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R v Holmes

R v Holmes

Case [2008] QCA 259 5 September 2008

Appeal

Limitation Periods

Sentencing

Plea of Guilty, Contrition and Cooperation

Assistance to Authorities and Cooperation

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Holmes [2008] QCA 259

PARTIES:

R
v
HOLMES, Todd Michael
(applicant/appellant)

FILE NO/S:

CA No 142 of 2008
SC No 1207 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2008

JUDGES:

Muir and Fraser JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Application for leave to appeal against sentence
granted.

2.Appeal allowed and the orders made below set aside.

3.That in their stead and subject to the applicant
agreeing to the order being made after the
explanation to him required by s 95 of the Penalties
and Sentences Act 1992 (Qld):

(a)The applicant be sentenced to probation for
two years, such order to contain the
conditions in s 93 of that Act.

(b) The applicant must report to an authorised
Corrective Services Officer at a time and
place agreed between the parties or in default
thereof, such time and place as are specified
by a judge.

4.That no convictions be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant was convicted on his pleas of guilty of one count of possession of a dangerous drug, three counts of supplying a dangerous drug, and a summary count of possession of money suspected of being the proceeds of selling a dangerous drug – where the applicant was sentenced to 12 months imprisonment to be served by way of an intensive correction order – where the applicant was a youthful first time offender – where the applicant had several mitigating factors in his favour – where but for the applicant’s confessions it was unlikely that he would have been charged with two of the supplying charges – where the applicant had demonstrated remorse, had undergone rehabilitation and had good prospects of continued rehabilitation – where the recording of a conviction may have posed a genuine threat to the applicant’s future employment prospects – whether in the circumstances the sentence was manifestly excessive

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION – ASSISTANCE TO AUTHORITIES AND CO-OPERATION – where the applicant’s cooperation with the authorities significantly expanded the extent of his liabilities – whether the sentence imposed afforded the applicant sufficient leniency so as to reflect the extent of his cooperation

Penalties and Sentences Act 1992 (Qld), s 12, s 95

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, followed
R v Brown; ex parte Attorney-General of Queensland [1994] 2 Qd R 182; [1993] QCA 271, cited
R v Cay Gersch & Schell; ex…

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 Holmes

Details

AGLC: R v Holmes [2008] QCA 259
Case: [2008] QCA 259
Decision Date: 5 September 2008

CaseChat Overview and Summary

The case of R v Holmes involved an appeal against the sentence imposed by the lower court. The applicant, who had pled guilty to multiple drug-related offences, was sentenced to 12 months imprisonment through an intensive correction order. The applicant sought leave to appeal, arguing that the sentence was manifestly excessive and did not adequately reflect his cooperation with authorities and his status as a youthful first-time offender. The central legal issues were whether the sentence was excessive given the applicant's mitigating factors and whether the sentence sufficiently acknowledged his cooperation with the authorities.

The court examined the applicant's cooperation with the authorities, which had expanded the extent of his liabilities. It also considered the applicant's status as a first-time offender, his demonstrated remorse, and the potential negative impact of a recorded conviction on his future employment prospects. The court found that the sentence did not adequately reflect these factors and was therefore manifestly excessive. The court further noted that the applicant's cooperation warranted a degree of leniency that was not reflected in the original sentence.

Consequently, the court granted the application for leave to appeal and allowed the appeal. It set aside the original sentence and ordered that the applicant be sentenced to probation for two years with the conditions specified in section 93 of the Penalties and Sentences Act 1992 (Qld). Additionally, the court ordered that no convictions be recorded, subject to the applicant agreeing to the order after the required explanation under section 95 of the same Act.

Orders

Orders of the court

1.Application for leave to appeal against sentence

granted.

2.Appeal allowed and the orders made below set aside.

3.That in their stead and subject to the applicant

agreeing to the order being made after the

explanation to him required by s 95 of the Penalties

and Sentences Act 1992 (Qld):

(a)The applicant be sentenced to probation for

two years, such order to contain the

conditions in s 93 of that Act.

