R v Henare [2005] NSWCCA 366

New South Wales Court of Criminal Appeal

CITATION: R v Henare [2005] NSWCCA 366

HEARING DATE(S): 27/10/2005

JUDGMENT DATE: 10 November 2005

JUDGMENT OF: Hoeben J at 1

DECISION: Appeal dismissed.

CATCHWORDS: Appeal from final sentences imposed by Drug Court - sentencing principles - utilitarian value of plea of guilty - weight to be given to subjective factors.

Crimes Act, 1900 LEGISLATION CITED: Criminal Appeal Act, 1912 Drug Court Act, 1998

R v Simpson [2001] NSWCCA 534 CASES CITED: R v Sutton [2004] NSWCCA 225 R v Thomson and Houlton (2000) 49 NSWLR 383

Lucas Jai Henare - Appellant PARTIES: Crown - Respondent

FILE NUMBER(S): CCA 1316/2005

H Dhanji - Appellant COUNSEL: PG Ingram - Respondent

SEO'Connor, Legal Aid Commission of NSW - Appellant SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2003/0211

LOWER COURT JUDICIAL OFFICER: Dive DCJ

IN THE COURT OF CRIMINAL APPEAL

1316/2005

HOEBEN J

Thursday, 10 November, 2005 REGINA v Lucas Jai HENARE Judgment

1 HOEBEN J: This appeal is brought pursuant to s5AF of the Criminal Appeal Act 1912 to a single Judge of the Court sitting as the Court of Criminal Appeal. The appellant appeals against sentences imposed on him in the Drug Court on 24 November 2004 pursuant to s12 of the Drug Court Act (the Act). These were final sentences in accordance with the Act. 2 Before proceeding further, it is useful to set out the legislative framework of the Act. The matters which have come before me pursuant to s5AF of the Criminal Appeal Act were dealt with by the Drug Court pursuant to a scheme of sentencing set up by the Act. In relation to these offences the appellant first came before his Honour Judge Barnett DCJ pursuant to s7 of the Act. That section applies to the conviction and sentencing of a person who has pleaded guilty and has been assessed as suitable to enter a program under the Act. Applying that section, his Honour imposed initial sentences and suspended execution of those sentences for the duration of the program. Section 11 provides for the termination of the offender's program either because it has been successfully completed or because the Drug Court is satisfied that there is no useful purpose to be served by the offender's further participation in it. The Drug Court then determines a final sentence in accordance with s12 of the Act.