Rex v Holland - [2024] NSWDC 139

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Rex v HOLLAND [2024] NSWDC 139
Hearing dates: 5 April 2024
Date of orders: 6 May 2024
Decision date: 06 May 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see paragraphs [105]-[110]

Catchwords:
CRIME – threaten to use offensive weapon with intent to commit indictable offence of intimidation
SENTENCE – plea of guilty – form 1 – s166 certificate – threat of self harm – threat to harm others – weapon not loaded but police did not know – hid from police – mental health conditions – drug use at the time – genuine expression of remorse, efforts towards rehabilitation and treatment – unlikely to reoffend – good prospects of rehabilitation

Legislation Cited:
Crimes Act, 1900
Crimes (Domestic & Personal Violence) Act 2007
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017
Criminal Procedure Act, 1986
Firearms Act, 1996
Road Transport Act, 2013

Cases Cited:
Bugmy v the Queen [2013] HCA 37
DG (No. 1) v R [2023] NSWCCA 320
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Khanat v R (Cth) [2024] NSWCCA 41
R v Mostyn (2004) 145 A Crim R 304
R v Mostyn (2004) 145 A Crim R 304
Stanley v DPP [2023] HCA 3
Tepania v R [2018] NSWCCA 289
The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146
Tonga, Samuel [2023] NSWCCA 120
Zheng v R [2023] NSWCCA 64

Category: Sentence
Parties: Rex
Brandon William HOLLAND
Representation:
Counsel:
Ms O’Neill for the offender
Solicitors:
Mr F Lawrance, Office of the Director of Public Prosecutions.
Mr Z Tankard, Tankards Law

File Number(s): 2022/378770
Publication restriction: No

JUDGMENT

The offender was committed for sentence on 1 November 2023 in respect of a charge that he:

Between 12.30 pm on 10 December 2022 and 5.20 am on 11 December 2022 at Forest Hill in the State of New South Wales did threaten to use an offensive weapon with intent to commit the indictable offence of Intimidation, contrary to s 33B(1)(a) of the Crimes Act, 1900.

The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court on 5 April 2024 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence for which the offender appears for sentence is 12 years imprisonment. Parliament has not specified a standard non-parole period in respect of that offence.
The offender asks that when passing sentence on the offence contrary to s 33B(1)(a) of the Crimes Act I take into account a charge of Intimidation contrary to s 13(1) of the Crimes (Domestic & Personal Violence) Act 2007 that attaches to a Form 1 document. In passing sentence I will need to ensure that I give proper regard to the principles enunciated by the Court of Criminal Appeal in The…

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 Rex v Holland

Details

AGLC: Rex v Holland [2024] NSWDC 139
Case: [2024] NSWDC 139
Decision Date: 06 May 2024

CaseChat Overview and Summary

The case of Rex v Holland involved the defendant, Holland, who pleaded guilty to threatening to use an offensive weapon with the intent to commit the indictable offence of intimidation. The matter was heard in the higher court where the presiding judge had to determine an appropriate sentence for Holland. The defendant had a history of mental health conditions, drug use, and had concealed himself from the police while holding an unloaded weapon, though this was unknown to them at the time.

The central legal issue the court needed to address was the appropriate sentencing for Holland, taking into account his guilty plea, the circumstances surrounding the offence, and his personal circumstances. The court had to consider the severity of the offence, Holland's history of mental health issues, his drug use at the time of the offence, and his expressed remorse and efforts towards rehabilitation. Additionally, the court needed to assess the likelihood of Holland reoffending and his potential for rehabilitation.

In delivering the judgment, the court recognised Holland's guilty plea, his genuine expression of remorse, and his efforts towards rehabilitation and treatment. The court also took into account the circumstances of the offence, including the threat of self-harm and harm to others, although the weapon was not loaded. The court acknowledged that Holland had hidden from the police, but found that his actions were influenced by his mental health conditions and drug use. The court concluded that there was a low risk of reoffending and that Holland had good prospects of rehabilitation. After considering all these factors, the court sentenced Holland in accordance with the legal framework and the mitigating factors presented.

The court ordered Holland to be sentenced as follows: [detailed orders as per paragraphs [105]-[110] in the judgment].

Orders

Orders of the court

Sentenced – see paragraphs [105]-[110]

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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Medium Neutral Citation:	Rex v HOLLAND [2024] NSWDC 139
Hearing dates:	5 April 2024
Date of orders:	6 May 2024
Decision date:	06 May 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragraphs [105]-[110]
Catchwords:	CRIME – threaten to use offensive weapon with intent to commit indictable offence of intimidation SENTENCE – plea of guilty – form 1 – s166 certificate – threat of self harm – threat to harm others – weapon not loaded but police did not know – hid from police – mental health conditions – drug use at the time – genuine expression of remorse, efforts towards rehabilitation and treatment – unlikely to reoffend – good prospects of rehabilitation
Legislation Cited:	Crimes Act, 1900 Crimes (Domestic & Personal Violence) Act 2007 Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 Criminal Procedure Act, 1986 Firearms Act, 1996 Road Transport Act, 2013
Cases Cited:	Bugmy v the Queen [2013] HCA 37 DG (No. 1) v R [2023] NSWCCA 320 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Khanat v R (Cth) [2024] NSWCCA 41 R v Mostyn (2004) 145 A Crim R 304 R v Mostyn (2004) 145 A Crim R 304 Stanley v DPP [2023] HCA 3 Tepania v R [2018] NSWCCA 289 The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 Tonga, Samuel [2023] NSWCCA 120 Zheng v R [2023] NSWCCA 64
Category:	Sentence
Parties:	Rex Brandon William HOLLAND
Representation:	Counsel: Ms O’Neill for the offender Solicitors: Mr F Lawrance, Office of the Director of Public Prosecutions. Mr Z Tankard, Tankards Law
File Number(s):	2022/378770
Publication restriction:	No