R v Hollaway

Court of Criminal Appeal (NSW)|2016-08-08|Before: Payne JA, Hulme J, Adamson J

Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2015/35383 Decision under appeal Court or tribunal: District Court Date of Decision: 27 May 2016 Before: McClintock SC DCJ File Number(s): 2015/35383

Judgment

PAYNE JA: I agree with R A Hulme J.
R A HULME J: The Crown has appealed against a sentence imposed in the District Court by McClintock SC DCJ on 27 May 2016 upon Ms Karyna Hollaway ("the respondent").
The respondent was found guilty by a jury of an offence of attempting to intentionally choke Ms Kay Skene so as to render her incapable of resistance. This is an offence which is contrary to s 37(1) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 10 years. I will refer to this as "the primary offence".
The respondent was also sentenced following pleas of guilty for offences of intentionally damaging property and breaching an apprehended domestic violence order (ADVO) (the latter appearing on a s 166 Certificate). These offences are contrary to s 195 of the Crimes Act and s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalties are imprisonment for 5 years and for 2 years and/or a fine of 50 penalty units respectively.

Facts

There was some contest about the factual basis upon which the judge should sentence for the primary offence. He had the advantage of having heard the evidence of witnesses during the course of the trial, particularly that of the victim and the respondent. Counsel for the respondent took no issue with the following brief summary provided in the Crown's written submissions. "At the relevant time the respondent and the victim were living together in a domestic relationship. They lived at the victim's unit in Malabar. The relationship was torrid and dysfunctional and marked by episodes of violence. On 17 September 2014 a Final Apprehended Domestic Violence Order was made for the protection of the victim. This order was to remain in force for 12 months. That order prohibited the respondent from going within 100 metres of the premises at which the victim resided. [Breach of this condition constituted the breach of ADVO offence.] On the evening of 4 February 2015, following a day of drinking with the victim, the respondent attended the victim's unit and broke a window with a pot plant. [This constituted the offence of intentionally damaging property.] She attempted to gain access to the unit by repeatedly banging on the front door and shouting. The victim opened the front door and was attacked by the respondent. Police who attended the unit saw the respondent sitting on the victim, who was face down. The respondent had her hands around the victim's throat and was pulling her neck backwards. The victim was screaming and attempting to crawl to the door. Police observed that her resistance was fading. His Honour determined, consistently with the jury verdict, that the respondent was not acting in self-defence at the point at which she had her hands around the victim's neck and that her conduct at that point was not part of a legitimate attempt to defend herself. His Honour observed that the evidence was unclear and did not allow him precisely to determine how the fight started, however it was apparent that the respondent was "seriously disinhibited by alcohol" and "agitated and upset" at the time she attempted to gain access to the victim's unit. His Honour concluded that the most likely explanation for the fight was that it arose out of some dispute earlier in the day in circumstances where both parties were very significantly affected by alcohol. McClintock SC DCJ noted that as a result of the fight, the respondent lost two teeth, a matter which his Honour took into account as extra-curial punishment."

Personal circumstances of the respondent

The respondent was born in 1989 and so she was aged 26 at the time of the offences. Her criminal history includes the following matters: Offence Date of offence Date of outcome Outcome Contravene apprehended violence order 4.11.02 (aged 13) 2.12.02 Dismissed with caution Malicious wounding; 7.9.06 (aged 17) 7.11.08 Supervised probation for 12 months contravene apprehended domestic violence order (After having failed to appear on 13.12.07) Assault 24.4.07 (aged 18) 3.10.07 Supervised good behaviour bond for 12 months 7.11.08 Further 12 month bond (appealed) (Call-up for breach of bond) 27.2.13 1 month 5 days imprisonment (After having failed to appear for appeal) Burglary; theft; retention of stolen goods; deal with property suspected as proceeds of crime Unknown 5.1.09 8 month supervised community based order Contravene apprehended domestic violence order 13.3.09 (aged 20) 17.5.11 Supervised good behaviour bond for 12 months (After having failed to appear on 26.8.09 and 13.4.11) Aggravated assault 27.8.10 (aged 21) 14.9.10 Fine Breach restraining order 30.5.10 (aged 21) 31.5.10 Fine Destroy/damage property 7.3.11 (aged 22) 13.4.11 Fine Manslaughter 21.3.11 - 11.6.11 (aged 22) 22.3.13 5 years 4 months imprisonment with non-parole period 3 years dating from 10.6.11 Destroy/damage property 15-16.8.14 17.9.14 6 weeks imprisonment from 16.8.14 (aged 25) Breach of parole 4.9.14 To serve balance of parole - ultimately released on 26.1.15 Breach of parole 12.2.15 To serve balance of parole 4.2.15 - 9.10.16

