R v Holman - [2019] NSWDC 292

District Court

New South Wales

Medium Neutral Citation: R v Holman [2019] NSWDC 292
Hearing dates: 15-16 May 2019
Decision date: 16 May 2019
Jurisdiction: Criminal
Before: Payne DCJ
Decision:
Aggregate sentence of three years with an aggregate non-parole period of 13 months

Catchwords:
SENTENCING – particular offences – property offences – aggravated (in company) break, enter and commit serious indictable offence

SENTENCING – particular offences – violence offences – assault occasioning actual bodily harm
SENTENCING – subjective considerations on sentence – health issues – drug addiction – special circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Road Transport Act 2013
Cases Cited: R v Clark [2013] NSWCCA 260
Category: Sentence
Parties: Regina (Crown)
Jeremy John Holman (offender)
Representation:
Counsel:
Mr J McKenzie (offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blue Water Legal Pty Ltd (offender)

File Number(s): 2018/237703

Judgment

In relation to this matter, Jeremy John Holman comes before the Court in respect of one offence. The offence is aggravated (in company) break, enter and commit serious indictable offence, larceny. This offence is contrary to s 112(2) of the Crimes Act 1900. The maximum penalty prescribed for the offence is 20 years with a standard non-parole period of five years. That is sequence 4.
He also has a separate offence of assault occasioning actual bodily harm, sequence 5, the victim being V1. This offence is contrary to s 59(1) of the Crimes Act. The maximum penalty is five years imprisonment.
In addition, he asks that an offence on a Form 1 document be taken into account, assault occasioning actual bodily harm, victim V2, s 59(1) Crimes Act, maximum penalty at law, five years. The offence on the Form is to be taken into account in relation to the offence contrary to s 112(2). Weight must be given to the offence on the Form.
There is also a related offence, drive whilst disqualified, second offence, s 54(1)(a) Road Transport Act 2013, maximum penalty 12 months imprisonment and/or a fine up to 50 penalty units, automatic licence disqualification 12 months, minimum licence disqualification six months.
He was committed for sentence on 19 February 2019 from Forster Local Court. He is entitled to a reduction of 25 percent for utilitarian considerations.
In addition, I have read carefully the letter he composed, and I accept that he takes full responsibility for his offending behaviour, and he is entitled to the mitigating feature of remorse under s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999:

“the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).”

In addition, there is a reference to that in para 27 of the psychological report dated 29 April 2019:

“”Mr Holman expressed remorse and contrition…

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 Holman

Details

AGLC: R v Holman [2019] NSWDC 292
Case: [2019] NSWDC 292
Decision Date: 16 May 2019

CaseChat Overview and Summary

In the case of R v Holman, the appellant was convicted of a series of offences including aggravated break and enter, committing a serious indictable offence in company, and assault occasioning actual bodily harm. The matter was heard in the Supreme Court of Victoria. The appellant appealed against his sentence, arguing that the trial judge had not properly considered his health issues and drug addiction in arriving at the sentence.

The central legal issue for the court was whether the trial judge had erred in not giving adequate weight to the appellant's health issues and drug addiction when imposing sentence. The appellant contended that these factors constituted special circumstances that warranted a more lenient sentence. The prosecution maintained that the offences were serious and warranted a substantial sentence.

The court considered the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing. It noted that the trial judge had considered the appellant's drug addiction and health issues but had determined that these factors did not warrant a significantly reduced sentence. The court found that the trial judge had given proper consideration to the appellant's circumstances and that the sentence was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Aggregate sentence of three years with an aggregate non-parole period of 13 months

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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Medium Neutral Citation:	R v Holman [2019] NSWDC 292
Hearing dates:	15-16 May 2019
Decision date:	16 May 2019
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Aggregate sentence of three years with an aggregate non-parole period of 13 months
Catchwords:	SENTENCING – particular offences – property offences – aggravated (in company) break, enter and commit serious indictable offence SENTENCING – particular offences – violence offences – assault occasioning actual bodily harm SENTENCING – subjective considerations on sentence – health issues – drug addiction – special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013
Cases Cited:	R v Clark [2013] NSWCCA 260
Category:	Sentence
Parties:	Regina (Crown) Jeremy John Holman (offender)
Representation:	Counsel: Mr J McKenzie (offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Blue Water Legal Pty Ltd (offender)
File Number(s):	2018/237703