Holman v Regina [2006] NSWCCA 227

New South Wales Court of Criminal Appeal

CITATION: Holman v Regina [2006] NSWCCA 227

HEARING DATE(S): 26/07/2006

JUDGMENT DATE: 28 July 2006

JUDGMENT OF: McClellan CJ at CL at 1; Kirby J at 2; Hoeben J at 6

DECISION: Leave to appeal granted - appeal dismissed

CATCHWORDS: SENTENCE APPEAL - submissions not put in accordance with instructions - rehabilitation - use of previous criminal record.

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Pearce v R (1998) 194 CLR 610 CASES CITED: R v Fordham (1997) 98 A Crim R 359 R v Webster [2005] NSWCCA 110 Veen v R (No 2) (1988) 164 CLR 465

PARTIES: Michael Patrick Holman - Plaintiff Crown - Respondent

FILE NUMBER(S): CCA 2006/786

COUNSEL: Applicant in person DML Woodburne - Crown

SOLICITORS: Applicant in person S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0245

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

LOWER COURT DATE OF DECISION: 01/06/2005

IN THE COURT OF CRIMINAL APPEAL 2006/786

McCLELLAN CJ at CL KIRBY J HOEBEN J

Friday, 28 July 2006 Michael Patrick HOLMAN v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hoeben J. 2 KIRBY J: On this appeal the applicant represented himself. He presented as both intelligent and articulate. Fundamentally, his complaint was that the sentence had not been backdated to the date of his arrest on 17 August 2004. However, for the reasons explained by Hoeben J, there was no error in the selection of the commencement date of the sentence (1 June 2005), having regard to the revocation of parole by the Parole Board on 5 August 2004 and the requirement that the applicant serve the balance of his term (which expired on 24 October 2005). 3 Nonetheless, it must be said that the applicant spoke convincingly and movingly concerning his resolve to break the destructive cycle of his life to this point. He said that, for the first time in a long while, he was drug free. He believed that he had grown up. He recognised that he was still a young man, and could yet do something with his life. He also recognised that he had been given many opportunities in the past, which he had squandered. He was anxious that this should not occur in the future. 4 Whilst it was not possible to alter the sentence he must serve, there being no error, his resolve, which appeared sincere, augers well for his early reclassification and ultimate rehabilitation once released to parole. 5 I agree with the orders suggested by Hoeben J and with his reasons. 6 HOEBEN J: Offences and sentence On 1 June 2005 the applicant was sentenced by Delaney DCJ as follows: