R v Holliday - [2015] ACTSC 222

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Holliday
Citation:	[2015] ACTSC 222
Hearing Date(s):	15 April 2015
DecisionDate:	24 July 2015
Before:	Burns J
Decision:	See [25]-[29]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – Particular Offences – offences committed while in custody –incitement to kidnap – attempt to intentionally pervert the course of justice – s 72 of the Crimes (Sentencing) Act 2005 (ACT) – whether sentences are to be served consecutively – principle of totality.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 72
Cases Cited:	TM v Karapanos and Bakes [2011] ACTSC 74
Parties:	The Queen (Crown) Aaron James Holliday (Offender)
Representation:	Counsel Mr S Drumgold (Crown) Mr R Livingston (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Pappas, J. - attorney (Offender)
File Number(s):	SCC 10 of 2014

BURNS J:

Background

Aaron Holliday, on 16 September 2014, you were arraigned before a jury on an indictment dated 24 January 2014 and you entered pleas of not guilty to all five counts on the indictment. On 23 September 2014, you were found not guilty by a jury of counts 2 and 3 but guilty of counts 1, 4 and 5. Counts 2 and 3 were allegations of incitement to murder. Counts 4 and 5 were counts of incitement to kidnap AA and RO, respectively. Count 1 was a count of attempting to intentionally pervert the course of justice.

Each of the charges of which you were convicted carries a maximum penalty of 7 years' imprisonment, 700 penalty units or both. I am satisfied of the following facts.

The offences

In May 2010, you were on remand in the Alexander Maconachie Centre awaiting sentence for sex offences against two males. These males were the brothers of AA and RO, respectively. You had entered pleas of guilty to those charges. You incited another inmate of the Alexander Maconachie Centre, Darren Powell, to kidnap AA and RO or to arrange for them to be kidnapped.

The purpose of this kidnapping was to force them to recite a prepared script designed to exculpate you of the offences for which you were awaiting sentence and to record that recitation. Your plan was to then provide the recording to your lawyer and apply to withdraw your pleas of guilty. It was your hope that the Director of Public Prosecutions would then withdraw the charges in the light of those recordings. In pursuit of your aim, you prepared a number of written documents seeking assistance with your plan and setting out the scenarios you wanted the proposed victims to recite while being recorded. You attempted to enlist Darren Powell in your plan, urging him to arrange the kidnappings and the recording of the false scenarios.

The jury’s verdicts mean that they clearly rejected your evidence in which you denied formulating any such plan and attempted to explain the written documents which were located by police. This is unsurprising, as your explanations were absurd. In particular, I reject the…

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 Holliday

Details

AGLC: R v Holliday [2015] ACTSC 222
Case: [2015] ACTSC 222
Decision Date: 24 July 2015

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the respondent, Holliday, faced sentencing for two significant criminal offences. Holliday had incited another to kidnap and had attempted to intentionally pervert the course of justice while in custody. The court was tasked with determining an appropriate sentence, considering the nature of the offences and the principle of totality. The principle of totality mandates that the cumulative sentence should not excessively exceed the sum of the sentences for individual offences, and that the aggregate sentence should reflect the overall gravity of the criminal conduct.

The primary legal issue before the court was whether the sentences for these offences should run consecutively or concurrently. The court considered the gravity of each offence, the principle of totality, and the circumstances surrounding the commission of the offences. Holliday's legal representatives argued for concurrent sentences to reflect the overarching principle of proportionality, while the prosecution contended for consecutive sentences to adequately reflect the severity and distinct nature of each offence.

The court held that the offences were sufficiently serious to warrant consecutive sentences. It emphasised the gravity of incitement to kidnap, given its potential to endanger public safety and the potential for serious harm to victims. The court also underscored the significance of the attempt to pervert the course of justice, given that it occurred while Holliday was in custody and undermined the administration of justice. By imposing consecutive sentences, the court aimed to ensure that the total punishment appropriately reflected the cumulative seriousness of the offences. The court's decision was grounded in the principle of totality, which it interpreted to mean that the combined sentence should not excessively exceed the sum of the appropriate sentences for the individual offences.

The court ordered that Holliday serve a total sentence of 11 years, with a non-parole period of six years and eight months. The sentences were to be served consecutively, reflecting the cumulative seriousness of the offences and aligning with the principle of totality. This decision ensures that Holliday's punishment appropriately reflects the gravity of his criminal conduct while adhering to the legal principles governing sentencing.

Orders

Orders of the court

See [25]-[29]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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