R v HOLTEN [2007] NSWDC 58

New South Wales District Court

CITATION: R v HOLTEN [2007] NSWDC 58

HEARING DATE(S): 2nd April 2007

JUDGMENT DATE: 20 April 2007

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: The Notice of Appeal signed on behalf of the appellant on 24 August 2006 is to be amended to include the following ground of appeal in addition to the ground of appeal presently appearing, "I am appealing the above conviction because I am not guilty".

CATCHWORDS: Criminal Law - Appeal Against Decision of Local Court - Amendment of Notice of Appeal

Crimes (Appeal and Review) Act LEGISLATION CITED: Justices Act Justices Legislation (Repeal and Amendment) Act.

PARTIES: Crown Shane Eugene Holten

FILE NUMBER(S): 06/12/1265

SOLICITORS: NSW DPP Sydney Regional Aborigianl Corporation Legal Service

JUDGMENT

Introduction

1 Mr Shane Holten was convicted by a magistrate of assaulting a police officer in the execution of his duty. He now seeks to bring an appeal in this Court against the conviction, and also the sentence imposed by the magistrate following that conviction. Such an appeal is commonly referred to as an "All Grounds Appeal".

2 However when the notice of appeal was filed in this Court the ground of appeal was stated as "I am appealing the above sentence because the penalty is too severe". Such an appeal is commonly referred to as a "Severity Appeal". What Mr Holten seeks now is that I make orders to enable him to pursue an All Grounds Appeal despite the fact that this matter commenced in this Court as a Severity Appeal.

3 I will refer to Mr Holten as the appellant.

The Merits

4 At once it should be noted that this is a case where if I can do what the Appellant seeks, then I should clearly do it. The affidavit filed in support of the Appellant's Notice of Motion revealed that he, and his legal representative, always intended that the appeal to this Court would include an appeal against his conviction, but through administrative error the form was filled in in such a way as to indicate only an appeal against severity of the sentence.