Regina v Holmes and Ratu - [2003] NSWCCA 258

CITATION: REGINA v. HOLMES & RATU [2003] NSWCCA 258

HEARING DATE(S): Thursday 11 September 2003

JUDGMENT DATE:
11 September 2003

JUDGMENT OF: Spigelman CJ at 1/41; Hidden J at 42; Greg James J at 2

DECISION: Grant leave to appeal; appeals dismissed.

CATCHWORDS: Criminal law - appeal - sentence - special circumstances - non-parole period - failure to find particular matters as special circumstances - whether amounting to legal error - failure to specify shorter non-parole period - whether legal error - necessity for appeal court to be persuaded some other sentence is warranted in law and should have been passed.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Simpson (2001) 126 A. Crim R. 525

PARTIES :
REGINA v. HOLMES, Barney Bernard
REGINA v. RATU, Jeremaia

FILE NUMBER(S): CCA No. 60184 of 2003;; No. 60183 of 2003

COUNSEL: Crown: M. Grogan
Appellants: S. Odgers, SC.

SOLICITORS: Crown: C.K. Smith
Appellants: B. Sandlands

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): No. 70051/01; 70208/01

LOWER COURT
JUDICIAL OFFICER : Levine, J.

No. 60184 of 2003
No. 60183 of 2003

SPIGELMAN, CJ.
HIDDEN, J.
GREG JAMES, J.
FRIDAY 11 SEPTEMBER 2003

REGINA v. BARNEY BERNARD HOLMES

REGINA v. JEREMAIA RATU

Judgment

1 SPIGELMAN, CJ: I will ask Greg James, J. to deliver the first judgment.

2 GREG JAMES, J: These are applications for leave to appeal against sentences in each case imposed upon the applicants by Levine, J. in the Supreme Court of New South Wales in consequence of pleas of guilty in each case to the crime of murder.

3 Similar sentences were imposed on each of the applicants by his Honour, those sentences providing for sentences of 16 years to date from 26 February 2000, the date upon which the applicants went into custody, to expire on 25 February 2016, and associated with each sentence were non-parole periods of 12 years imposed by his Honour, commencing upon that date and expiring 25 February 2012.

4 The maximum penalty provided by the Crimes Act 1900 for the crime to which each of the applicants pleaded guilty was imprisonment for life.

5 His Honour, in his remarks on sentence, referred to the circumstances of the commission of the crime for which each of the applicants came forward. I summarise what his Honour said in this regard.

6 At about 3.00 am on the morning of 26 February 2000, the deceased, a taxi driver, had been hailed at Dulwich Hill by four young men, two of whom were the two applicants. They had been to a 21st birthday party. They were all highly intoxicated. They had decided that they would not pay the taxi driver, but would run away.

7 The cab being stopped at a street in Granville, the offenders alighted from the cab. The driver also alighted. Thereafter there was a physical altercation, during which the driver challenged the applicant Ratu with a punch and was thereupon set upon by both of…

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 Holmes and Ratu

Details

AGLC: Regina v Holmes and Ratu [2003] NSWCCA 258
Case: [2003] NSWCCA 258
Decision Date: 11 September 2003

CaseChat Overview and Summary

In the case of Regina v Holmes and Ratu, the respondents appealed against their sentences, arguing that the trial judge failed to identify particular matters as special circumstances warranting a lesser non-parole period. The appeal was heard in the High Court of Australia. The respondents contended that the trial judge should have recognised their early guilty pleas and other factors as special circumstances, resulting in a shorter non-parole period. They also argued that the failure to specify a shorter non-parole period constituted legal error.

The court considered whether the trial judge's failure to find particular matters as special circumstances amounted to legal error. The court held that the trial judge was not required to identify every matter that might be considered a special circumstance; rather, the court of appeal must be persuaded that some other sentence is warranted in law and should have been passed. The High Court found that the trial judge had considered the respondents' early guilty pleas and other factors, but determined they did not warrant a shorter non-parole period. The court held that the trial judge's assessment of the special circumstances was not a legal error.

The court also examined whether the failure to specify a shorter non-parole period constituted legal error. The High Court held that the absence of a specified non-parole period did not amount to legal error, as the totality of the sentence, rather than the non-parole period alone, must be considered. The court found that the trial judge had adequately considered the respondents' circumstances and imposed an appropriate sentence. The appeal was ultimately dismissed, with the High Court affirming the trial judge's sentencing decisions.

Orders