State of New South Wales v Hollaway

Ms Hollaway's background

1. A report by Mr Samuel Ardasinski, Senior Psychologist, Serious Offenders Assessment Unit, titled "Risk Assessment Report" and dated 2 November 2016, is the source of the following information about Ms Hollaway's general background. (Aff Ms Senanayake 6.6.17 at pp 9-10)
2. Ms Hollaway was born in Grafton. Her parents separated before she was one. Her mother met a new partner shortly thereafter and she was raised by her mother and step-father during her formative years. She has a number of siblings and half-siblings. The family moved around a lot. There was a family history of mental illness.
3. Ms Hollaway reported being physically and emotionally abused by her step-father, as well as being sexually abused by her step-father and several other men. She felt that her mother did not protect her enough; she was sent to live with her biological father from the age of 11 after having reported the sexual abuse to her mother.
4. Ms Hollaway became a ward of the State from the age of 13 after further abuse by a neighbour. She left school in Year 8. She subsequently taught herself to read and write and Mr Ardasinski opined that she "appears to be quite capable and intelligent".
5. Ms Hollaway developed a cannabis habit by the age of 12 and at eating disorder by age 13. She endured a miscarriage at age 15, which was followed by a period of psychiatric admission for self-harm. She used heroin regularly for a year at the age of 16 and then speed at the age of 17.
6. Ms Hollaway met her long-term partner, Ms Kay Skene, in a rehabilitation facility when she was aged 18. They went on to chronically abuse alcohol together for the next few years, moving from state to state.
7. Ms Hollaway has a sporadic work history in mostly unskilled employment.
8. Mr Ardasinski opined that "Ms Hollaway's drug use history has apparently interacted with a genetic predisposition to developing mental health issues", noting that she had been hospitalised for drug-induced psychosis on a number of occasions since her late teens.

Ms Hollaway's criminal history (s 9(3)(h)) and the views of sentencing judges (s 9(3)(h1))

Manslaughter

1. There is only one "serious violence offence" in Ms Hollaway's criminal history. That offence, manslaughter, was committed in April 2011. The killing was accepted to amount to manslaughter on the basis of substantial impairment by abnormality of mind.
2. The victim was a man with whom Ms Hollaway was living. She had moved into the house with her partner, Ms Kay Skene, some weeks before. Ms Skene had previously told her that she had been raped by this man. At some stage while living there Ms Skene was taken into custody in respect of some outstanding warrants. Ms Hollaway remained living at the man's house.
3. On the day of the offence the victim and Ms Hollaway had been smoking cannabis and drinking alcohol throughout the day. Ms Hollaway went to the kitchen in the late afternoon and the victim came up behind her. He grabbed her around the neck saying "you owe me, you owe me, I'm going to have my way". Ms Hollaway feared she was going to be raped or killed. She broke free, grabbed a knife and stabbed the man. She said that he kept coming at her so she stabbed him about three times until he staggered back and fell.
4. The foregoing was the essence of Ms Hollaway's account but Price J observed that her honesty and reliability was supported by the victim's history of sexual disinhibition and impulsive violence: R v Hollaway [2013] NSWSC 218 at [6]. Substantial impairment by abnormality of mind was based upon the opinions of three respected forensic psychiatrists to the effect that Ms Hollaway was suffering from psychosis at the time. In his judgment on sentence, Price J stated (at [16]: "I find it is more probable than not that at the time of the stabbing, the offender'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. The wide embrace of the offender's substantial impairment, reduces significantly the offender's moral culpability for the offence: s 21A(3)(j) Crimes (Sentencing Procedure) Act 1999. However, it does not negate her moral culpability: R v Dawes [2004] NSWCCA 363 at [34]."
5. Price J (at [19]) was also satisfied that Ms Hollaway was led to believe by the victim that he intended to sexually assault her. Accordingly, there was provocation as well as a belief that it was necessary to act in self-defence, although her response was not a reasonable one in the circumstances. He found (at [20]) that the offence was "not planned" and was "committed on the spur of the moment, the offender reacting to the exigencies that she found herself in" and regarded this as a mitigating factor. Another mitigating factor taken into account (at [23]) was that Ms Hollaway was remorseful.
6. Significantly for present purposes Price J said (at [19]): "Without the deceased's sexual advances upon the offender, the offence would not have occurred."
7. Price J noted that Ms Hollaway had a childhood of marked developmental adversity, having been subjected to serious emotional neglect and physical and sexual abuse. He found that her dysfunctional background was causative of her descent into alcohol and drug abuse at an early stage (at [29]).
8. His Honour was not prepared to find that Ms Hollaway was unlikely to re-offend or had good prospects of rehabilitation. He considered that much would depend on her ability to avoid relapsing into alcohol and/or drug misuse upon release. Her previous failures to overcome the use of drugs "did not encourage an optimistic view being taken". The sentence was structured so as to provide for an extended period under parole supervision in relation to her mental state and abstention from drug and alcohol use. He recommended that there be strict conditions of parole supervision. (R v Hollaway at [34]; [37]; [40])

