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Holder v Brennan

Holder v Brennan

Case [2014] ACTSC 195 14 August 2014

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CRISTY LEE HOLDER v DALE WAYNE BRENNAN
[2014] ACTSC 195 (14 August 2014)

APPEAL - IN GENERAL – Appeal against sentence – Whether being in company is an aggravating circumstance – Mere presence of an accomplice is not an aggravating factor – There must be an accepted relevance between the presence of an accomplice and the offending – Reasoning of Magistrate did not show why the presence was relevant – No relevance can be found on the facts – Appeal ground upheld

APPEAL - IN GENERAL – Appeal against sentence – Whether drug use correctly taken into account – Whether commission of offence while under the influence of drugs a relevant sentencing consideration – Discussion of principles relating to the relevance of drug addiction to sentencing – Appeal ground dismissed

APPEAL - IN GENERAL – Appeal against sentence – Whether mental impairment and history correctly taken into account – No automatic mitigation of sentence due to the presence of a mental impairment – Relevant connection must be shown between the impairment and the circumstances when allowance should be made for an impairment – No connection demonstrated – Appeal ground dismissed

APPEAL - IN GENERAL – Appeal against sentence – Whether sentence manifestly excessive – View of one court as to rehabilitation prospects do not inevitably bind another court – Sentences of imprisonment for past offences does not mean imprisonment must be imposed for subsequent offending – Sentencing manifestly excessive – Appeal upheld

Crimes Act 1900 (ACT), s 54(2)
Magistrates Court Act 1930 (ACT), s 216, Part 3.10, Div 3.10.2
Criminal Code 2002 (ACT), ss 310, 321

Brown v The Queen [2006] NSWCCA 144
Clarkson v The Queen (2011) 32 VR 361
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Elias v The Queen (2013) 248 CLR 483
Gore v The Queen (2010) 208 A Crim R 353
Groenewege v Tasmania [2013] TASCCA 7
Gyory v The Queen [2012] ACTCA 28
Hanania v The Queen [2012] NSWCCA 220
House v The King (1936) 55 CLR 499
Leach v The Queen (2008) 183 A Crim R 1
Mill v The Queen (1988) 166 CLR 59
Nevermann (1989) 43 A Crim R 347
Pettitt v Dunkley [1971] 1 NSWLR 376
Re Kulari [1978] VR 276
R v Ang [2014] ACTCA 17
R v BB [2013] ACTSC 290
R v Eisenach [2011] ACTCA 2
R v Henry (1999) 46 NSWLR 346
R v Flentjar [2013] SASCFC 11
R v Flowers [2014] ACTCA 13
R v Kissner (1993) 69 A Crim R 83
R v Koumis (2008) 18 VR 434
R v Morton (2010) 27 NTLR 114
R v Smith (1987) 44 SASR 587
R v Stewart (Unreported, New South Wales Court of Criminal Appeal, 2 October 1987)
R v Thomson (2000) 49 NSWLR 383
R v Verdins (2007) 16 VR 269
R v Yarwood (2011) 220 A Crim R 497
Shepherd v The Queen (1988) 94 FLR 55
Shrubsole v Rodriguez (1978) 18 SASR 233
Trueman v Tasmania [2009] TASSC 29
Veen v…

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 Holder v Brennan

Details

AGLC: Holder v Brennan [2014] ACTSC 195
Case: [2014] ACTSC 195
Decision Date: 14 August 2014

CaseChat Overview and Summary

The appeal in Holder v Brennan concerns an appeal against the sentence imposed on Cristy Lee Holder by a Magistrate. The appeal focuses on several aspects of the sentence, including the consideration of being in the company of an accomplice, drug use, mental impairment, and the overall severity of the sentence. The appellant argues that the Magistrate erred in various aspects of the sentencing process. The Court of Appeal was required to determine whether the Magistrate's reasoning for each of these aspects was sound and whether the sentence was manifestly excessive.

