Holman v Regina - [2006] NSWCCA 227

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Holman v Regina [2006] NSWCCA 227

FILE NUMBER(S):
2006/786

HEARING DATE(S): 26/07/2006

DECISION DATE: 28/07/2006

PARTIES:
Michael Patrick Holman - Plaintiff
Crown - Respondent

JUDGMENT OF: McClellan CJ at CL Kirby J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0245

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
Applicant in person
DML Woodburne - Crown

SOLICITORS:
Applicant in person
S Kavanagh, Solicitor for Public Prosecutions

CATCHWORDS:
SENTENCE APPEAL - submissions not put in accordance with instructions - rehabilitation - use of previous criminal record.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted - appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/786
McCLELLAN CJ at CL
KIRBY J
HOEBEN J
Friday, 28 July 2006

Michael Patrick HOLMAN v REGINA

Judgment

McCLELLAN CJ at CL: I agree with Hoeben J.
KIRBY J: On this appeal the applicant represented himself. He presented as both intelligent and articulate. Fundamentally, his complaint was that the sentence had not been backdated to the date of his arrest on 17 August 2004. However, for the reasons explained by Hoeben J, there was no error in the selection of the commencement date of the sentence (1 June 2005), having regard to the revocation of parole by the Parole Board on 5 August 2004 and the requirement that the applicant serve the balance of his term (which expired on 24 October 2005).
Nonetheless, it must be said that the applicant spoke convincingly and movingly concerning his resolve to break the destructive cycle of his life to this point. He said that, for the first time in a long while, he was drug free. He believed that he had grown up. He recognised that he was still a young man, and could yet do something with his life. He also recognised that he had been given many opportunities in the past, which he had squandered. He was anxious that this should not occur in the future.
Whilst it was not possible to alter the sentence he must serve, there being no error, his resolve, which appeared sincere, augers well for his early reclassification and ultimate rehabilitation once released to parole.
I agree with the orders suggested by Hoeben J and with his reasons.
HOEBEN J:
Offences and sentence
On 1 June 2005 the applicant was sentenced by Delaney DCJ as follows:

Date of Offence

Offence

Max Penalty

Sentence

Count
1

15/07/04

Having been convicted of indictable offence (BES), commit offence of enter building at 85 Eddy Rd Chatswood, with intent to commit indictable offence

s.115 Crimes Act

10 Years

Imprisonment for 2 years 6 months to date from 1 June 2005 and expire 30 November 2007 (wrongly stated to be 31 December 2007)

Count
2

15/07/04

Break, enter and steal – 15 Colwell Crescent, Chatswood West

s.112(1) Crimes Act

14 years

Taking into account Form 1, sentenced to imprisonment for 3 years to date from 1 June 2005 and expire…

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 Holman v Regina

Details

AGLC: Holman v Regina [2006] NSWCCA 227
Case: [2006] NSWCCA 227
Decision Date: 28 July 2006

CaseChat Overview and Summary

Holman sought leave to appeal against the severity of the sentences imposed on him on 1 June 2005. The applicant was before the court seeking leave to appeal against the severity of the sentences imposed upon him. The applicant was appealing the severity of the sentences imposed on him following his convictions for various offences. The central issue before the court was whether the applicant's sentence was excessive and warranted an appeal.

The court considered the nature and sequence of the applicant's offences, his history of reoffending, and the principle of proportionality in sentencing. The court also took into account the applicant's submissions, his conduct, and the need for the sentence to reflect the gravity of the crimes committed. The applicant argued that his rehabilitation and the use of his previous criminal record were not properly considered by the sentencing judge. The court evaluated the arguments presented and determined whether the sentence was indeed excessive or whether it appropriately reflected the seriousness of the offences and the need for deterrence and rehabilitation. The court concluded that the sentences imposed were within the appropriate range for the offences committed and did not warrant an appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

By Notice of Application for Leave to Appeal filed 28 March 2006 the applicant (who appears for himself) seeks the leave of the Court to appeal against the severity of the sentences imposed upon him on 1 June 2005.Factual background to offences In order to appreciate the approach which his Honour adopted to sentencing the applicant, it is necessary to understand the sequence of events leading up to the offences. On 3 July 2004 the applicant was released to parole in respect of unrelated matters. On 15 July 2004 the applicant committed the three offences in the Chatswood area. On 26 July 2004 the applicant was released on bail. On 5 August 2004 the Parole Board revoked the applicant’s parole. On 12 August 2004 the applicant committed the offence at Northbridge. On 17 August 2004 the applicant committed the two offences at North Rocks. When the applicant was arrested on 17 August 2004 he commenced to serve the balance of his parole, which was 1 year 2 months and 8 days to expire on 24 October 2005. Count 1 – On 15 July 2004 at 1.30pm Joan Hunt aged 82 was inside her home at 85 Eddy Avenue, Chatswood. She saw the applicant inside her home. When questioned by her he claimed to be looking for a tradesman. The police were called and the applicant was arrested later that afternoon. Count 2 – On 15 July 2004 at 1.40pm Margaret Beaumont aged 72 was sitting on her veranda at 15 Colwell Crescent, Chatswood. As she was doing so, the applicant gained entry to her house by removing flyscreens from a rear window. In due course Ms Beaumont saw the applicant in her house. Initially she thought it might have been her son, but when she realised it was not she ran from the house. The applicant stole her wallet containing six $50 notes, credit cards and a health card. A further $100 of unknown denomination was stolen from her bedside drawer and a couple of $20 notes were taken from a wallet within that drawer. The police were called. Form 1 - On 15 July 2004 at 2.10pm a builder working at residential premises at 74 Beaconsfield Road, Chatswood West saw a male dressed in black, shiny tracksuit pants and a grey top walking through those premises. When challenged the applicant falsely claimed that he knew the owner of the premises and said that he was looking for work. When the applicant was arrested on 15 July 2004 his appearance matched the various descriptions which had been given to the police. Police found $350 in $50 notes and $100 in $20 notes on his person. Sequence 1 – at 2.45pm on 12 August 2004 Noel Perrott and his mother Ethel (aged 76) were gardening in the front yard of their home at 60 Speers Road, North Rocks. The applicant was observed in the driveway of the next-door premises. When Mr Perrott entered his house, he found that access had been gained through a rear door and that $1,500 in cash had been stolen from his bedroom together with seven gold rings from Ethel Perrott’s bedroom. Sequence 2 – On 17 August 2004 Mr Perrott and a Mr Fulton were driving along North Rocks Road when they recognised the applicant. They saw the applicant walk into the rear yard of 161 North Rocks Road before seeing him return and try to open the front door of the premises.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CLELLAN CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

Full text does not contain this section.