(b) The applicant must report to an authorised

Corrective Services Officer at a time and

place agreed between the parties or in default

thereof, such time and place as are specified

by a judge.

4.That no convictions be recorded.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Holmes [2008] QCA 259

Most Recent Citation

R v Chinmaya [2009] QCA 227

Cases citing this decision · 8 of 8 shown

R v Ali
[2023] QCA 207 Para 16

…possession or supply of drugs is profitable then the profitability is an aggravating factor in the sentencing process. Counsel referred to R v Holmes [2008] QCA 259 [33] and R v Kleimeyer [2018] QCA 9 p 4.…
R v Kleimeyer
[2018] QCA 9 Para 22

…that one of the factors influencing a sentencing judge is the need to deter others from this kind of offending. As Justice Fraser said in R v Holmes [2008] QCA 259 at [22]:…
Collishaw v Commissioner of Police
[2016] QDC 257

…tence – whether sentence manifestly excessive. Justices Act 1886 (Q) ss 222, 223 R v Crook [2012] QCA 305 R v Doraho [2011] QCA 29 R v Holmes [2008] QCA 259 R v Jackson [2011] QCA 103 R v Lyle [2013] QCA 293 R v Meid [2006] QCA 124 R v Pratt [2008] QCA 402 Teelow v The Commissioner of Police [2009] 2 Qd R 489 COU…
Kim v Commissioner of Police
[2016] QDC 44 Para 1

…gistrate failed to give due recognition to her cooperation with the authorities and has relied on the matters of R v PW [2005] QCA 177 and R v Holmes [2008] QCA 259 in support of that submission.…
McKay v Dedman
[2015] QDC 55 Para 1

…o respects. First, s 12 of the Penalties and Sentences Act 1992 requires the Court to consider whether or not to record a conviction. In R v Holmes [2008] QCA 259 at [30], Fraser JA, when considering the issue of the exercise of discretion in relation to recording a conviction, made this observation:…
R v Versac
[2014] QCA 181 Para 1

…contrition.” The applicant referred also to cases applying that principle, particularly R v Wallace [2008] QCA 135, R v Holmes [2008] QCA 259, R v Byrnes; ex parte A-G (Qld) [2011] QCA 40, and R v Ellis (1986) 6 NSWLR 603.…
R v Thomson
[2011] QCA 191

…(Qld), s 129(1)(c) Penalties and Sentences Act 1992 (Qld), s 126(6)(b) R v Chinmaya [2009] QCA 227, considered R v Holmes [2008] QCA 259, considered R v Sartori [2006] QCA 284, considered COUNSEL: C Morgan for the applicant M B Lehane for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director…
R v Chinmaya
[2009] QCA 227 Para 1

…ence of possessing a large quantity of a schedule 2 drug. I adhere to my observation, with which Muir JA and Philippides J concurred, in R v Holmes [2008] QCA 259 at [22] that:…

View all 8 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Wallace
[2008] QCA 135 Para 1

…itled to a degree of consideration which adequately recognised that his cooperation significantly expanded the extent of his liabilities: R v Wallace [2008] QCA 135, at p 5. The sentencing judge did refer to the applicant’s cooperation with the authorities. His Honour said that “you cooperated in an interview wit…
R v Ndizeye
[2006] QCA 537 Para 1

…at a recorded conviction might count against him in his necessary application for a supervisor’s licence: see the discussion in R v Ndizeye [2006] QCA 537 at [16] – [19], per Jerrard JA. On the evidence here, that would be inappropriate. It is to be avoided in the interests of the applicant’s rehabilitation, a fa…
R v Sartori
[2006] QCA 284 Para 1

…es, for possession of this drug for commercial purposes and even for merely personal use. The respondent’s counsel also referred to R v Sartori [2006] QCA 284, but that was a much more serious case: it is not of assistance here.…
R v Cay, Gersch and Schell; ex parte
[2005] QCA 467 Para 1

…nd the offences were out of character for him. That submission is supported by R v Cay Gersch & Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, but whether or not there was any error in the sentencing judge’s discretion is of course a different question.…
R v PW
[2005] QCA 177 Para 1

