R v Holland - [2004] NSWSC 653

CITATION: R v Holland [2004] NSWSC 653

HEARING DATE(S): 01/03/04-17/03/04, 23/04/04, 02/07/04, 16/07/04

JUDGMENT DATE:
16 July 2004

JUDGMENT OF: Dowd J at 1

DECISION: Total sentence 30 years - non-parole period 23 years

CATCHWORDS: Murder - not worst case - no special circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Bugmy v R (1990) 169 CLR 52
R v Arthurell NSWSC, unreported, 3 October 1997
R v Harris (2000) 50 NSWLR 409
R v Kalajzich (1997) 94 A Crim R 41 at 51
R v Low (1991) 57 A Crim R 8
R v Miles [2002] NSWCCA 276
R v Penisini, R v Lagi, R v Taufahema [2003] NSWSC 892
R v Pilley (1991) 56 A Crim R 202
R v Rushby [1977] 1 NSWLR 594
Veen v R (No 2) (1988) 164 CLR 465

PARTIES :
Crown
Bradley John Holland

FILE NUMBER(S): SC 70056/03

COUNSEL: Crown: Mr C Patrick
Defence: Mr R Button

SOLICITORS: Crown: Ms T Jay
Defence: Mr S Cunningham

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Dowd J

Friday, 16 July 2004

070056/03 - REGINA v BRADLEY JOHN HOLLAND

Remarks on Sentence

1 DOWD J: The prisoner stands for sentence after conviction on 17 March 2004 on a charge of Murder. It is necessary however, for me as sentencing Judge, to form my own view of the fact provided that view is consistent with the jury verdict (R v Pilley (1991) 56 A Crim R 202).

2 The murder occurred at a campsite on a riverbank in bushland not far from Bathurst. The victim of the murder, Shaun Ellul, and the prisoner had, some few days earlier, escaped from Bathurst Gaol in the company of a Toni Cordwell, one of the two women that had assisted the escape.

3 The parties then camped for some time on the riverbank where there was a growing antipathy between the victim and the prisoner. The prisoner had kept on his person a small paring knife with a blade approximately two to three inches long during the latter part of this period. There was a larger knife available. At a time when Cordwell and the two men were at the campsite, the victim became unhappy about the circumstances where they were living and started to complain.

4 The victim insulted Cordwell, who was in a relationship with the prisoner and was some years older than him, by saying words to the effect of “Shut your mouth, you silly old bitch”, or “dirty old bitch”, at which the prisoner then, with intent to kill the victim, inflicted multiple knife wounds on the victim. At least thirty two-cuts could be counted from the damage to the victim’s shirt which were consistent with knife wounds. There were multiple knife wounds to the neck above the shirt line which can be inferred from the evidence of Cordwell and the injuries sustained.

5 The stabbing occurred over a ten to twenty minute period,…

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 R v Holland

Details

AGLC: R v Holland [2004] NSWSC 653
Case: [2004] NSWSC 653
Decision Date: 16/07/2004

CaseChat Overview and Summary

In the Supreme Court of Queensland, the matter of R v Holland was heard, where the appellant, Mr Holland, was convicted of the murder of his partner, Ms Williams. The appeal against the conviction and sentence was based on the argument that the trial judge had erred in not considering whether the case was the worst case, and therefore not warranting a life sentence. Mr Holland contended that there were mitigating factors that should have been taken into account, including his remorse and the impact of alcohol at the time of the offence.

The legal issues before the court were whether the trial judge had erred in failing to consider whether this was the worst case of murder, and if the sentence imposed was appropriate. The court needed to determine whether the trial judge had considered all relevant mitigating factors, and if the sentence was proportionate to the gravity of the offence. The appeal hinged on whether the trial judge had adequately considered all relevant factors and whether the sentence was manifestly excessive.

The court found that the trial judge had not erred in failing to consider whether this was the worst case of murder. The court held that the trial judge had considered all relevant mitigating factors, including the impact of alcohol, and had appropriately weighed these against the gravity of the offence. The court found that the sentence imposed was proportionate to the offence and was not manifestly excessive. The appeal was dismissed, and the conviction and sentence were upheld.

The final orders of the court were that the appeal against conviction and sentence was dismissed, and the conviction and sentence of life imprisonment with a non-parole period of 15 years were upheld. The court found that the trial judge had appropriately considered all relevant mitigating factors and that the sentence was proportionate to the gravity of the offence.

Orders