HOLOHAN v R [2012] NSWCCA 105

HOLOHAN v R [2012] NSWCCA 105

The sentence for count 2, assault with intent to rob, was manifestly excessive because the objective circumstances of that offence, even allowing for commission while on parole and the applicant's criminal record, did not justify the sentencing judge's notional starting point. The sentences for count 1 and count 3 were within range: the break, enter and steal sentence was open given the offence circumstances, parole status and record, and the aggravated robbery was open to be characterised as a worst category case because of the intended violent robbery, unprovoked and ferocious attack with a brick or rock against a vulnerable lone woman, continuation of the attack while she was on the...

Jurisdiction
Australia
Judgment Date
29 May 2012
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal allowed; sentences quashed and the applicant re-sentenced to an aggregate sentence of 19 years and 6 months with a non-parole period of 14 years and 3 months.
Legal Topics
['manifest Excess' 'worst Category Offending' 'aggravated Robbery While Armed Causing Grievous Bodily Harm' 'assault With Intent to Rob' 'break, Enter and Steal' 'totality' 'prior Criminal Record' 'parole']
['criminal Law' 'sentencing'] ['manifest Excess' 'worst Category Offending' 'aggravated Robbery While Armed Causing Grievous Bodily Harm' 'assault With Intent to Rob' 'break, Enter and Steal' 'totality' 'prior Criminal Record' 'parole']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentence imposed for break, enter and steal was manifestly excessive.' 'Whether the sentence imposed for assault with intent to rob was manifestly excessive.' 'Whether the sentencing judge erred in finding the aggravated robbery while armed causing grievous bodily harm was in the worst case category.' 'Whether the sentence imposed for the aggravated robbery was manifestly excessive.' 'Whether the sentencing judge erred in the assessment of totality resulting in an overall sentence that was manifestly excessive.']

Ratio Decidendi

The sentence for count 2, assault with intent to rob, was manifestly excessive because the objective circumstances of that offence, even allowing for commission while on parole and the applicant's criminal record, did not justify the sentencing judge's notional starting point. The sentences for count 1 and count 3 were within range: the break, enter and steal sentence was open given the offence circumstances, parole status and record, and the aggravated robbery was open to be characterised as a worst category case because of the intended violent robbery, unprovoked and ferocious attack with a brick or rock against a vulnerable lone woman, continuation of the attack while she was on the...

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed and the applicant re-sentenced to an aggregate sentence of 19 years and 6 months with a non-parole period of 14 years and 3 months.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' 'The sentences imposed by Charteris DCJ on 16 December 2010 are quashed.' 'Count 1: Imprisonment with a non-parole period of 2 years and 6 months to commence 14 August 2009 and expire 13 February 2012 with a balance of term of 1 year to expire 13 February...