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Court of Criminal Appeal 28 February 2011

Holloway v Regina

[2011] NSWCCA 23

Assault & violenceDrugsPublic order & justice offences
APPEAL OUT OF TIME NO FINDING IN FAVOUR OF REHABILITATION RACIALLY MOTIVATED ASSAULTS STRONG DETERRENCE GENERAL AND SPECIFIC DETERRENCE CONCURRENT

Citation: Holloway v Regina [2011] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 28 February 2011
Judge(s): James J, Hall J, Price J

Background

The appellant pleaded guilty in the Penrith District Court on 4 December 2008 to three offences: commercial cannabis cultivation by enhanced indoor means (23 April 2007), malicious wounding in company (26 August 2007), and assault occasioning actual bodily harm in company (26 August 2007). He was sentenced in August 2009 to an aggregate non-parole period of three years, with a total term of five years and three months.

The violence offences arose from a racially motivated attack at Marayong Railway Station. The appellant and a co-offender followed two men from a nearby hotel, made racist remarks, and attacked them. During the assault, the appellant struck one victim in the face with a schooner glass, causing a serious laceration and a broken tooth. Critically, both violence offences were committed while the appellant was on conditional bail for the drug cultivation charge.

The appellant filed his notice of appeal out of time in August 2010. The Crown did not oppose the grant of leave to proceed out of time, and the Court granted that leave.

  • Whether leave to appeal out of time should be granted
  • Whether the 15% guilty plea discount was adequate, given the applicant did not plead guilty at the earliest opportunity
  • Whether the sentencing judge erred by failing to make a positive finding in relation to rehabilitation
  • Whether the violence offences should have been treated as separate matters attracting cumulative sentences, or as part of one course of conduct attracting concurrent sentences
  • Whether the drug offences and violence offences were correctly treated as separate courses of conduct
  • Whether the new provisions of section 35 of the Crimes Act 1900 created new offences (relevant to the applicable standard non-parole period)
  • Whether any error in setting the non-parole period was material
  • Whether the sentences imposed were manifestly excessive

Decision

The Court dismissed all grounds of appeal. On the guilty plea discount, the sentencing judge's decision to allow only 15% (rather than the maximum 25%) was upheld. The appellant had not entered his plea at the earliest available opportunity, and the reduced discount was appropriate given the objective seriousness of the offences.

On rehabilitation, the Court found no error in the sentencing judge's approach. The absence of a positive rehabilitation finding was open on the evidence. The judge had, in any event, structured a longer than usual parole period to support the prospect of rehabilitation, which reflected a balanced and orthodox sentencing approach.

Regarding the structure of the sentences, the Court confirmed that the two violence offences formed part of one continuous course of conduct and were correctly sentenced concurrently. The drug offence, however, arose from a wholly separate factual context and was correctly treated as a distinct matter. On the question of whether the amended section 35 of the Crimes Act 1900 created new offences (affecting which standard non-parole period applied), the Court agreed it did, but found that any error in the non-parole period calculation was not material to the outcome.

The Court rejected the submission that the sentences were manifestly excessive. The violence offences were unprovoked, racially motivated, vicious, and committed in a public place while the appellant was on conditional bail. The bail aggravation alone justified an increase beyond what would otherwise have been appropriate. Beyond the guilty plea, there was little to mitigate any of the three offences.

Orders Made

  • Leave to proceed on the notice of application for leave to appeal filed out of time on 19 August 2010 was granted
  • Leave to appeal was granted
  • The appeal was dismissed

Key Takeaways

  • Committing offences while on conditional bail is a serious aggravating factor that justifies a sentence beyond what would otherwise be appropriate, consistent with the Court of Criminal Appeal's approach in Regina v Harmouche (2005) 158 A Crim R 357
  • A guilty plea discount below the maximum 25% is appropriate where the offender did not enter the plea at the earliest reasonable opportunity; 15% was upheld as reasonable for serious offending
  • Where two violent offences arise from a single continuous incident, concurrent rather than cumulative sentences are appropriate; drug offending arising from an entirely separate factual context warrants separate, distinct sentencing
  • The Court of Criminal Appeal confirmed that the amendments to section 35 of the Crimes Act 1900 introduced new offences, with implications for which standard non-parole period applies, though the error on that point was not material on the facts
  • In dismissing the manifest excess grounds, the Court emphasised that objective seriousness and associated culpability are the determinative considerations, not sentencing statistics alone

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35, 59
- Crimes Amendment Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)

Cases
- Regina v Borkowski [2009] NSWCCA 102
- Regina v Harmouche (2005) 158 A Crim R 357