The most significant matter in the respondent's history is the manslaughter offence for which she was sentenced by Price J on 22 March 2013: R v Hollaway [2013] NSWSC 218. The respondent and Ms Skene had been living at the deceased's home for a brief time. The respondent continued living there after Ms Skene was taken into custody on outstanding warrants. On an occasion in April 2011 after the respondent and the deceased had spent some time consuming alcohol and cannabis, the deceased approached the respondent from behind and grabbed her around the neck and said something suggesting that he was going to rape her. She grabbed a knife and stabbed him a number of times.
The Crown accepted a plea of guilty to manslaughter on the basis of substantial impairment by abnormality of mind (s 23A of the Crimes Act). This was supported by the reports of three forensic psychiatrists. Dr Stephen Allnutt considered that at the time of the offence the respondent was likely experiencing symptoms of psychosis. He considered that a differential diagnosis would include schizophrenia, schizoaffective disorder and a drug induced psychosis. Dr Jeremy O'Dea's diagnoses were that of substance use disorder - currently in remission; drug induced psychosis - currently in remission; and personality disorder. Dr Olav Nielssen made the diagnoses of substance dependence and abuse disorder; drug induced psychotic illness (in remission); and probable personality disorder.
Price J was satisfied that at the time of the stabbing the respondent's capacity to understand events and to judge whether her actions were right or wrong, and to control herself, was substantially impaired by an abnormality of mind arising from an underlying condition of a drug induced psychosis on the background of unstable personality. His Honour was also satisfied that the respondent was acting in self-defence (but that her response was not a reasonable one) and that she had been provoked.
Price J also made the following observations and findings concerning the respondent's background: "[25] Without detailing all of the histories in the psychiatric reports, it is evident as [defence counsel] points out in written submissions, that the offender's background is one of marked childhood and developmental adversity. I accept that she was raised in an atmosphere of domestic violence and subjected to serious emotional neglect, as well as physical and sexual abuse. [26] It appears that the offender was sexually abused by her mother's partner when she was 11 years old. She described further sexual abuse by an elder brother and a neighbour. At the age of 13, she was made a ward of the State. The offender reported episodes to Dr Nielssen of deliberate self-harm from the age of 12 or 13 mainly by cutting her left forearm and that she developed symptoms of an eating disorder. She was admitted to Bloomfield Psychiatric Hospital, Orange, in December 2004 with a diagnosis of "Stress Reaction Disorder", having cut her wrist following a miscarriage. The offender was then 15 years old. She presented to Dubbo Base Hospital in April 2005 with thoughts of self-harm and depression. [27] The offender began drinking alcohol and smoking cannabis from her early teenage years. She reported the onset of abuse of methamphetamine at around the age of 18, which has from that time been her main drug of abuse. She was enrolled in the MERIT program and admitted to the Lyndon Community Rehabilitation facility to stop her drug abuse on two occasions, but relapsed soon afterwards. [28] Having left school during year eight, the offender has had limited education. She told Dr Nielssen that she attended numerous schools, but did not complete a year at any one school. However, the offender reported that she was literate and attempted a tourism course at TAFE. She had been employed as a ride operator at country shows. [29] I find that the offender's dysfunctional background was on the balance of probabilities causative of her descent into alcohol and drug abuse at an early age."
