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Benjamin Mark Holland v The Queen

Benjamin Mark Holland v The Queen

Case [2019] VSCA 173 5 August 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0199

BENJAMIN MARK HOLLAND	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2019
DATE OF JUDGMENT:	5 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 173
JUDGMENT APPEALED FROM:	[2018] VCC 897 (Judge Lawson)

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CRIMINAL LAW – Appeal – Sentence – False imprisonment – Common assault – Armed robbery – Applicant one of three co-offenders – Applicant sentenced to four years and six months’ imprisonment – Whether principle of parity infringed – Co-offenders differentiated – Disparity not marked or manifest – Leave to appeal refused – Collins v The Queen [2015] VSCA 106 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Lenthall	Ann Valos Criminal Law
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for the Director of Public Prosecutions

T FORREST JA
CROUCHER AJA:

On 16 April 2018, the applicant, Benjamin Holland, pleaded guilty in the County Court of Victoria to one charge of false imprisonment, one charge of common assault and one charge of armed robbery. The applicant was one of three co-offenders who were convicted in relation to the assault, false imprisonment and armed robbery of Peter Kearney on 14 to 15 September 2016.

The applicant conducted his plea together with one of his co-offenders, John Fonua, and both were sentenced by a judge of the County Court on 14 June 2018.[1] Fonua pleaded guilty to one charge of false imprisonment, one charge of common assault, one charge of armed robbery and one charge of possessing an imitation firearm while prohibited.
[1]DPP v Fonua [2018] VCC 897 (‘Reasons’).

Another co-offender, Bronwyn Holland, is the applicant’s sister. She had earlier pleaded guilty on 11 May 2017 to one charge of handling stolen goods, one charge of theft, one charge of false imprisonment, one charge of intentionally causing injury and one charge of armed robbery. She was sentenced by the same judge on

6 September 2017.[2] The charges for handling stolen goods and theft relate to offences committed earlier on 14 September 2016, which did not involve the applicant or Fonua.
[2]DPP v Holland [2017] VCC 1275 (‘Bronwyn Holland Reasons’).

The applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1.
False imprisonment

(common law)

10 years’ imprisonment

Crimes Act 1958 s 320
2 years’ imprisonment 6 months

2.
Common assault

(common law)

5 years’ imprisonment

Crimes Act 1958 s 320
1 year’s imprisonment 6 months

3.
Armed robbery

Crimes Act 1958

s 75A

25 years’ imprisonment
3 years and 6 months’ imprisonment Base

Total effective sentence: 4 years and 6 months’ imprisonment

Non-parole period: 2 years and 9 months

Pre-sentence detention: 459 days

Section 6AAA statement: 6 years’ imprisonment with a non-parole period of 4 years and 6 months

Other relevant orders: Forfeiture order

Charge	Offence	Maximum	Sentence	Cumulation
1.	False imprisonment (common law)	10 years’ imprisonment Crimes Act 1958 s 320	2 years’ imprisonment	6 months
2.	Common assault (common law)	5 years’ imprisonment Crimes Act 1958 s 320	1 year’s imprisonment	6 months
3.	Armed robbery Crimes Act 1958 s 75A	25 years’ imprisonment	3 years and 6 months’ imprisonment	Base
Total effective sentence:	4 years and 6 months’ imprisonment
Non-parole period:	2 years and 9 months
Pre-sentence detention:	459 days
Section 6AAA statement: 6 years’ imprisonment with a non-parole period of 4 years and 6 months
Other relevant orders: Forfeiture order

Fonua was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1.
False imprisonment

(common law)

10 years’ imprisonment

Crimes Act 1958 s…

Charge	Offence	Maximum	Sentence	Cumulation
1.	False imprisonment (common law)	10 years’ imprisonment Crimes Act 1958 s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Benjamin Mark Holland v The Queen

Details

AGLC: Benjamin Mark Holland v The Queen [2019] VSCA 173
Case: [2019] VSCA 173
Decision Date: 5 August 2019

CaseChat Overview and Summary

In the case of Benjamin Mark Holland v The Queen, the appellant sought to appeal against his sentence imposed by the County Court of Victoria. The appellant was one of three co-offenders who had committed the crimes of false imprisonment, common assault, and armed robbery. He was sentenced to four years and six months’ imprisonment. The appellant contended that the principle of parity was infringed as his sentence was harsher than that of his co-offenders. The Court of Appeal considered the principle of parity and the circumstances of the case.

The legal issues before the Court of Appeal were whether the appellant's sentence was manifestly disproportionate to that of his co-offenders, and whether the principle of parity was infringed. The Court considered the sentencing principles and the need to ensure that sentences are proportionate and just. The Court also examined the principle of parity, which requires that co-offenders receive similar sentences unless there are exceptional circumstances that justify a disparity.

The Court of Appeal held that the principle of parity was not infringed in this case. The Court found that there were exceptional circumstances that justified a disparity in the sentences of the co-offenders. The appellant was found to have played a more significant role in the crimes, and the Court considered the need for general and specific deterrence. The Court held that the disparity in the sentences was not marked or manifest, and that the appellant's sentence was proportionate to the gravity of the crimes committed. The Court refused the appellant's application for leave to appeal, following the decision in Collins v The Queen [2015] VSCA 106.

The Court of Appeal did not make any orders as the application for leave to appeal was refused. The appellant's sentence of four years and six months’ imprisonment was upheld.

Orders