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Court of Criminal Appeal 10 November 2005

R v Henare (No 2)

[2005] NSWCCA 367

DrugsTheft & property

Citation: R v Henare (No 2) [2005] NSWCCA 367
Court: NSW Court of Criminal Appeal
Date: 10 November 2005
Judge(s): McClellan CJ at CL, Simpson J, Hoeben J

Background

The applicant had been sentenced in the Drug Court on 24 November 2004 for a break, enter and steal offence that occurred on 2 December 2002. The Drug Court had also imposed sentences under section 12 of the Drug Court Act in relation to separate matters.

Two appeals arose from those proceedings. The first, brought under section 5AF of the Criminal Appeal Act 1912, concerned the section 12 Drug Court sentences and was heard by Hoeben J sitting as a single judge of the Court of Criminal Appeal. That appeal was dismissed. The second, brought under section 5(1)(c) of the same Act, concerned the sentence for the break, enter and steal offence and is the subject of this judgment.

The applicant argued that the sentencing judge had expressed an intention to impose the same sentence on the break, enter and steal count as whatever final sentence the Drug Court imposed under section 12. The section 5(1)(c) appeal was therefore framed as contingent on the success of the section 5AF appeal.

  • Whether leave to appeal under section 5(1)(c) of the Criminal Appeal Act 1912 should be granted in respect of the sentence imposed for the break, enter and steal offence
  • Whether the outcome of the section 5(1)(c) application was dependent on the result of the related section 5AF appeal

Decision

The sole ground of appeal under section 5(1)(c) was entirely conditional. The applicant conceded in oral submissions that if the section 5AF appeal failed, the section 5(1)(c) application could not succeed either.

Hoeben J, with whom McClellan CJ at CL and Simpson J agreed, noted that the section 5AF appeal had already been dismissed by him as a single judge. That dismissal removed the only foundation on which the section 5(1)(c) application rested.

Because the precondition to the leave application had not been met, the Court had no basis on which to intervene. Leave to appeal was refused.

Orders Made

  • Application for leave to appeal refused.

Key Takeaways

  • A ground of appeal framed as entirely conditional on the success of a related appeal will necessarily fail if that related appeal is dismissed.
  • The Court of Criminal Appeal confirmed that where an applicant expressly accepts the contingent nature of an appeal ground, the court will hold the applicant to that concession.
  • Under section 5AF of the Criminal Appeal Act 1912, a single judge of the Court of Criminal Appeal may hear and determine appeals concerning Drug Court sentences imposed under section 12 of the Drug Court Act.
  • Refusing leave to appeal under section 5(1)(c), the Court did not examine the merits of the underlying sentence independently, given that the stated ground afforded no separate basis for intervention.
  • This decision illustrates that structuring an appeal ground as wholly contingent on another appeal carries a significant procedural risk: the failure of the primary appeal automatically extinguishes the contingent ground.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), sections 5(1)(c) and 5AF
- Drug Court Act 1998 (NSW), section 12

Cases:
- R v Henare (No 1) (the related section 5AF appeal, decided by Hoeben J as single judge, referenced within the judgment but not separately cited)