Price J also referred to the opinions of the three psychiatrists on matters relevant to the respondent's future prospects of rehabilitation and risk of re-offending: "[30] Dr Allnutt expressed the opinion (at p 5) that when he saw the offender, "she was manifesting residual symptoms of an almost fully resolved psychosis" and was developing insight into her prior experience of auditory hallucinations. He considered that there remained a risk that she could experience a relapse or a risk of deterioration in her mental state. [31] Dr O'Dea reported (at p 10) that the offender "with apparent prolonged abstinence from substance abuse in custody in the context of psychiatric treatment with antipsychotic medication...has reportedly been free of psychotic symptoms for approximately 1 month and presented at interview without evident psychosis." He opined that the offender must remain "abstinent from alcohol and other drug use in the community in the long term in order to manage and minimise her risk of engaging in further offending behaviour in the community in the long term, and to manage and minimise the risk of her suffering further psychiatric symptomatology." [32] In his report dated 5 June 2012 (at p 6), Dr Nielssen made reference to the "recent return of symptoms suggests that she may in time develop a chronic form of mental illness." In his later report, he was of the opinion that the offender might have an underlying schizophrenic illness for which she would need long term treatment with antipsychotic medication. Dr Nielssen considered that the offender has a high risk of developing symptoms of psychosis if she was to resume using cannabis or amphetamine. He recommended a long period of supervision of her mental state and abstinence from illicit drugs after release."
The judgment of Price J was before McClintock SC DCJ and he referred to it in the course of his remarks on sentence. Of course, and as the Crown pointed out, the opinions of the psychiatrists were by this time somewhat dated, they having reported in 2011 and 2012.
The respondent was released on parole on 9 June 2014 and she moved into Ms Skene's apartment at Malabar. At that stage they had been in an intimate relationship for some eight years. On 15-16 August 2014 the respondent damaged property belonging to Ms Skene, the property generally comprising electrical items such as a television and a computer. When police attended the premises they found the various items smashed on the lounge room floor. The respondent appeared to be well-affected by alcohol.
The respondent received a six week sentence of imprisonment for this offence and her parole was revoked. The revocation was rescinded, effective 19 December 2014 but only insofar as to permit the respondent to live at a residential diversionary program in Cessnock for female offenders with mental health and drug and alcohol abuse issues. She was released on parole into the community on 26 January 2015. The present offences occurred just over a week later.
The respondent's parole was again revoked. She was required to serve the balance of parole of 1 year 8 months and 6 days from 4 February 2015 until 9 October 2016. This presented the sentencing judge with the question of whether, and if so by how much, to backdate the respondent's sentence. The Crown submitted that he should commence the sentence from 23 March 2016, the date of the sentence hearing.
The question of when to commence the sentence was governed by s 47 of the Crimes (Sentencing Procedure) Act: 47 Commencement of sentence (1) A sentence of imprisonment commences: (a) subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed, or (b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence. (2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. (4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. (6) A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.
It can be seen that the options available were to commence the sentence on the day of imposition or on some prior date. There was no power to post-date the sentence. The judge was required to take into account the time which the respondent had been held in custody in relation to the offence. (Section 24(a) requires this as well.)
Submissions for the Crown referred his Honour to the principal authority dealing with the question of accumulation and concurrency of sentence when an offender is required to serve a period of balance of parole for a prior matter: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145. His Honour said: "The revocation so far as the material suggests was entirely referrable to this offence, therefore, issues of totality and accumulation arise. I intend to backdate this sentence but not to the full extent of the parole period to allow some independent punishment for the breach but I need to keep in mind the proportionality of sentencing overall and totality and I also will find special circumstances and I need to keep that proportion in mind as well."