…In R v PW [2005] QCA 177, an offender similarly volunteered that he had engaged in other offences not known to police. The sentencing judge there also expressly took into account the applicant’s cooperation with the administration of justice. Although the facts of that case otherwise bear no resemblance to the fa…
R v Kennedy
[2000] QCA 140 Para 1

…The respondent referred to the statement in R v Kennedy [2000] QCA 140 that Richardson involved an appeal from a sentence imposed in the Magistrates Court where the maximum penalty was imprisonment for two years, but that point does not seem to have been important in Richardson itself. Richardson volunteered his…
AB v The Queen
[1999] HCA 46 Para 1

…ld generally be treated even more leniently than an offender who confesses to crimes known to the authorities: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46.…
R v Brown; ex parte Attorney-General
[1993] QCA 271 Para 1

…cumstances might lead to one or other in fact having greater weight: R v Brown; ex parte Attorney-General of Queensland [1994] 2 Qd R 182 at 185; [1993] QCA 271, R v Briese; ex parte Attorney-General of Queensland [1998] 1 Qd R 487 at 493; [1997] QCA 010, R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158…
[1997] QCA 010
[1997] QCA 010 Para 1

…ney-General of Queensland [1994] 2 Qd R 182 at 185; [1993] QCA 271, R v Briese; ex parte Attorney-General of Queensland [1998] 1 Qd R 487 at 493; [1997] QCA 010, R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467 at [40].…
The applicant's counsel also relied upon R v Richardson
[1997] QCA 161 Para 1

…The applicant's counsel also relied upon R v Richardson [1997] QCA 161. Richardson pleaded guilty to possessing and supplying cannabis and to possessing and supplying amphetamine. He had supplied cannabis and amphetamines to his workmates for some five months in exchange for free cannabis and amphetamines for his…

Legislation cited in this decision · 3

Penalties and Sentences Act 1992 (Qld)
12 2 mentions (from Para 1)
Queensland Building Services Authority Act 1991 (Qld)
1 mention (from Para 1)
Sentences Act 1992 (Qld)
1 mention

CITATION:	R v Holmes [2008] QCA 259
PARTIES:	R v HOLMES, Todd Michael (applicant/appellant)
FILE NO/S:	CA No 142 of 2008 SC No 1207 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2008
JUDGES:	Muir and Fraser JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.Application for leave to appeal against sentence granted. 2.Appeal allowed and the orders made below set aside. 3.That in their stead and subject to the applicant agreeing to the order being made after the explanation to him required by s 95 of the Penalties and Sentences Act 1992 (Qld): (a)The applicant be sentenced to probation for two years, such order to contain the conditions in s 93 of that Act. (b) The applicant must report to an authorised Corrective Services Officer at a time and place agreed between the parties or in default thereof, such time and place as are specified by a judge. 4.That no convictions be recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant was convicted on his pleas of guilty of one count of possession of a dangerous drug, three counts of supplying a dangerous drug, and a summary count of possession of money suspected of being the proceeds of selling a dangerous drug – where the applicant was sentenced to 12 months imprisonment to be served by way of an intensive correction order – where the applicant was a youthful first time offender – where the applicant had several mitigating factors in his favour – where but for the applicant’s confessions it was unlikely that he would have been charged with two of the supplying charges – where the applicant had demonstrated remorse, had undergone rehabilitation and had good prospects of continued rehabilitation – where the recording of a conviction may have posed a genuine threat to the applicant’s future employment prospects – whether in the circumstances the sentence was manifestly excessive CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION – ASSISTANCE TO AUTHORITIES AND CO-OPERATION – where the applicant’s cooperation with the authorities significantly expanded the extent of his liabilities – whether the sentence imposed afforded the applicant sufficient leniency so as to reflect the extent of his cooperation Penalties and Sentences Act 1992 (Qld), s 12, s 95 AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, followed R v Brown; ex parte Attorney-General of Queensland [1994] 2 Qd R 182; [1993] QCA 271, cited R v Cay Gersch & Schell; ex…