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R v Holman (No 2)

R v Holman (No 2)

Case [2024] NSWDC 325 18 July 2024

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District Court

New South Wales

Medium Neutral Citation: R v Holman (No 2) [2024] NSWDC 325
Hearing dates: 27 June 2024
Date of orders: 18 July 2024
Decision date: 18 July 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Aggregate sentence of 4 years with non-parole period of 2 years and 6 months, at [92] to [95].

Catchwords:
SENTENCING — Relevant factors on sentence — Bugmy considerations — Deterrence — Principles relating to domestic violence — Special circumstances found due to risk of institutionalisation and need for ongoing supervision given offender’s past criminal history.
CRIME — Domestic violence — Stalking or intimidation, use offensive weapon with intent to commit serious offence, common assault.

Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kennedy v R [2022] NSWCCA 215
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Patsan v R [2018] NSWCCA 129
Quarta v R [2023] NSWCCA 173
R v Bartolic-Arnaez [2022] NSWDC 280
R v Holman (No 1) [2024] NSWDC 267
R v Tisserand [2021] NSWDC 543
R v Wilson (No.3) [2021] NSWDC 174
Shavali v R [2022] NSWCCA 178
Yaman v R [2020] NSWCCA 239
Zerafa v R [2023] NSWCCA 109
Texts Cited:
Nil

Category: Sentence
Parties: Rex (Crown)
Jeremy Holman (Offender)
Representation:
Counsel:
B Queenan (Crown)
P Cranney (Offender)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Tony Cox Lawyers & Conveyancers (Offender)

File Number(s): 2022/00080854
Publication restriction: Nil

JUDGMENT

On 19 February 2024 Jeremy Holman pleaded Not Guilty on his arraignment in Taree District Court with respect to an indictment which contained six counts relating to allegations of threatening or violent behaviour towards his former partner, Brearn Morris.
The matter proceeded as a judge-alone trial for some seven days between 19 February 2024 and 27 February 2024. Given the volume of work in the Taree Sittings, judgment following the trial was reserved.
On 15 March 2024 the verdict judgment was delivered in Sydney. Guilty verdicts were returned with respect to 5 out of the 6 counts in the indictment. A verdict of Not Guilty was returned with respect to one count, Count 5.
The Guilty verdicts related to the following offences:

One count of using an offensive weapon with intent to commit an indictable offence, namely, common assault. This is an offence against section 33B(1) (a) of the Crimes Act 1900 and carries a maximum penalty of 12 years imprisonment;

One count of common assault contrary to section 61 of the Crimes Act 1900, carrying a maximum penalty of two years imprisonment; and

Three counts of intimidation contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. Each of these offences carries a maximum penalty of five years imprisonment.

FACTUAL BACKGROUND

The detail of the facts…

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 (No 2)

Details

AGLC: R v Holman (No 2) [2024] NSWDC 325
Case: [2024] NSWDC 325
Decision Date: 18 July 2024

CaseChat Overview and Summary

In R v Holman, the defendant was convicted of stalking or intimidation, use of an offensive weapon with intent to commit a serious offence, and common assault, all of which were acts of domestic violence. The case was heard and determined in a relevant Australian court. The primary dispute centred on the appropriate sentence to be imposed on Holman, taking into consideration his extensive criminal history and the particular circumstances of the offences, which included the use of an offensive weapon and the nature of the domestic violence.

The legal issues before the court involved determining the relevant factors for sentencing, with a particular focus on the principles that apply in cases involving domestic violence. The court also had to consider the principles of deterrence and whether there were any special circumstances that warranted a departure from the usual sentencing practices. The defence argued for a sentence that would take into account Holman’s potential risk of institutionalisation and the need for ongoing supervision, given his past criminal history.

The court, in its reasoning, acknowledged the seriousness of the offences and the need for deterrence. It also recognised the special circumstances of the case, particularly the risk of Holman being further institutionalised if not properly supervised and the need for ongoing management of his criminal behaviour. In light of these considerations, the court determined that an aggregate sentence of four years was appropriate, with a non-parole period of two years and six months. The court balanced the need for punishment, deterrence, and the rehabilitation of Holman, taking into account his past criminal conduct and the specific circumstances of the domestic violence offences.

The final orders of the court were to impose an aggregate sentence of four years with a non-parole period of two years and six months. This decision was made after careful consideration of all relevant factors, including the nature of the offences, Holman’s criminal history, and the principles of sentencing in cases of domestic violence.

Orders

Orders of the court

Aggregate sentence of 4 years with non-parole period of 2 years and 6 months, at [92] to [95].

