Citation: Regina v Jason Leslie Horne [2004] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 19 March 2004
Judge(s): Beazley JA, O'Keefe J, Bell J
Background
The respondent was sentenced in the Wollongong District Court on 1 August 2003 on one charge of escaping from lawful custody and four charges of breaking, entering and stealing in circumstances of aggravation (aggravated breaking, entering and stealing). The circumstance of aggravation in each of the four property offences was that they were committed in company with the respondent's de facto wife. The offences involved forced entry into private homes on the Southern Tablelands between late June and mid-July 2002, with substantial property stolen and interiors ransacked.
The respondent had also asked the sentencing judge to take into account thirteen additional offences recorded on a Form 1 document, including further aggravated breaking and entering offences, vehicle-related offences, and a standalone property offence from 2001. He had separately escaped from Mannus Correctional Centre in October 2002 and was arrested eight days later in a stolen vehicle.
The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentences imposed in the District Court were inadequate.
Legal Issues
- Whether the sentences imposed by the District Court for the four counts of aggravated breaking, entering and stealing were manifestly inadequate.
- Whether the District Court erred in not imposing a heavier sentence on the count to which the Form 1 offences were attached, compared to the remaining counts.
- Whether the sentence for escaping from lawful custody was also inadequate.
- How the principle of parity applied, given that the respondent's co-offender had already been sentenced by a different District Court judge.
Decision
The Court of Criminal Appeal dismissed the Crown's appeal in relation to the escape from custody offence, confirming the eight-month sentence. However, the Court found that the sentences for the four aggravated breaking, entering and stealing offences were manifestly inadequate, and allowed the appeal on those counts.
Bell J, with whom Beazley JA and O'Keefe J agreed, held that the appropriate starting point for the aggravated property offences (absent the Form 1 matters) was six years' imprisonment. The Court accepted that the four principal sentences should run concurrently with one another, partly to preserve proportionality with the sentence imposed on the co-offender. However, Bell J noted that the sentencing judge for the co-offender had also erred by not distinguishing the count to which the Form 1 offences were attached, and that the Court of Criminal Appeal should not repeat that error on resentencing.
For the three counts not carrying the Form 1 matters, the Court substituted sentences of four years and six months' imprisonment. For the count to which the thirteen Form 1 offences were attached, the Court increased the sentence to six years' imprisonment, with a starting point of eight years before adjustment, to reflect the additional criminality those offences represented.
Orders Made
- The appeal against the adequacy of the escape from lawful custody sentence was dismissed; the sentence of eight months' imprisonment (4 February 2003 to 3 October 2003) was confirmed.
- In respect of counts 2, 3, 4 and 5, the appeal was allowed and the District Court sentences were quashed.
- For counts 2, 3 and 4: sentences of four years and six months' imprisonment substituted, commencing 4 October 2003, expiring 3 April 2008, with a non-parole period of two years and eight months (expiring 3 June 2006).
- For count 5: a sentence of six years' imprisonment substituted, commencing 4 October 2003, expiring 3 October 2009, with a non-parole period of three years and four months (expiring 3 February 2007); the respondent to be eligible for parole consideration from 3 February 2007.
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge must distinguish, at least in terms of sentence length, the count to which Form 1 offences are attached from counts that carry no such additional matters.
- Where a co-offender has already been sentenced and that sentence contained an error, the appellate court on resentencing the principal offender is not bound to repeat the same error in the interests of parity.
- The District Court's original effective total sentence of three years and eight months' imprisonment (with a non-parole period of two years and four months) for four serious aggravated property offences and thirteen additional offences was held to be manifestly inadequate.
- Concurrent sentences across multiple counts of the same offence can be appropriate to maintain proportionality with a co-offender's sentence, but this does not remove the obligation to reflect additional criminality on any one count.
- The maximum penalty for aggravated breaking, entering and stealing under s 112(2) of the Crimes Act 1900 is twenty years' imprisonment; the Court treated six years as the lowest appropriate starting point for these offences on the facts presented.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 154A(1)(a), 154A(1)(b), 310D(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 37
- Criminal Appeal Act 1912 (NSW)
- Justices Act 1902 (NSW)
Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Allpass (1994) 72 A Crim R 561
- R v Dickson [2002] NSWCCA 327; 132 A Crim R 137
- R v Hammoud (2000) 118 A Crim R 66
- R v McIvor [2002] NSWCCA 490
- R v Ponfield (1999) 48 NSWLR 327
- R v Robinson [2000] NSWCCA 182
- R v Steff (1997) 96 A Crim R 1
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Tisilandis [1982] 2 NSWLR 430