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R v Holland

R v Holland

Case [2002] VSCA 118 12 August 2002

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 124 of 2002

THE QUEEN
	v.
KENDALL ANNE HOLLAND

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JUDGES:	BATT and EAMES, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2002
DATE OF JUDGMENT:	12 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 118

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Criminal law - Sentencing - Cultivation of a narcotic plant in not less than a commercial quantity and trafficking in a drug of dependence - Whether a sentence of nine months imprisonment was manifestly excessive - Hardship to a young child and the grandparent carers of the child - Whether further evidence disclosed exceptional circumstances for the purposes of the hardship principle stated in Stewart (1994) 72 A.Crim.R. 17 and Wirth (1976) 14 S.A.S.R. 291.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr D. Grace, Q.C.	Anthony Isaacs

BATT, J.A.:

I have found this a worrying case, but, having had the benefit of reading the reasons for judgment of O’Bryan, A.J.A., I agree with his Honour’s conclusion that the appeal must be dismissed and, subject to what follows, with his reasons for that conclusion.

In my opinion, the affidavit sworn by the appellant’s father-in-law and his oral evidence in amplification thereof are admissible on this appeal to show the true significance of facts in existence at the time of sentencing and adverted to before the sentencing judge: R. v. Eliasen[1]; R. v. Babic[2]; R. v. Rostom[3].
[1](1991) 53 A.Crim.R. 391 at 394.
[2][1998] 2 V.R. 79 at 81-82.
[3][1996] 2 V.R. 97 at 99.

But, after anxious consideration, I have concluded that the requisite exceptional hardship to the appellant’s child Selby is not shown. The criterion of exceptional hardship is extraordinarily difficult to satisfy, as reference to the oft-cited judgment of Wells, J. in The Queen v. Wirth[4] shows. Before the second passage cited by O’Bryan, A.J.A. from his Honour’s judgment, Wells, J.[5] had drawn attention to the truism that hardship to spouse, family, and friends[6], is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court and had stated that courts would often do less than their duty if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners. But, his Honour had gone on to say, the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where “a sense of mercy or of affronted commonsense imperatively demands that they should draw back”. This last passage was cited with approval by, amongst others,

Burt, C.J. in the Western Australian Court of Criminal Appeal in R. v. Boyle[7]. I recognise the very considerable burdens that Selby’s paternal grandparents are enduring in order to care for her and my sympathy is engaged. But, in the end, I…

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 [2002] VSCA 118
Case: [2002] VSCA 118
Decision Date: 12 August 2002

CaseChat Overview and Summary

The case of R v Holland was heard in the court where the defendant, Holland, was convicted of cultivating a narcotic plant in a quantity that was not less than commercial and trafficking in a drug of dependence. The central issue before the court was whether the sentence of nine months imprisonment imposed on Holland was manifestly excessive, particularly considering the hardship it would cause to his young child and the grandparents who care for the child. The court had to decide if the hardship experienced by the child and grandparents constituted exceptional circumstances warranting a departure from the standard sentencing approach.

The court examined the principles of sentencing outlined in Stewart (1994) 72 A.Crim.R. 17 and Wirth (1976) 14 S.A.S.R. 291, which state that exceptional circumstances may justify a sentence that deviates from the norm. The court considered the evidence presented regarding the hardship to the child and grandparents, including the potential impact on the child's well-being and the grandparents' ability to provide care. The court concluded that while the hardship was significant, it did not reach the level of exceptional circumstances that would warrant a departure from the sentence imposed. The court found that the sentence was not manifestly excessive and upheld the original nine-month imprisonment term.

In light of the findings, the court did not alter the sentence imposed on Holland. The decision emphasises the importance of considering the broader impact of a sentence on family members, while also upholding the principle that exceptional circumstances are necessary to justify a departure from standard sentencing practices. The final orders of the court were to maintain the nine-month imprisonment term for Holland, with no modifications made to the sentence.

Orders