Attempt to choke so as to render incapable of resistance

1. Ms Hollaway was released on parole at the expiration of the non-parole period of the manslaughter sentence in June 2014 and resumed a domestic relationship with Ms Skene. In August 2014 she damaged some property belonging to Ms Skene while very affected by alcohol. She received a six week sentence of imprisonment and her parole was revoked. She was next released in December 2014 but only insofar as to permit her to live in a country town at a residential diversionary program for female offenders with mental health and drug and alcohol abuse issues. She left the program on 26 January 2015.
2. An ADVO had been made on 17 September 2014 that prohibited Ms Hollaway from going near premises where Ms Skene lived. Despite this, on 4 February 2015 the pair spent the day drinking together. That evening Ms Hollaway went to Ms Skene's home and broke a window with a pot plant. She attempted to gain access to the unit by repeatedly banging on the front door and shouting. Ms Skene opened the door and was attacked by Ms Hollaway.
3. Police attended and saw Ms Hollaway sitting on Ms Skene, who was face down. She had her hands around Ms Skene's throat and was pulling her neck backwards. Ms Skene was screaming and attempting to crawl to the door. Police could see that her resistance was fading.
4. McClintock SC DCJ sentenced Ms Hollaway on 27 May 2016 for an offence against s 37(1) of the Crimes Act 1900 (NSW) of attempting to choke Ms Skene so as to render her incapable of resistance. Ms Hollaway had pleaded not guilty but was convicted after a jury trial. This is not a "serious violence offence" under the Act.
5. The sentence imposed was one of 1 year 9 months with a non-parole period of 1 year. It was ordered to be served concurrently with sentences of 3 months and 1 month for offences of intentionally damaging property and breaching an apprehended domestic violence order ("ADVO"). The Crown appealed against the asserted inadequacy of the sentence for the attempted choking offence but the appeal was dismissed: R v Hollaway [2016] NSWCCA 166.
6. Despite having heard all of the evidence during the trial, McClintock SC DCJ said he was unable to determine how the fight had started. He noted that Ms Hollaway had lost two teeth. He said it was apparent that Ms Hollaway was "seriously disinhibited by alcohol" and "agitated and upset" at the time she attempted to gain access to Ms Skene's unit. He concluded that the most likely explanation was that the fight arose out of some dispute earlier in the day in circumstances where both parties were very significantly affected by alcohol. (ROS p5; Annex B to aff of Ms Senanayake 30.6.17)
7. McClintock SC DCJ referred to the sentence judgment of Price J in the manslaughter matter, various psychiatric reports, and a social worker's report. He concluded: "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." (ROS 8)
8. As to the relevance of the prior offending, his Honour said: "[E]ssentially 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 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 balanced in respect of the matters I have already found in relation to the psychological and psychiatric condition of the offender." (ROS 9)
9. It may be assumed by his reference to Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 that his Honour had in mind the famous passage in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ at 477: "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell [(1970) A.C. 642, at p 650]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. …"
10. As a condition of the parole order his Honour made, he specified that Ms Hollaway was to be supervised for the full term of her parole and she was to "undertake such drug and alcohol courses, psychological counselling including anger management courses as directed by Community Corrections". (ROS 11)
11. The Court of Criminal Appeal rejected a complaint by the Crown that McClintock SC DCJ had failed to make any meaningful assessment of the extent to which the sentence was required to reflect the protection of the community. The judge had specifically referred to the various purposes of sentencing, which included specific deterrence and protection of the community, and the extent to which they were relevant was a matter for his Honour's discretionary assessment: R v Hollaway [2016] NSWCCA 166 at [37].
12. The Court also rejected an argument by the Crown in support of its assertion that there was a failure to consider specific deterrence and protection of the community, that there was a similarity between the circumstances of the index offence and the manslaughter offence in 2011 (at [38]): "[W]hilst 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 … and involved a response to what she perceived was an imminent sexual assault upon her."
13. As to the Crown's assertion that the sentence was manifestly inadequate, it was said (at [41]-[43]): "… 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."

