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Holloway v R

Holloway v R

Case [2011] NSWCCA 23 28 February 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Holloway v Regina [2011] NSWCCA 23
Hearing dates: Thursday 25 November 2010
Decision date: 28 February 2011
Before: James J
Hall J
Price J
Decision:
(1) Leave to proceed on the notice of application for leave to appeal filed out of time on 19 August 2010 be granted.
(2) Leave to appeal granted.
(3) Appeal be dismissed.

Catchwords: APPEAL OUT OF TIME - guilty plea not entered at earliest opportunity - 15% discount reasonable for seriousness of offence - no finding in favour of rehabilitation - aggravation for being on conditional liberty - racially motivated assaults - strong deterrence - general and specific deterrence - longer than normal parole to enhance rehabilitation - violent offences part of one course of conduct - concurrent - drug offences separate - new provisions of s 35 Crimes Act 1900 are new offences - error regarding non-parole period not material - offences not manifestly excessive
Legislation Cited: Crimes Act 1900
Crimes Amendment Act 2007
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Regina v Borkowski [2009] NSWCCA 102
Regina v Harmouche (2005) 158 A Crim R 357
Category: Principal judgment
Parties: WARREN HOLLOWAY v REGINA
Representation: Counsel:
C: F Veltro
A: W Hunt
Solicitors:
C: S Kavanagh
A: S E O'Connor

File Number(s): 2008/11482
Decision under appeal

Date of Decision:

2009-08-21 00:00:00

Before:

English DCJ

File Number(s):

2008/11482

Judgment

JAMES J : I agree with Hall J.

HALL J : The applicant, by notice of appeal dated 18 August 2010, seeks leave to appeal against an aggregate sentence imposed by the Penrith District Court on 21 August 2009.

At the hearing, Mr W Hunt of counsel, who appeared on behalf of the applicant, sought leave to appeal out of time, the notice of appeal having been filed on 19 August 2010. The Crown did not oppose the grant of leave. In those circumstances, leave as sought will be granted to bring the application out of time.

On 4 December 2008, the applicant pleaded guilty on arraignment at Penrith District Court to a number of offences as follows:-

(1) On 23 April 2007 - knowingly take part in the cultivation of a prohibited plant by enhanced indoor means, namely cannabis, in an amount not less than the commercial quantity, contrary to section 23(2)(a) of the Drug (Misuse and Trafficking) Act 1985. (Maximum penalty: 15 years imprisonment and/or a fine of up to $385,000).

In respect to this offence the Judge imposed a sentence comprising of a non parole period of one year to date from 13 July 2009 and expiring on 12 July 2010 with a balance of term of 18 months and 12 days expiring on 30 January 2012.

(2) On 26 August 2007 - malicious wounding in company, contrary to section 35(2) of the Crimes Act 1900. (Maximum penalty: 10 years imprisonment). It should be noted that the applicant pleaded not guilty to a charge of…

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 Holloway v R

Details

AGLC: Holloway v R [2011] NSWCCA 23
Case: [2011] NSWCCA 23
Decision Date: 28 February 2011

CaseChat Overview and Summary

In the case of Holloway v R, the appellant, Holloway, was convicted of a series of violent offences, including assaults motivated by race, as well as drug-related offences. The appellant appealed against the sentence imposed by the Supreme Court of New South Wales, arguing that the sentence was manifestly excessive and that the trial judge had made errors in calculating the non-parole period. The appeal was heard by the Court of Criminal Appeal, which had to determine whether the appeal was out of time, whether the sentence was excessive, and whether there were any errors in the calculation of the non-parole period.

The primary legal issues that the Court of Criminal Appeal had to decide were whether the appeal was out of time, whether the sentence was manifestly excessive, and whether there were any errors in the calculation of the non-parole period. The court also had to consider the principles of general and specific deterrence, the need for rehabilitation, and the seriousness of the offences committed.

In its judgment, the Court of Criminal Appeal held that the appeal was not out of time, as the 15% discount for entering a guilty plea at the earliest opportunity was reasonable given the seriousness of the offences. The court found that the sentence was not manifestly excessive, and that the trial judge had correctly considered the principles of general and specific deterrence, the need for rehabilitation, and the seriousness of the offences. The court also found that there were no errors in the calculation of the non-parole period, as the new provisions of section 35 of the Crimes Act 1900 were new offences and did not affect the calculation of the non-parole period for the offences committed. The court noted that the appellant was on conditional liberty at the time of the offences, which was an aggravating factor, but found that the sentence was appropriate given the circumstances. The court ordered that the sentences for the violent offences be served concurrently, while the sentences for the drug offences be served separately.

In conclusion, the Court of Criminal Appeal dismissed the appellant's appeal against sentence, finding that the sentence imposed by the Supreme Court of New South Wales was appropriate and not manifestly excessive. The court also found that there were no errors in the calculation of the non-parole period, and that the appeal was not out of time. The court's decision reinforces the importance of considering the principles of general and specific deterrence, the need for rehabilitation, and the seriousness of the offences when imposing a sentence.

Orders