Citation: Holman v Regina [2006] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 28 July 2006
Judge(s): McClellan CJ at CL, Kirby J, Hoeben J
Background
The appellant, a man in his early thirties with an extensive criminal history dating to 1991, was sentenced in the District Court in June 2005 for a series of residential break-and-enter offences committed in the Chatswood and North Rocks areas in July and August 2004. The victims included several elderly residents, one aged 86. The offences were committed within weeks of the appellant's release on parole and while he was again on bail.
Upon his arrest in August 2004, his parole was revoked and he began serving the balance of his prior sentence. The District Court structured the new sentences with a degree of concurrency, resulting in an effective non-parole period of three years and six months with a balance of term of two years.
The appellant represented himself on appeal, arguing that the sentences were excessive and that they had not been correctly calculated or structured.
Legal Issues
- Whether defence counsel at sentencing had failed to put submissions in accordance with the appellant's instructions, constituting an error on the part of the sentencing court
- Whether the sentencing judge incorrectly used the appellant's prior criminal record as an aggravating factor rather than applying the principle from Veen v R (No 2), which distinguishes between the moral culpability for the offence and the broader moral culpability of the offender
- Whether the commencement dates for the sentences were correctly calculated, having regard to the revocation of parole and the period the appellant was required to serve
Decision
On the first ground, the Court found that even accepting that counsel had not put all submissions the appellant wished to make, the omitted material did not establish any error in the sentencing outcome. The appellant's rehabilitation prospects and personal circumstances, including his participation in a methadone program and the support of his family, were before the sentencing judge. Evidence from the Salvation Army about a proposed placement had also been tendered. The failure to put additional submissions on these matters did not affect the result.
On the second ground, the Court examined how the sentencing judge had treated the prior criminal record and found no error. Hoeben J noted that the distinction in Veen (No 2) between using prior convictions to assess an offender's moral culpability and treating them as a simple aggravating factor is not an easy concept to grasp, and the appellant had understandably misconstrued what the judge was doing. In fact, the sentencing judge had carefully applied the correct principle. The judge had also expressly addressed the appellant's circumstances in custody, including that he would serve most of his sentence in protection and had previously been assaulted in prison.
On the third ground, the Court found no error in the commencement dates. The sentences for the Chatswood offences commenced on 1 June 2005 because the appellant had been required to serve the unexpired balance of his parole from August 2004, which did not expire until October 2005. Some accumulation of sentences was appropriate given the number of offences, the different victims involved, and the fact that the offences were committed while the appellant was on conditional liberty.
Kirby J, while concurring in dismissal, noted that the appellant presented as intelligent and articulate and spoke convincingly about his desire to break a destructive cycle, his being drug-free, and his recognition that he had previously squandered opportunities. His Honour expressed hope that this resolve would assist the appellant's prospects for early reclassification and rehabilitation upon eventual release to parole.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an omission by trial counsel to put certain submissions does not constitute sentencing error unless the omitted material would have made a difference to the outcome.
- Under the principle in Veen v R (No 2), a sentencing court may consider an offender's prior criminal record in assessing the offender's overall moral culpability without treating that record as an aggravating factor going to the seriousness of the individual offence. The Court confirmed the sentencing judge here had applied this distinction correctly.
- Where parole has been revoked and an offender is required to serve the balance of a prior sentence, the commencement date of new sentences must account for that obligation. The sentences here properly commenced after the parole balance expired.
- Some accumulation of sentences was found to be not only appropriate but necessary where offences involved multiple victims and were committed while the offender was on conditional liberty. A fully concurrent approach in those circumstances would have constituted error.
- Expressions of genuine rehabilitation by an unrepresented appellant, while insufficient to alter a sentence affected by no legal error, were noted by the Court as potentially relevant to future reclassification decisions within the correctional system.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 115
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Inclosed Lands Protection Act (NSW), s 4(1)
Cases:
- Veen v R (No 2) (1988) 164 CLR 465
- Pearce v R (1998) 194 CLR 610
- R v Fordham (1997) 98 A Crim R 359
- R v Webster [2005] NSWCCA 110