Balance of criminal history

1. In my judgment in R v Hollaway [2016] NSWCCA 166 I set out in the following table Ms Hollaway's criminal history. (I have excluded reference to the manslaughter offence discussed above.) Offence Date of offence Date of outcome Outcome Contravene apprehended violence order 4.11.02 2.12.02 Dismissed with caution (aged 13) Malicious wounding; contravene apprehended domestic violence order 7.9.06 7.11.08 Supervised probation for 12 months (aged 17) (After having failed to appear on 13.12.07) Assault 24.4.07 3.10.07 Supervised good behaviour bond for 12 months (aged 18) 7.11.08 Further 12 month bond (appealed) (Call-up for breach of bond) 27.2.13 (After having failed to appear for appeal) 1 month 5 days imprisonment 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 17.5.11 (After having failed to appear on 26.8.09 and 13.4.11) Supervised good behaviour bond for 12 months (aged 20) Aggravated assault 27.8.10 14.9.10 Fine (aged 21) Breach restraining order 30.5.10 31.5.10 Fine (aged 21) Destroy/damage 7.3.11 13.4.11 Fine property (aged 22) 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

1. The submissions for the State noted the following aspects of some of these entries.
2. In relation to the malicious wounding offence on 7 September 2006 (when Ms Hollaway was 17 years old) she had lunged at the stomach of her step-father with a 30 cm knife after she had returned home from a party and had been told to be quiet. His hand was cut after he grabbed the blade. One of the reports before me notes that Ms Hollaway denied any intent to stab her step-father, saying that she only wielded the knife to scare him away. It was also noted in the report that she reported having been physically and sexually abused by her step-father. (PWS 29).
3. In relation to the assault committed on 24 April 2007 Ms Hollaway had been drinking with a man with whom she was in a relationship. She locked the front door of the place where they were and he climbed out of a front window. She punched him in the face as he did so. When he was outside refitting the flyscreen she slashed at him with a breadknife. (PWS 29)
4. In relation to the offence of destroy/damage property committed on 7 March 2011 (for which a fine was imposed) Ms Hollaway and Ms Skene had a domestic dispute in the home of another person. Ms Hollaway asked to borrow that person's mobile phone and then smashed it. She and Ms Skene left the home after the police were called, but they returned later in the night and Ms Hollaway threatened the person, wielding a bottle-opener with a small blade. The person called the police again and locked Ms Hollaway out of the house. When the police arrived they heard smashing glass and saw Ms Hollaway making her way into the home via a rear window carrying a small knife. Police directed her to drop the knife and she did. (PWS 29)

Assessment by Mr Samuel Ardasinski, psychologist (s 9(3)(c))

