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Court of Criminal Appeal 19 February 2021

Holt v R (Cth)

[2021] NSWCCA 14

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE FAMILY LAW ACT OFFENCE DEALING WITH PROCEEDS OF CRIME USE OF S 16BA SCHEDULES PROPRIETY OF “ROLL

Citation: Holt v R (Cth) [2021] NSWCCA 14
Court: Court of Criminal Appeal, New South Wales
Date: 19 February 2021
Judge(s): Johnson J, R A Hulme J, Wilson J

Background

The appellant, Timothy Michael Holt, administered websites through which he published large volumes of material identifying parties and witnesses to Family Court proceedings. The publications arose from a bitter parenting dispute in which a mother had abducted her twin daughters and evaded authorities for four years. The appellant was paid $28,500, which he knew to be proceeds of crime, to set up websites and social media accounts that disseminated court documents, audiovisual recordings of police interviews with the children, and material that repeatedly and graphically accused the father of sexual abuse.

In total, 64 of the appellant's publications both recounted Family Court proceedings and identified parties or witnesses to those proceedings. He was sentenced in the District Court at Gosford on 12 March 2020. He pleaded guilty to an offence under the Family Law Act 1975 (Cth) of disseminating identifying information (count 1, maximum one year imprisonment) and to dealing with the proceeds of crime under the Criminal Code 1995 (Cth) (count 2, maximum 10 years imprisonment). A further offence of using a carriage service to offend was taken into account under a section 16BA schedule when sentence was imposed on count 1.

Judge Bright imposed 18 months' imprisonment on count 2 and a partially cumulative sentence of one year on count 1, with an overall release date of 11 July 2021 on a recognisance to be of good behaviour for two years. The appellant sought leave to appeal against sentence on three grounds.

  • Whether the sentencing judge erred by imposing the statutory maximum penalty for count 1 after already affording a 25% discount for the guilty plea, effectively negating the discount
  • Whether the sentence for count 1 was improperly made very substantially cumulative on count 2
  • Whether the sentencing judge erred in failing to give greater weight to the appellant's mental illness as a mitigating factor

Decision

Ground 1: Maximum penalty and plea discount. The Court of Criminal Appeal acknowledged a real tension in the sentencing approach. Where an offence is so grave that the appropriate sentence without any discount would already equal or exceed the statutory maximum, a discount for a guilty plea cannot meaningfully be applied. The Court observed that the sentencing judge appeared to have calculated the maximum penalty and then applied a 25% reduction, yet still arrived at the maximum. This was identified as an error in methodology. However, the Court also considered whether the schedule offence taken into account under section 16BA created a further complication: that offence (using a carriage service to offend, maximum 3 years) was significantly more serious than the principal Family Law Act offence (maximum 1 year), which is a problematic use of the schedule mechanism.

Ground 2: Accumulation. The Court found the degree of accumulation was difficult to justify given the close factual connection between the two offences. The publications that constituted count 1 were made using the same carriage services, and the payment received for making them was the subject of count 2. The offending arose from substantially overlapping conduct, which ordinarily calls for concurrency or only modest accumulation.

Ground 3: Mental illness. The Court confirmed that mental illness is a relevant mitigating factor but does not automatically reduce a sentence. In this case, the extended period of offending, the number of discrete incidents, the severity of harm to named individuals and to public confidence in the Family Court, and the strong need for specific and general deterrence meant that the appellant's mental illness could not carry great ameliorating weight. The Court also noted the appellant was receiving appropriate specialist treatment in custody.

Overall result. Despite identifying methodological errors in the sentencing approach, including the problematic use of the section 16BA schedule and the difficulty with applying a discount while also reaching the maximum, the Court was not satisfied that a lesser sentence was warranted in all the circumstances. The Court observed that an aggregate sentence, or declining to take the schedule offence into account, or declining to apply any discount given the gravity of the offence, would each have been preferable approaches at first instance. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A section 16BA schedule offence should not be more serious than the principal offence to which it is attached; where a schedule offence carries a higher maximum penalty than the principal offence, this signals a problematic use of the mechanism and may indicate the offences should be charged separately.
  • Where the gravity of an offence is such that the appropriate sentence would equal the statutory maximum even before any reduction, a percentage discount for a guilty plea cannot be meaningfully applied and the sentencing judge should instead decline to apply a discount or acknowledge the constraint openly.
  • The Court of Criminal Appeal confirmed that mental illness as a mitigating factor does not operate automatically to reduce sentence; its weight depends on the totality of objective and subjective circumstances, including the nature, extent, and duration of the offending.
  • In federal sentencing, an aggregate sentence under the relevant provisions is a legitimate and sometimes preferable alternative to imposing individual sentences with partial accumulation, particularly where offences arise from closely connected conduct.
  • No error warrants intervention on appeal unless the court is affirmatively of the opinion that a lesser sentence is warranted; identifying flaws in methodology at first instance is not, by itself, sufficient if the ultimate sentence falls within a range appropriate to all the circumstances.

Legislation and Cases Referenced

Legislation
- Family Law Act 1975 (Cth), ss 121(1)(a), 121(5)
- Criminal Code 1995 (Cth), ss 400.6(1), 474.17
- Crimes Act 1914 (Cth), s 16BA
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A

Cases
- Abbas & Ors v R [2013] NSWCCA 115
- Aslan v R [2014] NSWCCA 114
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Baden v R [2020] NSWCCA 23
- Bae v R [2020] NSWCCA 35
- Cahyadi v R [2007] NSWCCA 1
- CP v R [2009] NSWCCA 291
- Croxon v R [2017] NSWCCA 213
- DG v R [2017] NSWCCA 139
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- DL v The Queen (2018) 265 CLR 215
- DPP v Beattie (2017) 270 A Crim R 556
- El-Youssef v R [2010] NSWCCA 4
- Huang v R (2018) 332 FLR 158
- Kaurasi v R (Cth) [2020] NSWCCA 253
- Kentwell v The Queen (2014) 252 CLR 601
- Milat v R, Klein v R [2014] NSWCCA 29
- R v Borkowski [2009] NSWCCA 102
- R v Eedens [2009] NSWCCA 254
- R v Lamella [2014] NSWCCA 122