Some findings on sentence

The learned judge (correctly with respect) regarded it as an aggravating factor that the offence was committed whilst the respondent was on parole.
He considered that her criminal history denied her a degree of leniency but it was not an extensive record.
As to the respondent's background, including the history of mental illness and substance abuse he said: "The offender has undoubtedly had a very significantly deprived and traumatic background which has no doubt predisposed her or, it has to be said, has a degree of criminogenesis to it. Again, like Price J I do not propose to refer to the detailed histories in the social work report or in the psychiatric report. In summary, the offender grew up in a torrid atmosphere of domestic violence. There was a significant amount of violence that she has witnessed in the past. She was subject to serious emotional neglect and physical and sexual abuse. The descriptions of her as a young offender even at 15 are disturbing, they involve issues of self-harm and depression. She has had a continuing history of drug abuse, she descending, as Price J refers to it, into alcohol and drug abuse at an early age. She has had residual symptoms of a multiplicity of psychiatric disorders which I do not repeat. They are essentially on the public record and in respect of her sentence and I simply need to note that I take them into account. As his Honour notes, and I note there are considerations obviously in respect of the offender's mental illness which make her a less appropriate vehicle for general deterrence that might otherwise be applicable, nevertheless as again is noted by Price J those matters are not entirely irrelevant to the sentencing exercise. I have to bear in mind, of course, issues of general deterrence, specific deterrence, denunciation, a protection of the community and rehabilitation are in the act of intuitively synthesising a sentence. There is obviously a need for assistance to the offender in respect of her psychological and psychiatric condition. Once she is released there is obviously a need for her to be given ongoing assistance with drug and alcohol counselling. This offence appears to be symptomatic in part of severe disinhibition. The problem appears to be exacerbated by the relationship she had with Ms Skene who also obviously had a difficulty with alcohol on the date of the commission of the offence. … I note the psychiatric issues to which I have referred to, the dysfunctional background and the significant degree of deprivation consistent with Bugmy v The Queen [2013] HCA 37. As was noted essentially she has only been sentenced on relatively few occasions. She is relatively young, I do not give a great deal of relevance to the facts in the manslaughter case, it seems to me that that is totally unlike the present situation and it was a reaction of a disturbed person to disturbing conduct by the victim. I, of course, in the circumstances find special circumstances. She will need supervision and assistance. I do not accept the view that there is any need in this case for any issue in respect of Veen (No 2) v The Queen (1988) 164 CLR 465. The record does not justify such a conclusion and nor do the circumstances, in my view, of the offence. I note that there is a degree of need for specific deterrence but, of course, that has to be balance in respect of the matters I have already found in relation to the psychological and psychiatric condition of the offender."
His Honour determined that "this is a serious offence" and reiterated that it was aggravated by the respondent having been relatively recently released and being on parole.
His Honour found that the property damage offence was totally subsumed by the primary offence: "it was one course of criminality attempting to gain access to the place that she was living in". The breach of the ADVO offence was also encompassed within the criminality of the primary offence. For these reasons he determined to order that the sentences be served concurrently. The Crown makes no complaint about that.
Finally, his Honour noted that the offence was "an attempt and not an actually completed offence".

Ground 1 - The sentencing judge erred in backdating the sentence so that only one month of the respondent's custody was solely referrable to the non-parole period of the index offence

In Callaghan v R a judge had ordered that a sentence be wholly accumulated upon a period of balance of parole that the offender had served following revocation. The revocation was exclusively referable to the charges giving rise to the new sentence. It was contended on appeal that he had been "doubly punished".
Simpson J referred to earlier cases in this Court in which the issue had been considered. She continued: "[21] That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced. [22] I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. [23] It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. [24] However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences. [25] Thus, I am of the view that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving. That allowed her a period of six months. She could have specified the current sentences to commence at any time during that period." (Emphasis added)
The clear point is that the issue is one of discretion. It must, of course, be exercised in a principled way: Barnes v R [2014] NSWCCA 224 at [28].
The Crown complains that the sentence for the primary offence will only extend beyond the parole period for the manslaughter sentence by about a month.
It is important to bear in mind that the parole was revoked only because of the respondent's commission of the index offences. As Simpson J noted in the italicised passage in the above extract, if not for the new offences, it may have been the case that even if parole had been revoked for some other reason the respondent may have been given a further chance at parole.
The option available to the sentencing judge according to the requirements of the Crimes (Sentencing Procedure) Act was to date the sentence at any time from the date of the respondent's arrest and refusal of bail through until the date sentence was imposed. It is clear that he carefully considered this discretionary issue and chose to adopt a middle course by specifying that the sentence post-date the respondent's incarceration for the present matters by 9 months. In other words, she would serve (in round terms) 9 months solely referable to the parole period of the previous sentence, 11 months referable to both matters and then a further 1 month solely referable to the primary offence.
I am not persuaded that this was not a sound discretionary choice. If the judge had adopted the submission the Crown made to him, he would have dated the sentence from 23 March 2016 and under this regime the respondent would serve an extra 5.5 months before being released on parole. When one has regard to the purposes of Crown appeals against sentence I do not think this is a matter for the Crown to quibble about.
I would reject Ground 1.