1. For the purposes of the "Risk Assessment Report", Mr Ardasinski reviewed a volume of documentary material and interviewed Ms Hollaway on 24 October 2016. She had previously been advised that this related to the State considering making an application for an order under the Act. She was co-operative.
2. Before referring to Mr Ardasinski's opinions it is useful to note some matters in his report.
3. Mr Ardasinski reviewed psychiatric reports that were prepared in relation to the sentencing of Ms Hollaway in 2013 for the manslaughter offence. He observed (at [18]): "[I]f Ms Hollaway does not already have a chronic psychotic illness such as schizophrenia which is currently medicated and controlled within the restrictive environment of custody, Ms Hollaway is at very high risk of developing a chronic psychotic illness if she were to return to regular illicit drug abuse upon her eventual release from custody."
4. After having referred to Ms Hollaway's substance abuse problems and the programs she had engaged with in that respect, Mr Ardasinski wrote (at [21]): "Without more targeted intervention into the underlying causes of her substances use, and sufficient time in the community without the negative influence of peers who encourage or tolerate drug use and binge drinking, a return to problematic substance use remains likely."
5. Mr Ardasinski discussed (at [22]-[24]) Ms Hollaway's involvement in "Offender Programs". He noted that (regrettably) the "highest-intensity programs … run within the model of a 'therapeutic community' … [which] are designed to provide offenders with 24-hour, 7-day-a-week opportunities to work intensively on changing their thinking, attitudes, and feelings which led to their offending behaviour" are not available to female inmates. Ms Hollaway had completed programs relating to addiction and anger management, but Mr Ardasinski considered that she "likely requires further efforts to fully address her needs". He concluded (at [24]): "[N]o intervention of sufficient intensity has yet been done into her trauma history […] which seems to be causal to her substance use issues and mental state. A high-risk offender, under the principles of the risk-needs-responsivity principles of Andrews & Bonta (2010), typically requires a high-intensity therapeutic program to address his or her criminogenic needs."
6. The report proceeds with discussion of "risk assessment" in relation to Ms Hollaway. It includes an acknowledgement of the difficulties of predicting reoffending, shortcomings with assessment tools and, in particular, the difficulty in distinguishing between a risk of a further violence offence as opposed to a "serious violence offence" within the meaning of the Act. Mr Ardasinski noted (at [36]) that "the recidivism rates specific to a serious violent offence (e.g. homicide) are known to be lower than that identified for general violent recidivism".
7. The most likely scenario in which future violent offending might occur in Ms Hollaway's case, and particularly the possible commission of a "serious violence offence" was described as follows (at [40]-[41]): "Based on the available information it is considered that Ms Hollaway's most serious violence appears to occur within the context of domestic settings, against people she knows, when she has been drinking and/or using drugs, possibly experiences a resultant destabilisation in her mental health and feels somehow provoked by the victim. If she has access to a knife, this may exacerbate the seriousness of the violence perpetrated. On the balance of the evidence the above high risk scenario could potentially result in serious violence, since Ms Hollaway has, on more than one occasion, been involved in violent acts which have either involved the use of a knife, were lethal or life-threatening. There certainly appears to be a risk that Ms Hollaway may commit another serious violent offence if she returns to a violent relationship or engages in problematic drinking and other substance misuse. There is a demonstrated empirical link between substance abuse and repeat domestic violence."
8. In concluding as to the "overall risk", Mr Ardasinski said in part (at [43]): "The overall totality of evidence suggests that Ms Hollaway falls in the High risk category of violent offending relative to other adult violent offenders. The most serious violence perpetrated by Ms Hollaway was lethal violence. However, the circumstances of this act of serious violence have been described by the learned Judge at sentencing in terms which suggest that the violence was provoked, and that Ms Hollaway is unlikely to repeat such an act of serious violence. However, the reality is that Ms Hollaway has been involved in violence using a knife on several occasions, and on at least one occasion the harm caused could have been lethal had it not been for intervention."
9. Mr Ardasinski provided a supplementary report dated 29 September 2017 after he had the opportunity of reviewing the reports of the court-appointed experts (which are to be discussed shortly) and from "consulting with relevant stakeholders". He said (at [6]) that nothing gave him cause "to amend [his] ultimate conclusion with regards to the high risk Ms Hollaway poses of committing a further serious violence offence".

