionality and the recognition of an offender's cooperation and remorse in the sentencing process.

Orders