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Court of Criminal Appeal 28 November 2005

Wayne Holten v Regina

[2005] NSWCCA 408

Theft & propertyPublic order & justice offences
CRIMINAL LAW WHETHER SENTENCES EXCESSIVE YOUTH OF OFFENDER LENGTH OF EFFECTIVE NON PAROLE PERIOD

Citation: Wayne Holten v Regina [2005] NSWCCA 408
Court: New South Wales Court of Criminal Appeal
Date: 28 November 2005
Judge(s): Hulme J, Hidden J, Latham J

Background

The applicant, a young Aboriginal man born in March 1984, sought leave to appeal against sentences imposed in the District Court following convictions for armed robbery, specially aggravated detaining for advantage (kidnapping), and related offences arising from three separate incidents in June and July 2002. He was arrested on 16 July 2002 and had been in custody since that date.

The applicant had a significant prior criminal history, including earlier convictions for armed robbery and robbery in company, for which he had been sentenced in 2000 and 2003. The offences under appeal were committed while he was on parole and on bail, and the District Court judge (DCJ Delaney) imposed sentences that, in combination with earlier sentences, extended the applicant's effective non-parole period substantially.

The applicant's background included a difficult childhood marked by domestic violence, homelessness from a young age, and escalating drug and alcohol dependency from early adolescence. A psychologist's report before the sentencing judge attributed his offending in part to entrenched environmental disadvantage and limited impulse control developed during childhood.

  • Whether the sentencing judge erred by treating factors that were already elements of the offences as additional aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act
  • Whether the sentences were excessive in light of the applicant's youth, Aboriginal background, and personal history
  • Whether the effective non-parole period, which would have kept the applicant in continuous custody from age 16 to approximately 28, was manifestly excessive

Decision

The Court of Criminal Appeal, by majority, granted leave to appeal and allowed the appeal. Hulme J and Hidden J (with Latham J agreeing with Hidden J) found that the sentencing judge had erred by treating one or more factors that constituted elements of the offences as separate aggravating circumstances under section 21A. This amounted to an error of principle that opened the sentences to review.

All three judges acknowledged the gravity of the offending. The crimes were serious, committed while the applicant was on parole and bail, and reflected a failure to respond to earlier custodial penalties. Those matters strongly weighed against intervention and placed meaningful limits on how far any reduction in sentence could go.

However, the majority was persuaded that the applicant's youth and disadvantaged background, including his upbringing in an environment of domestic violence, homelessness, and substance dependency, warranted some degree of leniency consistent with principles drawn from cases such as GDP and Fernando. The Court noted that the effective non-parole period under the original sentences would have kept the applicant in continuous custody between the ages of 18 and 28, a period described as not only lengthy but falling at a particularly significant stage of a young person's development.

The Court reduced the sentence for armed robbery to a fixed term of five-and-a-half years and the sentence for specially aggravated kidnapping to nine years with a non-parole period of five-and-a-half years. The remaining sentences were confirmed. The overall result was a meaningful but deliberately limited reduction, reflecting both the seriousness of the criminal conduct and the applicant's personal circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence for armed robbery (Hennessy) reduced to a fixed term of five-and-a-half years, commencing 9 November 2005
  • Sentence for specially aggravated kidnapping reduced to nine years with a non-parole period of five-and-a-half years, commencing 9 November 2005
  • All other sentences confirmed
  • Applicant eligible for release on parole on 8 May 2011

Key Takeaways

  • A sentencing judge who treats a factor already constituting an element of the offence as an additional aggravating circumstance under section 21A of the Crimes (Sentencing Procedure) Act commits a legal error sufficient to attract appellate intervention.
  • Under principles established in cases such as GDP and Fernando, an offender's Aboriginal background, childhood disadvantage, and the environmental origins of offending conduct are relevant to the weight given to subjective factors, though those principles do not operate without limit.
  • Drug addiction does not itself constitute a mitigating factor in sentencing and, to the extent that addiction increases the risk of re-offending, it may point toward a longer period of custody rather than a shorter one.
  • Where earlier offending and a failure to comply with parole and bail conditions are present, those matters seriously constrain the extent of any sentence reduction available on appeal, even where the offender is young and personally disadvantaged.
  • The practical effect of accumulated sentences on a young offender, particularly where the resulting non-parole period spans a formative period of adult life, is a legitimate consideration in assessing whether the overall sentencing outcome is manifestly excessive.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW), section 21A
- Criminal Appeal Act (NSW), section 6(3)

Cases
- R v Johnson [2004] NSWCCA 76
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Wickham [2004] NSWCCA 193
- R v Henry (1990) 46 NSWLR 346
- GDP (1991) 53 A Crim R 112
- Fernando (1992) 76 A Crim R 58
- Tran [1999] NSWCCA 109
- Nichols (1991) 57 A Crim R 396
- Hearne (2001) 124 A Crim R 451