REGINA v HORTON [2005] NSWCCA 374

New South Wales Court of Criminal Appeal

REGINA v HORTON [2005] NSWCCA 374 CITATION: 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

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

Regina

PARTIES: v

Damien Peter HORTON (Applicant)

FILE NUMBER(S): CCA 2005/1173

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

S Kavanagh SOLICITORS: 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 v Hathaway [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 30 December 2003; and (vii) breaking and entering premises in Ronald Avenue, Greenwich and stealing property from the occupants. 4 The sentences imposed on the applicant were as follows: (i) in respect of offence (vii), a non-parole period of 2 years commencing on 2 February 2004 and expiring on 1 February 2006 and a parole period of 2 years commencing on 2 February 2006 and expiring on 1 February 2008;