The court first considered whether the presence of an accomplice could be considered an aggravating factor. The court found that while the presence of an accomplice might generally be a relevant consideration, there must be a clear link between the presence of the accomplice and the offence. The court held that the Magistrate did not provide reasoning to show how the presence of an accomplice was relevant to the offending in this case, and thus the ground of appeal was upheld. The court also examined whether drug use was correctly taken into account, concluding that while drug use could be relevant, there was no clear indication that the offence was committed under the influence of drugs. Consequently, this ground of appeal was dismissed. Regarding mental impairment, the court determined that while such impairment may warrant consideration, there must be a relevant connection between the impairment and the circumstances of the offence for it to be mitigating. As no such connection was shown, this ground of appeal was also dismissed. Lastly, the court assessed whether the sentence was manifestly excessive. The court found that the Magistrate's view on the appellant's rehabilitation prospects did not necessarily bind the Court of Appeal and that previous imprisonment sentences did not mandate imprisonment for subsequent offences. The court concluded that the sentence was manifestly excessive and upheld this ground of appeal.

The appeal was upheld, and the sentence imposed on Cristy Lee Holder on 19 March 2014 was set aside. Cristy Lee Holder is to be re-sentenced, and the Court of Appeal directs that the sentencing considerations outlined above be properly addressed in the new sentencing process.

Orders

Orders of the court

1. The appeal be upheld.

2. The sentence imposed on Cristy Lee Holder on 19 March 2014 be set aside.

3. Cristy Lee Holder be re-sentenced.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Holder v Brennan [2014] ACTSC 195

Most Recent Citation

Cristy Lee Holder v Dale Wayne Brennan (No 2) [2014] ACTSC 383

Cases citing this decision · 3 of 3 shown

Beniamini v Craig
[2017] ACTSC 30 Para 1

…at, if necessary, an appeal court can understand the reasoning used by the sentencer and why the specific sentence has been imposed: Holder v Brennan [2014] ACTSC 195 at [77]-[82] and the cases there cited: Peverill v Crampton (No 2) [2011] ACTSC 175 at [26].…
In the matter of an application for bail by Stanley Connors
[2014] ACTSC 252 Para 1

…glary with a circumstance of aggravation. The circumstance may be either that the burglary was committed in company (as to which see Holder v Brennan [2014] ACTSC 195 at [64]-[66]) or when the offender had with him or her an offence weapon (as to which see R v Hamilton (1993) 66 A Crim R 575 at 577). In this case,…
Cristy Lee Holder v Dale Wayne Brennan (No 2)
[2014] ACTSC 383 Para 1

…er against a sentence of three months’ imprisonment imposed on her in the ACT Magistrates Court for an offence of minor theft. See Holder v Brennan [2014] ACTSC 195. The theft committed on 6 January 2013 was of two boxes containing digital video recorders each valued at $499 from a store in Fyshwick. Minor theft is…

View all 3 citing cases →

Cases cited in this decision · 28 of 28 shown

Walmsley v The Queen
[2014] ACTCA 24 Para 1

…he relevant principles in R v Verdins (2007) 16 VR 269 at 287; [82]. This decision has been followed in the ACT Court of Appeal: Walmsley v The Queen [2014] ACTCA 24 at [38]; R v Flowers [2014] ACTCA 13 at [5]; Gyory v The Queen [2012] ACTCA 28 at [12]. It has also been followed widely throughout Australia: Groene…
R v Ang
[2014] ACTCA 17 Para 1

…proceed accordingly to plead the grounds of appeal. See also Re Kulari [1978] VR 276; Hanania v The Queen [2012] NSWCCA 220 at [33]. See also R v Ang [2014] ACTCA 17 at [20]-[25].…
R v Flowers
[2014] ACTCA 13 Para 1

…(2007) 16 VR 269 at 287; [82]. This decision has been followed in the ACT Court of Appeal: Walmsley v The Queen [2014] ACTCA 24 at [38]; R v Flowers [2014] ACTCA 13 at [5]; Gyory v The Queen [2012] ACTCA 28 at [12]. It has also been followed widely throughout Australia: Groenewege v Tasmania [2013] TASCCA 7 at [3…
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] HCA 53 Para 1

