Holden v R

Case [2008] NSWCCA 100

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Holden v R [2008] NSWCCA 100

FILE NUMBER(S):
2007/3059

HEARING DATE(S):
23 April 2008

JUDGMENT DATE:
9 May 2008

PARTIES:
Craig Leslie Holden
Regina

JUDGMENT OF:
Basten JA Barr J Buddin J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0039

LOWER COURT JUDICIAL OFFICER:
Woods DCJ

LOWER COURT DATE OF DECISION:
9 March 2007

COUNSEL:
T Gartelmann (Applicant)
Ms J Dwyer (Crown)

SOLICITORS:
SE O'Connor (Applicant)
S Kavanagh (Solicitor for Director of Public Prosecutions (Crown)

CATCHWORDS:
Criminal law - sentencing - offence of maliciously inflicting grievous bodily harm in company - Form 1 matters - parity - assertion of lack of due proportion with sentences imposed on other offenders

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Attorney-General’s application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Leach v The Queen [2007] HCA 3; 230 CLR 1
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Formosa [2005] NSWCCA 363
R v Hammoud (2000) 118 A Crim R 66
R v Howard (1992) 29 NSWLR 242
R v Jones (1993) 67 ALJR 376
R v MSS [2005] NSWCCA 227
R v Spinks [2007] NSWCCA 52
R v Storey [1998] 1 VR 359
Veen v The Queen [No2] (1988) 164 CLR 465 at 477

TEXTS CITED:

DECISION:
Leave to appeal granted.  Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3059

BASTEN JA
BARR J
BUDDIN J

FRIDAY 9 MAY 2008

CRAIG LESLIE HOLDEN v R

Judgment

  1. BASTEN JA:  For the reasons given by Buddin J, leave to appeal should be granted in this matter, but the appeal dismissed.  I would add some further observations in relation to the principle of parity, relied on by the applicant.

  2. The statement of Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 at 609, set out below at [23] states that “persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence”. However, it is not necessarily the case that each person engaged in a single joint enterprise will be sentenced on the same factual basis. That is because the sentencing court is able to sentence only on the basis of facts agreed or found by the court. When determining the facts as to the involvement of a particular offender, the court must be satisfied beyond reasonable doubt as to any aggravating circumstances: see Leach v The Queen [2007] HCA 3; 230 CLR 1 at [23] (Gleeson CJ) and [40]-[47] (Gummow, Hayne, Heydon and Crennan JJ). The criminal standard does not apply to mitigating or exculpatory circumstances, which may be proved on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) approving R v Storey [1998] 1…

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Details
AGLC
Holden v R [2008] NSWCCA 100
Case
[2008] NSWCCA 100
Decision Date

CaseChat Overview and Summary

The case of Holden v R concerns the sentencing of the applicant, Holden, for offences of assault occasioning actual bodily harm in company and common assault. The matter was heard by the sentencing judge, and the appeal against sentence was heard by the court. The applicant argued that the sentences imposed on him were disproportionate compared to the sentences imposed on his co-offenders. The court was required to determine whether the applicant's sentence was indeed disproportionate and whether there was a justifiable sense of grievance on the part of the applicant.

The court considered various factors in assessing the proportionality of the sentences. Firstly, it was noted that the applicant had received a 20% discount on his sentence due to his early plea, while his co-offenders, Moore and Dunphy, did not receive the same discount as they did not plead guilty until the day of their trial. The court found that this factor alone did not warrant a reduction in the applicant's sentence. The court also considered the severity of the offences committed by each of the co-offenders, the respective roles played by each in the commission of the offences, and the factual basis upon which each was sentenced. The court found that the applicant's role was more significant than that of his co-offenders, and that the factual basis upon which he was sentenced was more serious.

The court concluded that the applicant had not demonstrated that he had a justifiable sense of grievance by reason of the sentences which were imposed on his co-offenders. The court found that the combination of factors considered, including the severity of the offences, the respective roles played by each of the co-offenders, and the factual basis upon which each was sentenced, indicated that the applicant's complaint should be rejected.

The final orders of the court are not explicitly stated in the text, but it is likely that the appeal against sentence was dismissed and the original sentence imposed on the applicant was upheld.

