New South Wales Court of Criminal Appeal CITATION: HORTON, Garry Edward v R [2008] NSWCCA 72 HEARING DATE(S): 27 March 2008 JUDGMENT OF: McClellan CJ at CL at 15; Simpson J at 1; Price J at 16 EX TEMPORE JUDGMENT DATE: 27 March 2008 DECISION: (1) Appeal allowed. (2) Conviction and sentence quashed. (3) There be a new trial. CATCHWORDS: CRIMINAL LAW – appeal against conviction and sentence – guilty plea accepted in full satisfaction of indictment – whether conviction on basis of guilty plea ought to be quashed – complainant retracted complaint after conviction but prior to sentence – new trial ordered CATEGORY: Principal judgment PARTIES: Garry Edward HORTON (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/3953 COUNSEL: G D Wendler (Applicant) D Arnott SC (Respondent) SOLICITORS: Van Houten Law (Applicant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/2052 LOWER COURT JUDICIAL OFFICER: English DCJ IN THE COURT OF CRIMINAL APPEAL 2007/3953 McClellan CJ at CL SIMPSON J PRICE J 27 March 2008 HORTON, Garry Edward v R Judgment 1 SIMPSON J: The appellant appeals against his conviction of a single count of aggravated indecent assault. He was formally convicted of that offence by Knight DCJ on 25 September 2006, following his plea of guilty to the charge, which appeared as an alternative count on an indictment. The Crown accepted the plea in full satisfaction of the indictment. On that basis Knight DCJ formally entered the conviction. 2 The appellant was sentenced on 25 September 2007 to a term of imprisonment for 2 years and 9 months commencing 14 June 2007, the non-parole period of which will expire on 13 June 2008. 3 Notwithstanding that the appellant entered a plea of guilty to the charge, he now appeals against conviction, and the Crown concedes that the circumstances are such that the appeal ought to be allowed and the conviction quashed. 4 Having considered all of the circumstances, I am satisfied that the Crown concession is correctly made. The relevant circumstances may therefore be stated briefly. 5 The charge arose out of events which occurred on 10 March 2005. The appellant was then 50 years of age. The complainant, PT, was 22 years of age and suffered from cerebral palsy. He had both physical and intellectual impairment. 6 The appellant and the complainant became acquainted through their attendance at a Blue Mountains church. According to an agreed statement of facts that was placed before the sentencing judge, and which was finalised following extensive negotiations, the appellant invited the complainant to his home for lunch. Once inside, the appellant locked the door and provided lunch to the complainant. The complainant asked to use the toilet and the appellant led him towards it but diverted the complainant into his bedroom where he unzipped the complainant's pants and began to fondle his penis and testicles. This, according to the statement of facts, was done despite protests by the complainant. The complainant then left the unit. 7 A few days later he reported the incident to a woman who supervised a "Living Skills Course" which he attended and she, in turn, notified the complainant's father. The complainant's father and the complainant went to the police station and reported the incident. 8 The appellant was arrested on 22 April 2005 but declined to respond to questions about the allegations. 9 On 9 September 2007 English DCJ imposed the sentence I have mentioned above. 10 Prior to that date the complainant retracted his allegation against the appellant to the extent that he had asserted that the sexual activity between them was non-consensual. On or about 4 September 2007, he contacted the police officer in charge of the prosecution in order to retract the allegation. The police officer notified the solicitor from the Office of the Director of Public Prosecutions who was handling the prosecution. A conference was arranged, which was attended by the complainant, and two solicitors from the Office of the Director of Public Prosecutions. The complainant confirmed that there had been sexual activity between the two, but now said that it had been consensual. 11 English DCJ was informed but took the view that, since a conviction had already been entered by Knight DCJ, she was powerless to do other than proceed to sentence. 12 Whether that is the correct view of the law or not is of no present consequence. 13 That the appellant entered a plea of guilty is a consideration. However, that plea was entered after negotiations, the appellant having initially been charged with three offences. It is, in my opinion, beyond question that, in these circumstances, the appeal must be allowed and the conviction quashed. I would formally order a new trial, although whether there is to be a further trial is, of course, a matter for the Director of Public Prosecutions. 14 The orders I propose are: (1) Appeal allowed; (2) Conviction and sentence quashed; (3) There be a new trial. 15 MCLELLAN CJ at CL: I agree. 16 PRICE J: I also agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.