HOLOHAN v R [2012] NSWCCA 105

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HOLOHAN v R [2012] NSWCCA 105 Hearing dates: 17 May 2012 Decision date: 29 May 2012 Before: ALLSOP P at [1] HOEBEN JA at [ 2] BEECH-JONES J at [84 ] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentences imposed by his Honour on 16 December 2010 are quashed and in lieu thereof, the applicant is sentenced as follows: 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 2013. Count 2: Imprisonment with a non-parole period of 2 years to commence 14 May 2011 and expire 13 May 2013 with a balance of term of 8 months to expire 13 January 2014. Count 3: Imprisonment with a non-parole period of 11 years and 6 months to commence 14 May 2012 and to expire 13 November 2023 with a balance of term of 5 years and 3 months to expire 13 February 2029. The aggregate sentence is 19 years and 6 months with a non-parole period of 14 years and 3 months. Catchwords: CRIMINAL LAW - sentence appeal - three offences - most serious robbery inflicting grievous bodily harm when armed with an offensive instrument contrary to s 98 Crimes Act 1900 - female victim struck repeatedly on head with rock and robbed - whether offence properly characterised as "worst case" - relevant principles - whether the sentences imposed for all three offences were manifestly excessive - whether principle of totality observed. Legislation Cited: Crimes Act 1900 Cases Cited: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [303] - [305] Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [53] - [54] Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 at [27] Pearce v R [1998] HCA 57; 194 CLR 610 R v Amohanga; R v Rai [2005] NSW CCA 249; 155 A Crim R 202 R v El-Andouri [2004] NSWCCA 178 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 Regina v Twala (NSWCCA, unreported, 4 November 1994) R v Wilson [2005] NSWCCA 219 at [37] Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Category: Principal judgment Parties: Roderick Holohan - Applicant Regina - Crown Representation: Counsel: Mr B Walker SC/R Mathur- Applicant Ms J Girdham - Crown Solicitors: Aboriginal Legal Service - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown File Number(s): 2009/46396 2009/64312 Decision under appeal Date of Decision: 2010-12-16 00:00:00 Before: Charteris DCJ File Number(s): 2009/46396