Orders

Orders of the court

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Background

Background to the litigation

In reciting the factual background against which the applicant stood to be sentenced, I have relied heavily upon the agreed statement of facts which was before the sentencing judge.The factual background The first offence in time occurred on 7 April 2006 and involved the first of the matters on the Form 1 document, namely an offence of assault occasioning actual bodily harm in company. At the time, the applicant was sharing a room with four other men in a three bedroom house in Manly which was owned by the victim. The applicant had been living there for about three months. The premises were located above some shops. In order to gain access to the premises, one had to go through a timber gate and then up a flight of stairs. Four other men shared the room with the applicant and each of them was paying rent of $100 per week to live there. At about 10.45 pm on the night in question, the applicant returned to the premises with a number of his friends. The victim, who also resided at the premises, had told the applicant that morning that he did not want to have a large number of people in the premises. An argument ensued and the victim asked the applicant’s friends to leave. The applicant then punched the victim very hard with a closed fist to his left eye. The force of the blow caused the victim to fall over. The victim then walked down the hallway in an endeavour to leave the premises. The applicant approached him and swung a fist at him. As a consequence, the victim went into a bedroom and closed the door behind him. The applicant repeatedly kicked at the door which had no lock on it. The victim attempted to hold the door closed but eventually it was forced open causing the victim to fall backwards. The applicant and his friends entered the bedroom where they proceeded to kick the victim at least a dozen times in the head and legs. Someone also stomped on the victim’s face. Eventually another occupant of the premises entered the bedroom and the attack came to an end. The victim went to the nearby police station and reported the incident, although he had been warned against doing so. Police observed that the victim was bleeding from his left eye, from the left side of his nose and from the left side of his chin. He had a swollen left eye, a small cut to his left hand and a graze on his right foot. He also had what appeared to be a footprint on his forehead. Ambulance officers arrived and attended to the victim’s injuries. Police obtained an interim apprehended violence order against the applicant but were unable to serve it upon him at the time. As a result of this incident, the applicant, along with the four men with whom he shared the room, being his co-offenders Linton Moore, Kentaro Dunphy, Craig Steel and a man known only as Jordy, were evicted from the premises the following day. On 9 April at around midday the victim went with a friend to a hotel which was located near his premises. As they were about to enter the hotel, the applicant approached the victim from behind and attempted to “king hit” him. The victim was able to deflect the punch, whereupon the applicant said to him “I’m going to get you”. That conduct, which constituted a common assault, gave rise to the second matter on the Form 1 document.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is however one factor to be weighed in the balance that is in the applicant’s favour. He pleaded in the Local Court and, as a consequence, received a discount of 20% from the sentence which would have otherwise been imposed upon him. On the other hand, Moore and Dunphy did not plead guilty until the day of their trial. Although Judge Woods did not quantify the discount which he extended to them, it is reasonable to assume that they were not afforded the same measure of leniency on account of this factor as was the applicant.Conclusion The applicant has not, in my view, demonstrated that he has a justifiable sense of grievance by reason of the sentences which were imposed on the co-offenders Moore and Dunphy. In reaching that conclusion, I have borne steadily in mind the various features of the respective cases which I have just identified. Although there is a degree of overlap between some of those considerations, the combination of those factors is a powerful indication that the applicant’s complaint should be rejected and that is the conclusion which I favour. That leaves the argument concerning the sentence imposed upon the co-offender Steel. It is to be recalled that he was dealt with for a rather less serious offence. That of itself, as counsel for the applicant recognised, means that considerations of parity assume rather less significance: R v Howard (1992) 29 NSWLR 242; R v MSS [2005] NSWCCA 227 at par 18. Indeed the extent to which the principle of parity operates in such circumstances is still open to debate: see, for example, R v Formosa [2005] NSWCCA 363 at par 40; R v Spinks [2007] NSWCCA 52 at pars 28-31. It is not in issue that the factual basis upon which the co-offender Steel was sentenced was significantly different from the basis upon which the applicant stood for sentence. Furthermore, the statement of facts which were presented in the proceedings against Steel suggested that his role was considerably more benign than the facts presented in the case against the applicant would suggest it had been. For example, there is no reference in the statement of facts presented in the proceedings against Steel to his having done anything at all whilst he was in the premises. Even the victim’s injuries are described in the statement of facts presented in the proceedings against Steel in a much less graphic fashion than they had been in the material presented against the applicant. Be that as it may, Steel’s role, on any assessment of the situation, was properly to be regarded as being less significant than that of the applicant. Although Steel had an unrelated matter on the Form 1 document, there was nothing to suggest that it assumed anything like the seriousness of the matters on the Form 1 with which the applicant was confronted. Nor was he encumbered, as the applicant was, with a lengthy criminal record. Despite the fact that Steel was aged 40 at the time of the offence, he had only a minor record which consisted solely of offences of dishonesty. There was an offence in 2004 for which he was fined and a matter in 2005 in respect of which he was placed on a bond, albeit that it was current at the time of the present offence. Finally, his plea of guilty was treated by the sentencing judge as having been entered at the first available opportunity, thus entitling him “to the full benefit of that plea.”

Ratio Decidendi

Legal Principle Established

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