R v. Holzberger - [2007] QCA 258

SUPREME COURT OF QUEENSLAND

CITATION:

R v Holzberger [2007] QCA 258

PARTIES:

R
v
HOLZBERGER, Scott Bradley
(applicant)

FILE NO/S:

CA No 49 of 2007
DC No 311 of 2007
DC No 3246 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2007

JUDGES:

McMurdo P, Mackenzie J and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed

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 REFUSED – GENERALLY – where applicant pleaded guilty to defrauding the Commonwealth, obtaining and attempting to obtain financial advantage by deception, use of a forged document and stealing as a servant – where applicant claimed that insufficient weight was given to his rehabilitation since April 2006 – where sentencing judge recognised the positive aspects of the applicant's rehabilitation yet also acknowledged the seriousness of the dishonest conduct and the applicant's persistent past recidivism – whether appropriate weight was given to the applicant's rehabilitation

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 REFUSED – GENERALLY – where the applicant claimed that the sentence imposed was manifestly excessive due to full reparation being made – where reparation is a relevant factor under s 16A(2)(f) Crimes Act 1914 (Cth) – where the maximum penalty for each Commonwealth and State charge was ten years imprisonment – whether the sentence was manifestly excessive

Crimes Act 1914 (Cth), s 16A(2)(f), s 21B

R v Conway (2001) 121 ACrimR 177; [2001] NSW CCA 51, 2 March 2001, considered
R v Kovacevic (2000) 111 ACrimR 131; [2000] SASC106, 20 April 2000, considered

COUNSEL:

P E Smith for the applicant
P G Huygens for the Commonwealth Director of Public Prosecutions and M J Copley for the Director of Public Prosecution (Queensland) for the respondent

SOLICITORS:

Gilshenan & Luton Lawyers for the applicant
Commonwealth Director of Public Prosecutions and Director of Public Prosecutions (Queensland) for the respondent

URDO PMcM: The applicant, Scott Bradley Holzberger, pleaded guilty in the District Court at Brisbane on 9 February 2007 to seven Commonwealth charges contained in one indictment, namely defrauding the Commonwealth (count 1), three counts of obtaining a financial advantage by deception (counts 2, 3 and 6), two counts of attempting to obtain a financial advantage by deception (counts 4 and 7) and one count of using a forged document (count 5). These offences occurred between 12 July 2000 and 6 July 2004. He also pleaded guilty to one count Queensland charge, namely stealing as a servant. This offence was committed between 28 January and 20 April 2006. He was sentenced on…

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. Holzberger

Details

AGLC: R v Holzberger [2007] QCA 258
Case: [2007] QCA 258
Decision Date: 10 August 2007

CaseChat Overview and Summary

The matter before the court was an appeal against sentence by the convicted person, Holzberger, who had pleaded guilty to defrauding the Commonwealth, obtaining and attempting to obtain financial advantage by deception, use of a forged document and stealing as a servant. The applicant argued that insufficient weight was given to his rehabilitation since April 2006, despite the sentencing judge acknowledging the positive aspects of his rehabilitation. However, the judge also recognised the seriousness of the dishonest conduct and the applicant's persistent past recidivism. The applicant further claimed that the sentence imposed was manifestly excessive due to full reparation being made, with the maximum penalty for each Commonwealth and State charge being ten years imprisonment.

The court was required to determine whether the sentencing judge had appropriately weighed the applicant's rehabilitation and whether the sentence was manifestly excessive. The court examined the sentencing judge's recognition of the applicant's rehabilitation efforts and the seriousness of the dishonest conduct. The court also considered the relevance of full reparation as a mitigating factor under section 16A(2)(f) of the Crimes Act 1914 (Cth).

The court concluded that the sentencing judge had given appropriate weight to the applicant's rehabilitation, acknowledging both the positive aspects and the seriousness of the dishonest conduct. The court also found that the sentence was not manifestly excessive, considering the maximum penalty for each charge and the relevance of full reparation as a mitigating factor. The court therefore dismissed the application for leave to appeal.

The court's final order was that the application for leave to appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal dismissed

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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CITATION:	R v Holzberger [2007] QCA 258
PARTIES:	R v HOLZBERGER, Scott Bradley (applicant)
FILE NO/S:	CA No 49 of 2007 DC No 311 of 2007 DC No 3246 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2007
JUDGES:	McMurdo P, Mackenzie J and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal dismissed
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 REFUSED – GENERALLY – where applicant pleaded guilty to defrauding the Commonwealth, obtaining and attempting to obtain financial advantage by deception, use of a forged document and stealing as a servant – where applicant claimed that insufficient weight was given to his rehabilitation since April 2006 – where sentencing judge recognised the positive aspects of the applicant's rehabilitation yet also acknowledged the seriousness of the dishonest conduct and the applicant's persistent past recidivism – whether appropriate weight was given to the applicant's rehabilitation 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 REFUSED – GENERALLY – where the applicant claimed that the sentence imposed was manifestly excessive due to full reparation being made – where reparation is a relevant factor under s 16A(2)(f) Crimes Act 1914 (Cth) – where the maximum penalty for each Commonwealth and State charge was ten years imprisonment – whether the sentence was manifestly excessive Crimes Act 1914 (Cth), s 16A(2)(f), s 21B R v Conway (2001) 121 ACrimR 177; [2001] NSW CCA 51, 2 March 2001, considered R v Kovacevic (2000) 111 ACrimR 131; [2000] SASC106, 20 April 2000, considered
COUNSEL:	P E Smith for the applicant P G Huygens for the Commonwealth Director of Public Prosecutions and M J Copley for the Director of Public Prosecution (Queensland) for the respondent
SOLICITORS:	Gilshenan & Luton Lawyers for the applicant Commonwealth Director of Public Prosecutions and Director of Public Prosecutions (Queensland) for the respondent