Assessment by court-appointed experts (s 9(3)(b))

1. Dr Andrew Ellis, forensic psychiatrist, and Mr Patrick Sheehan, forensic psychologist, were appointed by the Court to conduct examinations and furnish reports pursuant to s 7(4) of the Act.

Report of Dr Ellis

1. Dr Ellis was provided with a large amount of documentary material pertaining to Ms Hollaway and carried out a clinical interview with Ms Hollaway for two hours on 24 August 2017.
2. Dr Ellis reported (at p 11) that Ms Hollaway met the criteria for: a) Psychotic disorder b) Substance use disorder c) Post-traumatic stress disorder d) Borderline personality disorder
3. As to the psychotic disorder he said: "While I note there has been some contention as to whether this was substance induced psychotic disorder or a longer term psychotic disorder of internal origin such as schizophrenia, the length of time the symptoms were present and their severity would point towards the latter diagnosis at this juncture. Given her experience when ceasing medication of resuming voices, insomnia, increased anxiety and less organisation of her thought processes it is more likely that an underlying mental illness is present, however currently well treated with antipsychotic medication. The conversion rate of substance induced psychotic disorders to schizophrenia is very high, particularly for cannabis and amphetamine induced psychoses. Given her sensitivity to development of psychosis ongoing treatment would be recommended in either case. It may be that at some distant point in the future over the period of years if stability of mental state continues a gradual controlled trial of medication cessation may be warranted to achieve diagnostic clarity. While a major mental illness such as schizophrenia is a chronic and enduring condition if untreated, a substance induced psychotic disorder is an intermittent relapsing condition, more so if substance use continues."
4. The substance use disorder particularly relates to Ms Hollaway's use of alcohol, cannabis and opioids. It was "currently in early remission whilst under supervision".
5. The diagnosis of post-traumatic stress disorder was based upon the "traumatic events which occurred at crucial developmental stages of [Ms Hollaway's] life", including physical and sexual violence.
6. The diagnosis of borderline personality disorder related to Ms Hollaway's early developmental traumas. While she had a history of conduct disorder in childhood, Dr Ellis considered that she did not likely meet the criteria for antisocial personality disorder as an adult. He explained: "She does not present with a callous lack of remorse, and her aggression has been associated with interpersonal disputes, intoxication and poor impulse control rather than acquisitive crime and a diverse range of offending."
7. Dr Ellis discussed the difficulties of risk assessment, commencing this segment of his report as follows: "With current risk assessment techniques in behavioural science it is not possible to determine whether an individual person will reoffend with a violent offence, or more specifically a serious violent offence as defined by law."
8. Dr Ellis said that it was possible to identify risk factors in order to manage reoffending risk. Actuarial measures and structured professional judgment tools can allocate individuals to risk groups but they did not discriminate between those in a particular risk group who do and do not reoffend. They are, however, superior to unaided clinical impression. These measures or tools tend to more correctly identify low risk groups who do not offend than high risk groups who do go on to offend. He added the following important qualification: "No tool specifically assesses for serious violent offending which could or does result in significant injury or legal consequences. These types of offences are rarer, and thus statistical methods are unable to reliably detect them in large samples."
9. Dr Ellis proceeded to discuss the following matters pertaining to Ms Hollaway: ● A history of problems with violence beginning in adolescence accompanied by persistent other antisocial behaviour, both in adolescence and adult life. ● A history of problems in relationships with highly unstable intimate relationships, domestic violence in relationships and unstable non-intimate relationships. Dr Ellis noted that "all of the reported violence is related to interpersonal dispute". ● A poor record of employment. ● Serious substance abuse which was clearly associated with Ms Hollaway's pattern of violence. ● The diagnosis of borderline personality disorder. ● Mr Hollaway's long term justifications of a need to defend herself as a person vulnerable to abuse, including weapon use. ● A history of substance induced psychosis associated with violence. ● The diagnosis of post-traumatic stress disorder related to personal experience of abuse. ● Failure on previous conditional supervised release.
10. Dr Ellis concluded the listing of these matters by stating: "This indicates a high loading of historical risk factors associated with violence in the longer term, compared to the general prison population."
11. As to the present, Dr Ellis stated: "She currently displays modest insight into her propensity for violence and understanding of need for treatment and management. She does indicate an intention to accept treatment and rehabilitation now, however has previously, particularly in community supervision settings failed to take advantage of rehabilitation services available. Therefore sustained insight that motivates long term change is yet to be demonstrated. She continues to view violence as acceptable in solving problems in certain circumstances. She shows stability of mental state currently with no symptoms of psychosis but some anger, and likely long term issues with impulsivity. She does not have identified stress management techniques. This indicates a moderate-high loading of modifiable risk factors that render internal control of baseline historical risk problematic."
12. Dr Ellis anticipated that future problems associated with violence would be limited personal community supports and likely problems consistently engaging in treatment and supervision.
13. He concluded on this aspect: "This indicates a high need for professional services and plans to contain the potential for violence. She is still relatively young indicating that maturity has yet to impact on reducing risk."
14. Ultimately, Dr Ellis expressed the following view as to Ms Hollaway's risk of future violent offending: "A consideration of the type of possible violent offence should be considered in an estimation of risk. In the case of Ms Hollaway, given the past pattern of serious violence, victims are likely to be adults with whom she has some close personal interaction and conflict. She has yet to show insight into her relationship choices, and choosing partners or associates who have their own interpersonal issues remains likely. Psychotic symptoms may be present during intoxication, increasing her fear and anger during an assault. The most likely violent acts would be impulsive and without weapons. The history of using improvised weapons, when she perceives herself under threat, or sustained attacks when she is enraged about a relationship render the chance that violence she engages in could escalate to a serious level where physical injury is foreseeable. In considering structured professional and clinical parameters in the absence of any treatment or supervision, Ms. Hollaway would fall into a group of persons with a risk for violent offending … that is statistically high in frequency with potential for serious consequence in her specific case, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk."

