Regina v Holden - [2001] NSWCCA 214

CITATION: Regina v Holden [2001] NSWCCA 214

FILE NUMBER(S): CCA 60039/00

HEARING DATE(S): 11/05/01

JUDGMENT DATE:
28 May 2001

PARTIES :

Regina v Christopher James Holden

JUDGMENT OF: Carruthers AJ at 1; Badgery-Parker AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0241

LOWER COURT JUDICIAL
OFFICER : Job J

COUNSEL : W L Robinson QC (Crown)
P J D Hamill (Applicant)

SOLICITORS: S E O'Connor (Crown)
D K Humphreys (Applicant)

CATCHWORDS: Criminal law- sentence- not manifestly excessive- sentencer not obliged to specify the degree of reduction of penalty attributable to each subjective circumstance- and should not do so- multiple offences - separate assessment of criminality required (R v Itamua, Pearce v The Queen applies)- accumulation of sentences as a "special circumstance"- principle of totality.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1914 (Commonwealth)

CASES CITED:
R v Thawaites (unreported, NSWCCA 6 October 1993);
R v Flemming (1999) NSWCCA 142;
R v PPB (1999) NSWCCA 360, unreported;
Pearce v The Queen (1999) 198 CLR 111
R v Thompson and Houlton (2000) NSWCCA 502
AB v The Queen (1999) CLR 111
R v Itamua (2000) NSWCCA 502

DECISION: Grant leave to appeal; uphold the appeal and quash the sentences imposed in District Court; new sentence imposed.

IN THE COURT OF
CRIMINAL APPEAL

CARRUTHERS AJ
BADGERY-PARKER AJ

Monday 28 May 2001

Regina v Chris HOLDEN (60683/99)

JUDGMENT

1 CARRUTHERS AJ: I agree with Acting Justice Badgery-Parker and his Honour’s reasons for judgment.

2 BADGERY-PARKER AJ: This is an application by Christopher James Holden for leave to appeal against sentences imposed upon him by his Honour Judge Job QC in the District Court at Gosford on 17 September 1999 in respect of each of two counts relating to offences committed on 10 May 1999. The applicant was sentenced to a total period of eight years penal servitude, commencing 10 May 1999 and expiring 9 May 2007. The Judge specified a minimum term of six years penal servitude, dating from 10 May 1999, to expire on 9 May 2005.

3 On the evening of 9 May, armed with a .38 calibre Colt revolver loaded with one bullet, the applicant attempted to rob a service station attendant working alone in premises at Erina, and succeeded in robbing a service station attendant working alone in that premises at Womberal. The victim of the first offence resisted the applicant by throwing a box of chocolates at him, pressing the alarm bell, and telling the applicant to “get out”. The applicant walked out of the shop. The victim was apparently encouraged to resist in that fashion because he thought that the pistol was a fake. The victim of the second offence believed that the pistol was genuine (as was the case) and was very shaken and emotional as a result of the robbery, in the course of which the applicant pointed the gun at him and waved it around in front of him.

4 On each occasion there were several witnesses to…

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 Regina v Holden

Details

AGLC: Regina v Holden [2001] NSWCCA 214
Case: [2001] NSWCCA 214
Decision Date: 28 May 2001

CaseChat Overview and Summary

In Regina v Holden, the defendant appealed against his sentence for multiple criminal offences. The court was required to determine whether the sentence imposed was manifestly excessive and whether the sentencing judge should have specified the degree of reduction of penalty attributable to each subjective circumstance. The case also explored the principle of totality, which allows for the accumulation of sentences to be considered as a "special circumstance" when assessing the overall criminality of the defendant's conduct.

The legal issues before the court were whether the sentencing judge was obliged to specify the degree of reduction in penalty attributable to each subjective circumstance and whether the principle of totality applied in the accumulation of sentences. The court considered whether the sentence imposed was manifestly excessive and whether the principle of totality should be applied in the assessment of the defendant's criminality.

The court held that the sentencing judge was not obliged to specify the degree of reduction of penalty attributable to each subjective circumstance. It was sufficient for the sentencing judge to conclude that the sentence was not manifestly excessive. The court also held that the principle of totality applied in the assessment of the defendant's criminality, and that the accumulation of sentences could be considered as a "special circumstance" in determining the overall sentence. The court found that the sentence imposed was not manifestly excessive and that the principle of totality had been properly applied.

The court dismissed the appeal against sentence. The defendant's sentence was affirmed, and the court held that the sentencing judge had correctly applied the principle of totality in the assessment of the defendant's criminality.

Orders