…so that the offender, the general public and any appeal court knows the basis on which the offender has been sentenced. See Pettitt v Dunkley [1971] 1 NSWLR 376. In R v Kissner (1993) 69 A Crim R 83, however, the New South Wales Court of Criminal Appeal referred with approval to what Hunt J said in R v Stewar…
R v BB
[2013] ACTSC 290 Para 1

…These principles are well-known and have been followed in many decisions of courts in this jurisdiction and elsewhere. See, for example, R v BB [2013] ACTSC 290 at [26]; Clarkson v The Queen (2011) 32 VR 361.…
Groenewege v Tasmania
[2013] TASCCA 7 Para 1

…owers [2014] ACTCA 13 at [5]; Gyory v The Queen [2012] ACTCA 28 at [12]. It has also been followed widely throughout Australia: Groenewege v Tasmania [2013] TASCCA 7 at [30]; R v Flentjar [2013] SASCFC 11 at [43]; R v Yarwood (2011) 220 A Crim R 497 at 506-7; [24]; R v Morton (2010) 27 NTLR 114 at 126; [50]; Weste…
Elias v The Queen
[2013] HCA 31

…Brown v The Queen [2006] NSWCCA 144 Clarkson v The Queen (2011) 32 VR 361 Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 Elias v The Queen (2013) 248 CLR 483 Gore v The Queen (2010) 208 A Crim R 353 Groenewege v Tasmania [2013] TASCCA 7 Gyory v The Queen [2012] ACTCA 28 Hanania v The Queen [2012] NSWCCA 220 House v The King (1…
R v Flentjar
[2013] SASCFC 11 Para 1

…The Queen [2012] ACTCA 28 at [12]. It has also been followed widely throughout Australia: Groenewege v Tasmania [2013] TASCCA 7 at [30]; R v Flentjar [2013] SASCFC 11 at [43]; R v Yarwood (2011) 220 A Crim R 497 at 506-7; [24]; R v Morton (2010) 27 NTLR 114 at 126; [50]; Western Australia v SJH (2010) 200 A Crim R…
Hanania v R
[2012] NSWCCA 220 Para 1

…helpful if appellants bear this in mind and proceed accordingly to plead the grounds of appeal. See also Re Kulari [1978] VR 276; Hanania v The Queen [2012] NSWCCA 220 at [33]. See also R v Ang [2014] ACTCA 17 at [20]-[25].…
Gyory v The Queen
[2012] ACTCA 28 Para 1

…ion has been followed in the ACT Court of Appeal: Walmsley v The Queen [2014] ACTCA 24 at [38]; R v Flowers [2014] ACTCA 13 at [5]; Gyory v The Queen [2012] ACTCA 28 at [12]. It has also been followed widely throughout Australia: Groenewege v Tasmania [2013] TASCCA 7 at [30]; R v Flentjar [2013] SASCFC 11 at [43];…
Clarkson v The Queen
[2011] VSCA 157 Para 1

…well-known and have been followed in many decisions of courts in this jurisdiction and elsewhere. See, for example, R v BB [2013] ACTSC 290 at [26]; Clarkson v The Queen (2011) 32 VR 361.…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.…
Trueman v Tasmania
[2009] TASSC 29 Para 1

…Nevertheless, as Crawford CJ said in Trueman v Tasmania [2009] TASSC 29 at [32]…
McCullough v R
[2009] NSWCCA 94

…by a failure to understand the approach that is to be adopted to s 21A(2) in light of the numerous decisions in this Court in that regard: see McCullough v The Queen (2009) 194 A Crim R 439. 101.I agree with Adams J that it is not sufficient for a court simply to refer to an aggravating factor in the section without considerin…
R v Koumis
[2008] VSCA 84 Para 1

…While it is necessary for the reasons to record the findings as to the circumstances of the offence ( R v Koumis (2008) 18 VR 434 at 439; [63]), it does not seem to me to be necessary, especially in a Magistrates Court, to provide all the reasoning that leads to those findings unless they are contentious or otherwi…
Leach v The Queen
[2008] NSWCCA 73 Para 1

