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R v Holland

R v Holland

Case [2011] NSWCCA 65 5 April 2011

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Court of Criminal Appeal

New South Wales

Case Title: R v Holland

Medium Neutral Citation: [2011] NSWCCA 65

Hearing Date(s): 11 February 2011

Decision Date: 05 April 2011

Jurisdiction:

Before:
McClellan CJ at [1]
Buddin J at [15]
Schmidt J at [16]

Decision:
Appeal dismissed

Catchwords:
CRIMINAL LAW - appeal against sentence - whether discount given for assistance was too high - whether sentence was manifestly inadequate in regard to seriousness of offence, role of offender and comparable sentences - importation of a commercial quantity of a border controlled drug, cocaine - sentence not found to be manifestly inadequate - appeal dismissed

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)

Cases Cited:
Boney v The Queen [2008] NSWCCA 165; (2008) 187 A Crim R 167
Diefenbach v R [1999] WASCA 4; (1999) 108 A Crim R 19
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) FLR 28
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Anderson [2004] NSWCCA 317
R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355
R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244
R v Labanon; ex parte Cth DPP [2006] QCA 529
R v Laurentiu (1992) 63 A Crim R 402;
R v LP [2010] NSWCCA 154
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
Regina v Danson [2005] NSWCCA 343
Regina v Otto [2005] NSWCCA 333; (2005) A Crim R 525
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584

Texts Cited:

Category: Principal judgment

Parties:
Regina (Appellant)
James Gordon Holland (Respondent)

Representation

- Solicitors:
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Legal Aid NSW (Respondent)

- Counsel:
Counsel:
Mr P McGrath (Appellant)
Ms A Francis (Respondent)

File number(s): CCA 2009/145833

Decision Under Appeal

- Court / Tribunal:

- Before: Flannery J

- Date of Decision: 30 July 2010

- Citation:

- Court File Number(s) 2009/500145833

Publication Restriction:

Judgment

McCLELLAN CJ AT CL : I agree with the orders proposed by Schmidt J.

Although the sentence imposed by the sentencing judge was at the lower limit of any appropriate sentence I am not persuaded that it was manifestly inadequate.

Much of the argument in the appeal focused upon the "Categories of offence" which I developed in the course of my reasons in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28. Some of my remarks may have been misunderstood. When preparing my reasons in De La Rosa it became increasingly apparent that there were many significant decisions with…

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 [2011] NSWCCA 65
Case: [2011] NSWCCA 65
Decision Date: 05 April 2011

CaseChat Overview and Summary

The appeal in R v Holland was heard by the Court of Appeal in South Australia. The appellant, previously convicted of importing a commercial quantity of cocaine, sought to appeal his sentence on the basis that the discount given for his assistance to authorities was excessive and that the overall sentence was manifestly inadequate. The court was required to determine whether the sentence imposed was disproportionate when considering the gravity of the offence, the appellant's role, and sentences imposed in similar cases.

The legal issues before the court included whether the trial judge erred in applying a significant discount for the appellant's assistance, and whether the final sentence was manifestly inadequate. The court needed to weigh the factors relevant to sentencing, including the extent of the appellant's cooperation, against the gravity of the offence and the need to deter such conduct. Additionally, the court had to consider whether the sentence imposed was commensurate with sentences in comparable cases.

The court found that the trial judge did not err in giving a discount for the appellant's assistance, which was deemed appropriate given his level of cooperation. The court also determined that the sentence was not manifestly inadequate, considering the totality of the circumstances, including the appellant's role and the deterrent effect of the sentence. The appeal was ultimately dismissed as the court was satisfied that the sentence reflected the seriousness of the offence and was in line with sentences for similar conduct.

Orders