Wayne Holten v Regina - [2005] NSWCCA 408

CITATION:
Wayne Holten v Regina [2005] NSWCCA 408

HEARING DATE(S): 29/07/2005

JUDGMENT DATE:

28 November 2005

JUDGMENT OF:
Hulme J at 1; Hidden J at 14; Latham J at 49

DECISION:
Leave granted, appeal allowed. By majority, sentence for armed robbery (Hennessy) reduced to fixed term of five-and-a-half years from 9 November 2005. Sentence for specially aggravated kidnapping reduced to nine years, with non-parole period of five-and-a-half years, from 9 November 2005. Sentences on other charges confirmed. Applicant eligible for release on parole on 8 May 2011.

CATCHWORDS:
CRIMINAL LAW - Application for leave to appeal against sentence - offences of armed robbery, specially aggravated detaining for advantage and related offences arising from three separate incidents - sentencing judge's approach to aggravating factors under s21A, Crimes (Sentencing Procedure) Act - whether sentences excessive - youth of offender - length of effective non-parole period

LEGISLATION CITED:

Crimes Act
Crimes (Sentencing Procedure) Act s21A
Criminal Appeal Act

CASES CITED:
R v Johnson [2004] NSWCCA 76
Veen v The Queen [No2] (1988) 164 CLR 465
R v Wickham [2004] NSWCCA 193
R v Henry (1990) 46 NSWLR 346
GDP (1991) 53 ACrimR 112
Fernando (1992) 76 ACrimR 58
Tran [1999] NSWCCA 109
Nichols (1991) 57 ACrim R 396
Hearne (2001) 124 ACrim R 451

PARTIES:
Wayne Daniel Holten (applicant)
Regina (respondent)

FILE NUMBER(S):
CCA 2005/603

COUNSEL:
P J Pearsall (applicant)
Ms J Girdham (Crown)

SOLICITORS:
Peggy Dwyer (Sydney Regional Aboriginal Corporation Legal Services) (applicant)
S Kavanagh (Solicitor for Public Prosecutions) (respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0218; 03/21/0219

LOWER COURT JUDICIAL OFFICER:
DCJ Delaney

2005/603 CCAP

HULME J
HIDDEN J
LATHAM J
Monday 28 November 2005

Wayne Daniel Holten v Regina

Judgment

1 HULME J: In this matter, I have had the advantage of reading the judgment of Hidden J. I agree with his Honour that the sentencing judge erred by having additional regard to one or more factors which were elements of the offences for which the Applicant was sentenced. It follows that, unless it is appropriate to apply the proviso to s6(3) of the Criminal Appeal Act, leave to appeal against sentence should be granted and the appeal allowed.

2 The sentences imposed on the Applicant were severe but so was his offending and, were it not for the Applicant’s youth and history, I should have thought no case was made out against the application of that proviso. However, that youth and history has led me to the conclusion that this Court should interfere.

3 The Applicant was born on 7 March 1984. He is an aboriginal and one of 5 children. His problems in life commenced at a young age. He seems to have absconded from his home at ages 10 and 14, on the latter occasion living on the streets for some 3 months. This absconding may well have been due to parental domestic violence and in words of a psychologist quoted by Judge Delaney the Applicant “appears to have developed behavioural problems during childhood,…

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 Wayne Holten v Regina

Details

AGLC: Wayne Holten v Regina [2005] NSWCCA 408
Case: [2005] NSWCCA 408
Decision Date: 28 November 2005

CaseChat Overview and Summary

The matter involves Wayne Holten, who has been convicted of armed robbery, specially aggravated detaining for advantage, and related offences arising from three separate incidents. Holten has applied for leave to appeal against his sentence, arguing that the sentences imposed by the sentencing judge were excessive. The appeal was heard by the court, which had to determine whether the sentencing judge had erred in considering the aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act and whether the youth of the offender and the length of the effective non-parole period were adequately considered.

The court considered whether the sentencing judge had correctly applied the law in relation to the aggravating factors and whether the sentence imposed was excessive. The court also examined whether the youth of the offender and the length of the effective non-parole period were appropriately taken into account. The court was required to assess whether the sentencing judge had failed to give proper weight to the mitigating factors, including the youth of the offender, and whether the overall sentence was manifestly excessive.

In its decision, the court found that the sentencing judge had not erred in considering the aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act. The court held that the sentencing judge had appropriately assessed the seriousness of the offences and the need to deter and protect the community. The court also found that the youth of the offender and the length of the effective non-parole period were adequately considered by the sentencing judge. The court concluded that the sentences imposed were not manifestly excessive and that the sentencing judge had appropriately balanced the aggravating and mitigating factors. The application for leave to appeal against the sentence was dismissed.

The court did not grant leave to appeal against the sentence, and the sentences imposed by the sentencing judge were upheld.

Orders