Holliday v The Queen - [2013] ACTCA 31

AARON JAMES HOLLIDAY v THE QUEEN
[2013] ACTCA 31 (31 July 2013)

CRIMINAL LAW – particular offences – offences against the person – sexual offences – commit an act of indecency/under 16 years

CRIMINAL LAW – particular offences – offences against the person – sexual offences – engage in sexual intercourse with a person above 10 years under the age of 16

CRIMINAL LAW – particular offences – sexual offences - intentionally possessing child pornography

APPEAL – appeal from Supreme Court – appeal against sentence – whether sentence ‘crushing’

Crimes Act 1900 (ACT)
Crimes Act 1900 (NSW)

Criminal Code 2002 (ACT)

Ryan v R (2001) 206 CLR 267
R v Oliver [2003] 1 Cr App R 28
R v Cooper [2012] ACTCA 9 (21 December 2012)
R v Meyboom [2012] ACTCA 48 (11 December 2012)
R v Priest (Unreported, Supreme Court of the ACT, Penfold J, 16 February 2011)
R v Alexandro Silva [2009] ACTSC 108 (4 September 2009)
Frederick Thomas Yates (1984) 13 A Crim R 319
R v Crowley and Garner (1991) 55 A Crim R 201
R v Howard, SCC 267/2010, 22 November 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 50 - 2010
No. SCC 73 of 2009
No. SCC 341 of 2009

Judges: Higgins CJ, Penfold and Dowsett JJ
Court of Appeal of the Australian Capital Territory
Date: 31 July 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 50 - 2010
  )          No. SCC 73 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 341 of 2009
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:AARON JAMES HOLLIDAY
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Penfold and Dowsett JJ
Date:  31 July 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.

The appellant be resentenced as follows:

· On count 2 on the indictment dated 18 November 2009 referring to SCC 73 of 2009, commit an act of indecency/under 16 years, 2 years imprisonment and a conviction recorded.

· On count 3 on the indictment dated 18 November 2009 referring to SCC 73 of 2009, intentionally possessing child pornography, 18 months imprisonment, cumulative with the above as to 6 months and a conviction recorded.

· On count 5 on the indictment dated 18 November 2009 referring to SCC 73 of 2009, dishonestly appropriating property, a conviction is recorded.

· On count 3 on indictment dated 18 November 2009 referring to SCC 341 of 2009, engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment, cumulative with the above as to two years, and a conviction is recorded.

· On count 4 on indictment dated 18 November 2009 referring to SCC 341 of 2009 , engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment concurrent with the above and a…

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 Holliday v The Queen

Details

AGLC: Holliday v The Queen [2013] ACTCA 31
Case: [2013] ACTCA 31
Decision Date: 31 July 2013

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, Holliday, by the Supreme Court of Queensland. The appellant had been convicted on multiple counts, including committing acts of indecency with a person under 16, intentionally possessing child pornography, dishonestly appropriating property, and engaging in sexual intercourse with persons under 16. The appeal was against the severity of the sentences imposed.

The primary legal issue before the Court of Appeal was whether the aggregate sentence imposed by the Supreme Court was "crushing," meaning it was so excessive as to be unjust. This required the court to consider the individual sentences for each offence, the cumulative and concurrent nature of those sentences, and the overall head sentence and non-parole period in light of the relevant sentencing principles and the nature of the offences.

The Court of Appeal allowed the appeal, finding that the original sentence was indeed crushing. The court undertook a detailed review of the sentences for each count, adjusting the periods of imprisonment and their cumulative or concurrent application. The court applied established sentencing principles, including the need for proportionality, the gravity of the offences, the appellant's culpability, and the impact on victims, to arrive at a revised sentencing structure. The court ultimately imposed a head sentence of 8 years imprisonment with a non-parole period of 5.5 years, commencing from the original date of sentence. The cross-appeal was dismissed.

Orders

Orders of the court

1.The appeal be allowed.

2.The appellant be resentenced as follows:

· On count 2 on the indictment dated 18 November 2009 referring to SCC 73 of 2009, commit an act of indecency/under 16 years, 2 years imprisonment and a conviction recorded.

· On count 3 on the indictment dated 18 November 2009 referring to SCC 73 of 2009, intentionally possessing child pornography, 18 months imprisonment, cumulative with the above as to 6 months and a conviction recorded.

· On count 5 on the indictment dated 18 November 2009 referring to SCC 73 of 2009, dishonestly appropriating property, a conviction is recorded.

· On count 3 on indictment dated 18 November 2009 referring to SCC 341 of 2009, engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment, cumulative with the above as to two years, and a conviction is recorded.

· On count 4 on indictment dated 18 November 2009 referring to SCC 341 of 2009 , engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment concurrent with the above and a conviction is recorded.

· On count 5 on indictment dated 18 November 2009 referring to SCC 341 of 2009, engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment cumulative with the above as to 6 months and a conviction is recorded.

· On count 8 on indictment dated 18 November 2009 referring to SCC 341 of 2009, engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment cumulative with the above as to 6 months and a conviction is recorded.

· On count 9 on indictment dated 18 November 2009 referring to SCC 341 of 2009 , engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment concurrent with the above and a conviction is recorded.

· On count 10 on indictment dated 18 November 2009 referring to SCC 341 of 2009 , engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment cumulative with the above as to 2 years, and a conviction is recorded.

· On count 11 on indictment dated 18 November 2009 referring to SCC 341 of 2009 , engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment concurrent with the above and a conviction is recorded.

· On count 12 on the indictment dated 18 November 2009 referring to SCC 341 of 2009, intentionally possessing child pornography, 18 months imprisonment cumulative with the above as to 6 months and a conviction is recorded.

· The head sentence is 8 years. The non-parole period is 5.5 years. The sentence will commence on 9 April 2009.

3.The cross-appeal be dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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