Ground 2 - The sentencing judge erred in failing to consider the protection of the community

Ground 3 - The sentencing judge erred in failing to adequately consider specific deterrence leading to the imposition of a sentence that is manifestly inadequate

The Crown's written submissions noted that the judge had relied upon Price J's assessment of the psychiatric evidence that was before him. This was said to be unobjectionable provided that it was appropriately adapted to reflect the facts of the further offending. However, it was submitted, his Honour did not conduct this further analysis. In particular, he did not take into account that the evidence before Price J was directed at the question of whether the defence of substantial impairment was available rather than the issues raised in this sentencing exercise. Further, there was no evidence that the respondent was suffering from the psychotic symptoms she was reported to have been experiencing at the time of the manslaughter offence three years earlier. It was stated in a report by a social worker that was prepared in 2016 and tendered in the present proceedings that the respondent's mental health was "stable".
The Crown submitted that the present matter involved a violent attack upon a person with whom the respondent was living, in circumstances of gross intoxication. It was contended that the fact it occurred only nine days after being released on parole for a second time indicated that the respondent poses a significant risk to the community and that considerations of specific deterrence were elevated. Whilst mention was made by his Honour of protection of the community, he failed (so it was submitted) "to make any meaningful assessment of the extent to which the sentence was required to reflect that consideration".
I am not persuaded that either of these asserted errors occurred. The judge specifically stated that he had to bear in mind the various purposes of sentencing which included specific deterrence and protection of the community. Perhaps he might have said that he gave these matters particular emphasis having regard to the matters the Crown has identified. But, as counsel for the respondent has correctly observed, this is a matter of "weight" and there is ample authority for the proposition that the circumstances in which this Court will be justified in intervening in relation to such a matter are narrowly confined: see, for example, R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing).
A further matter raised in support of these grounds was that there was similarity between the circumstances of these offences and that of the manslaughter offence in 2011. In my respectful view, whilst both occurred in a residential environment when the respondent was intoxicated, the manslaughter offence was significantly different in that it occurred when the respondent was substantially impaired by an abnormality of mind in the manner described earlier (at [10]-[11]) and involved a response to what she perceived was an imminent sexual assault upon her.
I would reject Grounds 2 and 3.

Ground 4 - The sentence is manifestly inadequate

The Crown's written submission in relation to this ground was succinct and may be reproduced in full: "The respondent stood to be sentenced after trial for what his Honour correctly described as a serious offence, aggravated by reason of its having been committed on parole. For the reasons described above, considerations of personal deterrence and the protection of the community loomed large in this sentencing exercise. Notwithstanding the respondent's compelling subjective case, a head sentence of 21 months with a non-parole period of 12 months was insufficient to reflect the objective gravity of the offending. The inadequacy of the sentence was further compounded by the setting of a commencement date that resulted in virtually no additional punishment being imposed for this grave offence."
The judge did not say more about his assessment of the relative level of seriousness of the offence aside from twice saying that it was "a serious offence". Submissions for the respondent made the point that it needed to be kept in the perspective of the range of conduct encapsulated by s 37 of the Crimes Act. A 10 year maximum penalty applies to the offence in s 37(1): (1) A person is guilty of an offence if the person: (a) intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and (b) is reckless as to rendering the other person unconscious, insensible or incapable of resistance.
The respondent did not suffocate or strangle her victim. She did not render her unconscious or insensible. She attempted to choke in order to render her incapable of resistance. It was undoubtedly a serious matter as the judge found, but he also found it occurred in the context of a "torrid and dysfunctional relationship marked by episodes of violence"; he could not determine how the fight started although it was likely to have arisen out of some dispute between the pair earlier in the day and whilst they were both very significantly affected by alcohol. There was also the fact, as the judge noted, that the victim did not sustain any apparent permanent injury but that the respondent did.
Having regard to what the Crown conceded was the respondent's "compelling subjective case", and not being persuaded of the asserted errors under the previous grounds, I am not prepared to conclude that the sentence is manifestly inadequate.

Order

I propose the following order: Crown appeal against sentence dismissed.
ADAMSON J: I agree with R A Hulme J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2016

Crimes Act 1900(NSW)ss 23A, 37(1), 195

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