Regina v Horton - [2005] NSWCCA 374

CITATION:
REGINA v HORTON [2005] NSWCCA 374
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 October 2005

JUDGMENT DATE:

25 October 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Adams J at 2; Hoeben J at 28

DECISION:
Leave to appeal granted; The orders requiring that the applicant be released to parole and the conditions of that release are vacated; Appeal dismissed

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 ss 21AD, 50, 51

CASES CITED:
R v Hathaway [2005] NSWCCA 368
R v Henry (1999) 46 NSWLR 346
R v Ponfield (1999) 48 NSWLR 327
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES:
Regina
v
Damien Peter HORTON (Applicant)

FILE NUMBER(S):
CCA 2005/1173

COUNSEL:
Mr J Bennett SC (Crown)
Applicant in person

SOLICITORS:
S Kavanagh
Applicant unrrepesented

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0404; 04/11/1191; 04/11/1193

LOWER COURT JUDICIAL OFFICER:
Armitage DCJ

IN THE COURT OF

CRIMINAL APPEAL

05/1173

McCLELLAN CJ AT CL

ADAMS J

HOEBEN J

TUESDAY 25 OCTOBER 2005

REGINA v Damien Peter HORTON

JUDGMENT

1 McCLELLAN CJ at CL: I agree. As Adams J pointed out, the question of the relevance of an offender's prior record when being sentenced is a matter that was considered by this Court in R vHathaway [2005] NSWCCA 368. The central issue is whether or not the moral culpability of an offender, referred to in the joint judgment in Veen V The Queen (No 2) (1988) 164 CLR 465 raises for consideration, in the context of s 22D an offender's prior record when considering the criminality of the offence.

2 As the Chief Justice said in Hathaway, this is an issue that may require resolution but it would be necessary, if this were to occur, to convene a five-person bench. I agree with Adams J that as in Hathaway the issue does not require resolution in this case. I agree with the orders, which his Honour proposes. Accordingly, the orders of the Court will be as indicated by Adams J.

3 ADAMS J: The applicant seeks leave to appeal from sentences imposed in the District Court on 22 December 2004. He pleaded guilty to the following charges:

(i) on 26 November 2003, attempted break and enter of premises in Wunda Road, Concord West, with intent to steal;

(ii) on 26 November 2003, assaulting Constable Tomlinson, a police officer in the execution of his duty;

(iii) on 26 November 2003 assaulting Constable Curteis in the execution of her duty, thereby causing actual bodily harm;

(iv) on 26 November 2003, did escape from the lawful custody of Constables Tomlinson and Curteis;

(v) on 21 October 2003, breaking and entering premises in Sydney Street, Willoughby and stealing property from the occupants;

(vi) on a Form 1, taken into account on offence (iv), possessing an implement of housebreaking at Concord West on 26 November 2003 and breaking and entering premises in Balgowlah on…

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 Regina v Horton

Details

AGLC: Regina v Horton [2005] NSWCCA 374
Case: [2005] NSWCCA 374
Decision Date: 25 October 2005

CaseChat Overview and Summary

In Regina v Damien Peter Horton, the applicant appealed against his sentence imposed by the District Court, seeking leave to appeal on the grounds of severity. The applicant, who had an extensive criminal record, was convicted of multiple offences including attempted break and enter, assault on police officers, and escape from lawful custody. The District Court sentenced the applicant to an overall term of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months. The Court of Criminal Appeal considered the applicant's appeal and the legal issues involved in the appeal process. The central legal issue was whether the applicant's prior criminal record could be considered an aggravating factor under the Crimes (Sentencing Procedure) Act 1999. The Court of Criminal Appeal found that the issue did not require resolution in this case, as the applicant's complaints were without foundation. The Court also found that the sentencing judge had erred in imposing parole conditions on the applicant, as the sentences were greater than three years' duration. The Court granted leave to appeal, vacated the orders requiring the applicant's release to parole and the conditions of that release, but dismissed the appeal otherwise. The Court of Criminal Appeal's decision highlights the importance of correctly applying the law when sentencing an offender and the need for the Court to carefully consider the relevant factors in each case.

Orders