Citation: Regina v Horton [2005] NSWCCA 374
Court: NSW Court of Criminal Appeal
Date: 25 October 2005
Judge(s): McClellan CJ at CL; Adams J; Hoeben J
Background
The applicant pleaded guilty in the District Court to a series of offences committed in late 2003, including break and enter, assault occasioning actual bodily harm on a police officer, escaping lawful custody, and related dishonesty offences. He had an extensive prior criminal record, largely involving dishonesty offences and assaults on police, and his offending was connected to a long-standing heroin addiction.
Armitage DCJ sentenced the applicant to a total term of four years and six months, with a non-parole period of two years and six months commencing 2 February 2004. The sentencing judge also made orders specifying the conditions of the applicant's eventual parole release, including supervision, good behaviour, and participation in a non-religious drug and alcohol rehabilitation program.
The applicant sought leave to appeal, challenging the sentences on several grounds. He appeared unrepresented before the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by making advance parole conditions for sentences exceeding three years, given the limits in ss 50 and 51 of the Crimes (Sentencing Procedure) Act 1999
- Whether the utilitarian discount allowed for the guilty plea was appropriate
- Whether prior criminal record was correctly considered in assessing the moral culpability of the offender, and whether that question required resolution in this case
- Whether the overall sentences, including the degree of concurrency, were within the permissible sentencing discretion
- Whether it was an error to treat the offending as aggravated by the absence of conditional liberty at the time
Decision
Adams J, with McClellan CJ at CL and Hoeben J agreeing, dismissed the appeal on the merits of the sentences themselves. The utilitarian discount of 20 per cent for the guilty plea was found to be clearly appropriate, and there was no error in declining to give a larger discount. The facts showed that the sentences, both individually and in their concurrency, fell well within the sentencing discretion available to the District Court.
On the prior record question, McClellan CJ at CL noted that the relevance of an offender's prior record when sentencing had recently been considered in R v Hathaway [2005] NSWCCA 368. The Court acknowledged this remains an unresolved question that would require a five-judge bench, but found it unnecessary to resolve the issue here, as it did not affect the outcome.
The Court identified a clear legal error in the orders made below. Under ss 50 and 51 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court only has power to specify parole conditions in advance for sentences of three years or less. Because the applicant's sentences exceeded that threshold, the sentencing judge had no power to impose the parole conditions. Those conditions accordingly had to be vacated, leaving parole terms to the Parole Board when release fell due.
The applicant's remaining complaints were rejected. The Court noted he had only been released from his previous sentence for approximately six months before commencing this offending, and that he had not been dealt with as though he was in breach of conditional liberty at the time of the offences.
Orders Made
- Leave to appeal granted
- The orders requiring the applicant be released to parole and the conditions of that release were vacated
- Appeal otherwise dismissed
Key Takeaways
- Under ss 50 and 51 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court has no power to impose advance parole conditions where the total sentence exceeds three years; those conditions fall to be determined by the Parole Board at the time of release.
- In dismissing the substantive appeal, the Court of Criminal Appeal confirmed that the sentences imposed, including their extensive concurrency, were within the proper exercise of the sentencing discretion.
- A 20 per cent utilitarian discount for a guilty plea was found appropriate on the facts; no error arose from declining to grant a larger reduction.
- The unresolved question of how an offender's prior criminal record bears on moral culpability in the context of s 22D was again flagged as requiring a five-judge bench, but was left undecided because it was not necessary to resolve it on these facts.
- No error arose from declining to treat the absence of conditional liberty at the time of offending as a mitigating factor; the sentencing court had not treated the applicant as though he were in breach of parole, bail, or a bond.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21AD, 50, 51
Cases
- R v Hathaway [2005] NSWCCA 368
- R v Henry (1999) 46 NSWLR 346
- R v Ponfield (1999) 48 NSWLR 327
- Veen v The Queen (No 2) (1988) 164 CLR 465