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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Citations

AGLC Citation

R v Holman (No 2) [2024] NSWDC 325

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

R v RT
[2024] NSWDC 267 Para 5

…the trial and the factual findings giving rise to the verdicts of Guilty are to be found in the verdict judgment of 15 March 2024: R v Holman (No 1) [2024] NSWDC 267.…
Quarta v The King
[2023] NSWCCA 173

…528 Kennedy v R [2022] NSWCCA 215 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Patsan v R [2018] NSWCCA 129 Quarta v R [2023] NSWCCA 173 R v Bartolic-Arnaez [2022] NSWDC 280 R v Holman (No 1) [2024] NSWDC 267 R v Tisserand [2021] NSWDC 543 R v Wilson (No.3) [2021] NSWDC 174 Shavali v R [2022] NSWCCA 1…
Zerafa v The King
[2023] NSWCCA 109 Para 74

…Zerafa v R [2023] NSWCCA 109 was an appeal against the severity of an aggregate sentence imposed by Colefax DCJ with respect to three offences arising from threatening conduct with a firearm. The offending conduct involved the brandishing of a gel blaster pistol and threatening to shoot or kill a number of victims.…
Kennedy v R
[2022] NSWCCA 215 Para 46

…The Crown also made reference to Kennedy v R [2022] NSWCCA 215 which in the Crown’s submission was a matter not dissimilar to the present.…
Shavali v R
[2022] NSWCCA 178 Para 71

…In Shavali v R [2022] NSWCCA 178 the Court of Criminal Appeal was required to deal with an appeal which had little, if any, utility. The facts giving rise to 2 offences contrary to s 33B(1)(a) of the Crimes Act 1900 related to threatening conduct with a knife in the context of the breakup of a domestic relationship.…
R v Bartolic-Arnaez
[2022] NSWDC 280 Para 65

…R v Bartolic-Arnaez [2022] NSWDC 280 was a sentence in the District Court following pleas of guilty by the offender to a number of separate offences arising out of his use of an authorised firearm. The offender had intervened in a dispute between two other male residents of a caravan park by going to the caravan of…
R v Tisserand
[2021] NSWDC 543 Para 57

…R v Tisserand [2021] NSWDC 543 was a sentence imposed for an offence under section 33B (1)(a) of the Crimes Act 1900 relating to the use of an offensive instrument, namely petrol, with intent to commit the indictable offence of intimidation. The actions of the offender were in contravention of an apprehended domest…
R v Wilson (No.3)
[2021] NSWDC 174 Para 51

…In R v Wilson (No.3) [2021] NSWDC 174, Abadee DCJ sentenced an offender with respect to a number of offences that occurred in the context of threatening behaviour towards a victim with the intention of recovering property in the possession of the victim which allegedly belonged to someone else. The offender had gon…
Yaman v R
[2020] NSWCCA 239 Para 43

…In Yaman v R [2020] NSWCCA 239, the offender sought leave to appeal against the sentences imposed with respect to offences committed against his former girlfriend. Acting Judge Frearson SC had imposed a sentence of 6 years and 10 months with a non-parole period of 4 years and 6 months for the offence of aggravated b…
Patsan v R
[2018] NSWCCA 129 Para 40

…The Court was reminded by the Crown in submissions of the statements of principle found in Patsan v R [2018] NSWCCA 129. Patsan was an appeal against the severity of a sentence imposed by Judge Bright for recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW) to which the appellant…
Cherry v R
[2017] NSWCCA 150

…“134. The point was given emphasis in Cherry v R [2017] NSWCCA 150, where Johnson J said at [78], (Macfarlane JA and Harrison J agreeing): “It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting p…
R v Kilic
[2016] HCA 48

…Recently the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 said at [21] that: "current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence."…
JM v R
[2014] NSWCCA 297 Para 79

…mposed, rather than the individual indicative sentences, the indicative sentences "may be a guide" as to whether error can be established: see JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].…
Munda v Western Australia
[2013] HCA 38

…2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Firearms Act 1996 (NSW) Cases Cited: Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Kennedy v R [2022] NSWCCA 215 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Pats…
Bugmy v The Queen
[2013] HCA 37 Para 27

…d would mean that his moral culpability is lessened to some degree in accordance with the principles articulated in Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571.…
Markarian v The Queen
[2005] HCA 25

…w from Munda at [54]). It has another dimension – to maintain public confidence in the administration of justice: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [82] (McHugh J).”…

Legislation cited in this decision · 4

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention (from Para 3)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Firearms Act 1996 (TAS)
1 mention

Medium Neutral Citation:	R v Holman (No 2) [2024] NSWDC 325
Hearing dates:	27 June 2024
Date of orders:	18 July 2024
Decision date:	18 July 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Aggregate sentence of 4 years with non-parole period of 2 years and 6 months, at [92] to [95].
Catchwords:	SENTENCING — Relevant factors on sentence — Bugmy considerations — Deterrence — Principles relating to domestic violence — Special circumstances found due to risk of institutionalisation and need for ongoing supervision given offender’s past criminal history. CRIME — Domestic violence — Stalking or intimidation, use offensive weapon with intent to commit serious offence, common assault.
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Kennedy v R [2022] NSWCCA 215 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Patsan v R [2018] NSWCCA 129 Quarta v R [2023] NSWCCA 173 R v Bartolic-Arnaez [2022] NSWDC 280 R v Holman (No 1) [2024] NSWDC 267 R v Tisserand [2021] NSWDC 543 R v Wilson (No.3) [2021] NSWDC 174 Shavali v R [2022] NSWCCA 178 Yaman v R [2020] NSWCCA 239 Zerafa v R [2023] NSWCCA 109
Texts Cited:	Nil
Category:	Sentence
Parties:	Rex (Crown) Jeremy Holman (Offender)
Representation:	Counsel: B Queenan (Crown) P Cranney (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Tony Cox Lawyers & Conveyancers (Offender)
File Number(s):	2022/00080854
Publication restriction:	Nil