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Court of Criminal Appeal 16 September 2009

Holten v R

[2009] NSWCCA 234

Assault & violence
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Holten v R [2009] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 16 September 2009
Judge(s): Tobias JA, Hoeben J, R A Hulme J

Background

The applicant pleaded guilty in the District Court to one count of maliciously inflicting grievous bodily harm with intent, contrary to s 33 of the Crimes Act 1900. The offence arose from an incident at a Port Macquarie bus terminal on 20 March 2008, in which the applicant bit a 16-year-old victim's ear during a physical altercation. The bite caused permanent disfigurement and occurred while the applicant had the victim in a headlock, with police officers present and calling for him to stop.

At sentencing, the judge allowed the applicant a 25 per cent discount for his early guilty plea. The resulting sentence was six years imprisonment, with a non-parole period of three years and six months. A breach of an interim apprehended violence order was also taken into account as a Form 1 matter.

The applicant, who was self-represented on appeal, sought leave to appeal against the sentence. He challenged several of the factual findings made by the sentencing judge and argued that the sentence was excessive.

  • Whether the sentencing judge correctly assessed the objective seriousness of the offence as falling within the middle range
  • Whether the sentencing judge was entitled to take into account the applicant's lengthy criminal history of violence in imposing a more severe sentence
  • Whether any factual discrepancies between the applicant's account and the Crown's account warranted a different outcome

Decision

The Court of Criminal Appeal found no error in the sentencing judge's assessment that the conduct fell within the middle range of objective seriousness. The bite caused permanent disfigurement to a 16-year-old victim who had intervened to check on a woman the applicant appeared to be intimidating. The Court noted that the minor factual differences between the applicant's version of events and the Crown's account could not have materially affected the sentence.

On the criminal history issue, the Court affirmed that the applicant's extensive record, comprising approximately 34 convictions for violence-related offences between 1981 and 2008, was a proper factor to weigh in sentencing. Relying on the principles in Veen v The Queen (No 2) and Regina v McNaughton, the Court confirmed that an antecedent history of violence is relevant where it demonstrates a continuing attitude of disobedience of the law rather than an isolated aberration. In this case, the history bore directly on retribution, deterrence and community protection.

Tobias JA noted that the applicant's criminal conduct appeared substantially connected to alcohol addiction and an inability to control his temper when intoxicated. While acknowledging that the applicant had experienced significant personal hardship, his Honour observed that these circumstances could not justify continued anti-social conduct. The applicant was 45 years old at the time of the appeal, and the Court expressed hope that he would use the remaining period of incarceration and parole supervision to pursue rehabilitation.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge is entitled to treat a lengthy history of violent offending as a legitimate aggravating factor, consistent with the principles in Veen v The Queen (No 2), where that history demonstrates a continuing pattern rather than an isolated departure from law-abiding conduct.
  • In dismissing the appeal, the Court found that minor factual discrepancies between the offender's account and eyewitness evidence did not undermine the sentencing judge's findings, provided the overall factual basis for sentencing remained sound.
  • A conviction under s 33 of the Crimes Act 1900 carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years, with the full 25 per cent discount for an early guilty plea capable of substantially reducing the sentence below that benchmark.
  • The Court's endorsement of rehabilitation as a sentencing consideration did not alter the sentence itself, but Tobias JA made a non-binding recommendation to correctional authorities to provide the applicant with access to alcohol and anger management programs, both during incarceration and on parole.
  • Sufficient basis existed to confirm the six-year sentence with a three-year-and-six-month non-parole period as appropriate for this offence, the offender's circumstances, and the relevant purposes of sentencing including personal deterrence and community protection.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (maliciously inflicting grievous bodily harm with intent)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Regina v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566