…2011) 220 A Crim R 497 at 506-7; [24]; R v Morton (2010) 27 NTLR 114 at 126; [50]; Western Australia v SJH (2010) 200 A Crim R 228 at 246; [81]-[82]; Leach v The Queen (2008) 183 A Crim R 1 at 5-6; [10].…
R v Verdins
[2007] VSCA 102 Para 1

…Reliance was placed on the articulation of the relevant principles in R v Verdins (2007) 16 VR 269 at 287; [82]. This decision has been followed in the ACT Court of Appeal: Walmsley v The Queen [2014] ACTCA 24 at [38]; R v Flowers [2014] ACTCA 13 at [5]; Gyory v The Queen [2012] ACTCA 28 at [12]. It has also been f…
Brown v Regina; Reid v Regina
[2006] NSWCCA 144 Para 1

…ourt would be considering referring her to the Magistrates Early Referral into Treatment (MERIT) program, which decisions such as Brown v The Queen [2006] NSWCCA 144 at [4]-[5], [49]-[50], suggest that no more serious penalty than a suspended sentence would be imposed after successfully completing the MERIT program.…
R v Tadrosse
[2005] NSWCCA 145

…ncing Procedure) Act 1999 (NSW) based upon an understanding that generally the provisions were not intended to change the common law. In R v Tadrosse (2005) 65 NSWLR 740 it was stated that, if a court takes into account an aggravating feature that was not available at common law, then the court is probably using s 21A…
Wong v The Queen
[2001] HCA 64 Para 1

…an element of qualitative assessment which may be antithetical to the instinctive synthesis which is required of sentencers by decisions such as Wong v The Queen (2001) 202 CLR 584 at 611; [76].…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 1

…lution of defined issues both factual or legal”. The difference between the two cannot be taken too far, for, as Spigelman CJ said in R v Thomson (2000) 49 NSWLR 383 at 394; [42], there is a similarity between sentencing remarks and judgments in, at least, the need to provide reasons for the decision.…
R v Henry
[1999] NSWCA 111 Para 1

…He referred to the principles articulated by Wood CJ at CL said in R v Henry (1999) 46 NSWLR 346 at 397-8; [273]-[274] in relation to the relevance of drug addiction to sentencing. These may be summarised as follows:…
Kissner v The Queen
[1994] HCATrans 59 Para 1

…ender, the general public and any appeal court knows the basis on which the offender has been sentenced. See Pettitt v Dunkley [1971] 1 NSWLR 376. In R v Kissner (1993) 69 A Crim R 83, however, the New South Wales Court of Criminal Appeal referred with approval to what Hunt J said in R v Stewart (Unreported, New Sout…
Shepherd v The Queen
[1990] HCA 56 Para 1

…The common law was that, in relevant circumstances, the commission of an offence in company could aggravate the seriousness of the offence. See Shepherd v The Queen (1988) 94 FLR 55 at 64. Certain circumstances, however, need to be present for that to apply.…
Mill v The Queen
[1988] HCA 70 Para 1

…her on one occasion or consecutively where there is a reason why a later sentence should be moderated because of an earlier one. See Mill v The Queen (1988) 166 CLR 59 at 62-7. Neither of these circumstances pertain here; his Honour was sentencing Ms Holder for one offence only and no relevant earlier sentence had b…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…sed for Ms Holder’s previous offending which, of course, would breach the principles that the High Court has established in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477. In my view, the sentence was manifestly excessive.…
House v R
[1936] HCA 40 Para 1

…round asserting that inadequate weight has been given to a relevant consideration is not a specific error of the kind referred to in House v The King (1936) 55 CLR 499 at 505. As the Court of Appeal has made clear in R v Eisenach [2011] ACTCA 2 at [43], such matters are only, at best, particulars of the ground that…
House v The King
63 WN 176 Para 1

…be noted that a ground asserting that inadequate weight has been given to a relevant consideration is not a specific error of the kind referred to in House v The King (1936) 55 CLR 499 at 505. As the Court of Appeal has made clear in R v Eisenach [2011] ACTCA 2 at [43], such matters are only, at best, particulars of the g…

Legislation cited in this decision · 3

Crimes Act 1900 (ACT)
54(2) 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
216 2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention