R v Henare (No 2)

Case [2005] NSWCCA 367
CITATION:

R v Henare (No 2) [2005] NSWCCA 367
HEARING DATE(S): 27/10/2005
 
JUDGMENT DATE: 


10 November 2005

JUDGMENT OF:

McClellan CJ at CL at 1; Simpson J at 2; Hoeben J at 3
DECISION:

Application for leave to appeal refused.
PARTIES:

Lucas Jai Henare - Applicant
Crown - Respondent

FILE NUMBER(S):

CCA 1171/2005
COUNSEL:

H Dhanji - Appellant
P Ingram - Respondent
SOLICITORS:

SE O'Connor, Legal Aid Commission of NSW - Appellant
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


                          2005/1171
                          2005/1171a

                          McCLELLAN CJ at CL
                          SIMPSON J
                          HOEBEN J

                          Thursday, 10 November, 2005
REGINA v Lucas Jai HENARE (No 2)

Judgment


1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 SIMPSON J: I agree with Hoeben J.

3 HOEBEN J: The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed on him in the Drug Court on 24 November 2004 in respect of a break enter and steal offence which took place on 2 December 2002.

4 An appeal was also brought pursuant to s5AF in relation to matters in which the Drug Court imposed sentences pursuant to s12 of the Drug Court Act. That appeal was heard by me as a single judge sitting as the Court of Criminal Appeal in accordance with that section. I dismissed the appeal.

5 The only ground of appeal relied upon was as follows:

          “Ground 1 – In the event that the applicant’s appeal brought pursuant to s5AF is successful this Court would intervene in the appeal brought under s5(1)(c) to give effect to the sentencing judge’s stated intention.”

      That stated intention was that the same sentence should be imposed in relation to that offence as the final sentence imposed by the Drug Court pursuant to s12 of the Drug Court Act .

6 As the ground of appeal reveals, and as was accepted in oral submissions, if the appeal under s5AF failed this application for leave to appeal could not succeed.

7 Accordingly, the order which I propose is:


      (1) Application for leave to appeal be refused.
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Details
AGLC
R v Henare (No 2) [2005] NSWCCA 367
Case
[2005] NSWCCA 367
Decision Date

CaseChat Overview and Summary

The applicant, Lucas Jai Henare, sought leave to appeal against the sentence imposed on him by the District Court for a break and enter and steal offence that occurred on 2 December 2002. The application was brought under section 5(1)(c) of the Criminal Appeal Act 1912. The Court of Criminal Appeal was also asked to intervene in the appeal under section 5(1)(c) if the appeal under section 5AF was successful. The sole ground of appeal was that if the appeal under section 5AF was successful, the court should intervene in the appeal under section 5(1)(c) to give effect to the sentencing judge’s stated intention that the same sentence should be imposed in relation to the offence as the final sentence imposed by the Drug Court under section 12 of the Drug Court Act.

The legal issue for the Court of Criminal Appeal to determine was whether the application for leave to appeal should be granted in light of the outcome of the earlier appeal under section 5AF. The court had to consider whether the outcome of the earlier appeal would affect the success of the application for leave to appeal under section 5(1)(c).

The court held that if the appeal under section 5AF was unsuccessful, the application for leave to appeal under section 5(1)(c) could not succeed. Since the outcome of the appeal under section 5AF was a prerequisite for the success of the application for leave to appeal under section 5(1)(c), the application for leave to appeal had to be refused. The court dismissed the application for leave to appeal, and the order proposed was that the application for leave to appeal be refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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