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Holland (a pseudonym) v The Queen

Holland (a pseudonym) v The Queen

Case [2018] VSCA 241 19 September 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0090
ALEXANDER HOLLAND (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of the identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	BEACH, WEINBERG JJA and CHAMPION AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2018
DATE OF JUDGMENT:	19 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 241
JUDGMENT APPEALED FROM:	DPP v [Holland] (Unreported, County Court of Victoria, Judge Mullaly, 21 March 2018)

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CRIMINAL LAW – Sentence – Appeal – Incest (sibling) 2 charges – Total effective sentence of 30 months with non-parole period of 15 months – Whether judge erred in taking into account aggravating circumstance warranting conviction for more serious offence – Error not established – Whether judge failed to take relevant circumstance into account – Error conceded – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – No different sentence should now be passed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M A Reardon	Victoria Legal Aid
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
WEINBERG JA
CHAMPION AJA:

On 7 August 2017, the applicant pleaded guilty in the County Court to two charges of incest with his sister contrary to s 44(4) of the Crimes Act 1958.[2] On 21 March 2018, the applicant was sentenced as follows:
[2]As in force prior to the commencement of ss 15 and 16 of the Crimes Amendment (Sexual Offences) Act 2016 on 1 July 2017. See now s 50F of the Crimes Act 1958.

Charge Offence Maximum Sentence
Cumulation

1 Incest (sibling)
[s 44(4) Crimes Act 1958, as in force before 1 July 2017] 5 years’ imprisonment 15 months’ imprisonment 6 months

2 Incest (sibling)
[s 44(4) Crimes Act 1958, as in force before 1 July 2017] 5 years’ imprisonment
24 months’ imprisonment
Base

Total Effective Sentence: 30 months’ imprisonment

Non-Parole Period: 15 months

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: Nil

Section 6AAA statement: But for the plea of guilty, a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months would have been imposed.

Charge	Offence	Maximum	Sentence	Cumulation
1	Incest (sibling) [s 44(4) Crimes Act 1958, as in force before 1 July 2017]	5 years’ imprisonment	15 months’ imprisonment	6 months
2	Incest (sibling) [s 44(4) Crimes Act 1958, as in force before 1 July 2017]	5 years’ imprisonment	24 months’ imprisonment	Base
Total Effective Sentence:	30 months’ imprisonment
Non-Parole Period:	15 months
*Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*	Nil
Section 6AAA statement:	But for the plea of guilty, a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months would have been imposed.

The applicant now seeks leave to appeal against his sentence on the following grounds:

1.The learned sentencing judge erred by taking into account as circumstances of aggravation conduct of the applicant which would have warranted a conviction for a more serious offence than the offences charged.
2.The learned sentencing judge erred by failing to take into account material considerations.
Particulars:
(a)the fact that imprisonment would weigh more onerously on the applicant than a person of normal health;
(b)the fact that there was a risk of imprisonment having a significant adverse effect on the applicant’s mental health.

3.The individual terms, order for…

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 Holland (a pseudonym) v The Queen

Details

AGLC: Holland (a pseudonym) v The Queen [2018] VSCA 241
Case: [2018] VSCA 241
Decision Date: 19 September 2018

CaseChat Overview and Summary

In the matter of Holland, the appellant, against The Queen, the respondent, the High Court of Australia considered an appeal against the sentence imposed by the primary judge. Holland was convicted of two counts of incest with a sibling, and was sentenced to a total effective term of imprisonment of 30 months, with a non-parole period of 15 months. The appellant challenged the sentence on the basis of alleged errors in the primary judge's consideration of aggravating circumstances and the overall severity of the sentence.

The primary issues for the court's determination were whether the primary judge erred in taking into account an aggravating circumstance warranting a conviction for a more serious offence, whether the judge failed to take into account a relevant circumstance, and whether the sentence was manifestly excessive. The court found that the error in considering an aggravating circumstance warranting a conviction for a more serious offence had not been established. However, the appellant conceded error in the primary judge's failure to take into account a relevant circumstance. The court held that it was not reasonably arguable that the sentence was manifestly excessive, and no different sentence should now be passed.

Consequently, the court dismissed the appeal against sentence. The primary judge's sentence was upheld as appropriate and proportionate to the offending. The court emphasised that, while the appellant had identified some errors in the primary judge's assessment of the case, these did not warrant a different sentence being imposed. The appeal was dismissed, and the original sentence remained in place.

Orders