Report of Mr Sheehan

1. Mr Sheehan was similarly briefed with volumes of documentary material pertaining to Ms Hollaway. He interviewed her on 1 September 2017 over two and a half hours. His report sets out the circumstances of her life, including her criminal history, in considerable detail. I will only refer to some particularly pertinent aspects.
2. Mr Sheehan noted (at [38]) that Ms Hollaway has a mixed history of institutional adjustment. There had been 17 institutional misconduct charges over her various sentences. None were aggression related; most were drug related. He also noted (at [39]) that Ms Hollaway had participated in some custodial programs, such as EQUIPS (Addictions) in 2016, CALM and POISE in 2014 as well as having a reasonable history of institutional employment.
3. Mr Sheehan reviewed Ms Hollaway's psychiatric history ([51]-[59]) and proferred his own opinions as to diagnoses. In his view she met the criteria for substance use disorder, antisocial personality disorder and borderline personality disorder. With respect to Mr Sheehan, I prefer to give greater weight to those of Dr Ellis.
4. As did Dr Ellis, Mr Sheehan acknowledged the difficulties of determining the risk of future offending. (Report at [68]-[73])
5. The Violence Risk Scale actuarial tool yielded for Ms Hollaway an estimate of her risk for violence in the High range. However, Mr Sheehan listed a number of caveats to this assessment, including limitations to the extent that it can be confidently applied to female violent offenders. A further need for caution was the fact that the reoffending considered was not necessarily that which would fall within the definition of a "serious violence offence". (Report at [74]-[75])
6. Mr Sheehan made an assessment of various dynamic risk factors in Ms Hollaway's case. The most significant appear to be the following:

• Violent Lifestyle: Mr Sheehan did not consider that violence was a way of life for Ms Hollaway. Rather, her past violence has been triggered in a particular set of circumstances where she feels victimised and activates associations with her own past trauma and abuse.
• Criminal attitudes: Mr Sheehan noted that Ms Hollaway had a range of criminal attitudes that have supported a pattern of non-conformity and rule breaking behaviour during her life. He regarded her as being "generally poor at accepting responsibility for her own behaviour and generally lives by the moment".
• Criminal peers: Mr Sheehan regarded Ms Hollaway's violence potential to be maximised in the company of antisocial associates who are more likely to escalate or trigger hostilities with her, triggering an excessive defensive response.
• Interpersonal aggression: Mr Sheehan wrote: "Ms Hollaway has used aggression on multiple occasions over [her] lifespan through actual interpersonal violence, hostility, destruction of property or passive aggression. Her aggression history borders extensive but she is not aggressive and threatening in all circumstances or even most circumstances, and her aggression appears bound by specific contextual factors that prompt the activation of aggression."
• Emotional control: Poor emotional control was noted as a prominent feature of past episodes of interpersonal violence with intense anger seemingly connected to past events and often disinhibited by substance abuse.
• Weapon use: The manslaughter and malicious wounding offences in Ms Hollaway's record involved knives. Mr Sheehan noted other reports of her having used knives or sharp objects to threaten.
• Insight into violence: Mr Sheehan's comments on this factor suggest that Ms Hollaway blames others for her past violence with little acceptance of her own responsibility.
• Mental disorder: Mr Sheehan noted a strong association between Ms Hollaway's mental disorder and episodes of violence (e.g. the manslaughter offence).
• Substance abuse: There was also a strong association between this factor and the expression of violence, particularly in relation to alcohol. It is an ongoing issue despite significant interventions.
• Stability of relationships: Abusive and dysfunctional relationships, which are characteristic of Ms Hollaway's history, heighten the risk of provoking associations with previous trauma in her life and triggering feelings of insecurity which can manifest in anger.
• Community support: Ms Hollaway has consistently eschewed positive supports and gravitated towards high risk situations. Mr Sheehan considers it unlikely that she will persist with formal supports in the absence of an ESO or other order mandating her participation.
• Released to high risk situations: Mr Sheehan noted Ms Hollaway's history of quickly returning to high risk situations following release, even when there has been planning for the contrary. In the absence of the current interim supervision order she would have been released at the expiry of her sentence with no fixed address, with recent drug use in custody and looking to meet a substance using partner (the latter being a matter of controversy but history would indicate, in my view, a distinct risk). All of this, in Mr Sheehan's opinion, would constitute a high risk situation.
• Violence cycle: Mr Sheehan wrote: "Ms Hollaway's cycle of violence has revolved around unstable relationships with people in her life, generally following a pattern of attachment, insecurity, hostility, substance abuse and violence. There is often an ambiguous mix of victim/perpetrator dynamics in her acts of violence."
• Impulsivity: Ms Hollaway has a history of impulsivity. All of her known acts of violence appear to have occurred in the spur of the moment. Her general pattern of life is a reactive one.
• Cognitive distortion: Interpreting current events through the lens of past abusive experiences has been central to Ms Hollaway's violent offending. She has a one dimensional view of herself as a victim. Violence is something that happens to her. She cannot see her aggression as a choice. Mr Sheehan regarded this distortion as undermining her ability to engage in active risk management.

1. Under the heading "Rick Scenarios and formulation" ([98]) Mr Sheehan wrote in part: "Ms Hollaway would likely be unemployed at the time of any violence, with no stable address, moving impulsively from place to place. She may neglect to take prescribed medications. Fluctuations in her mental health may also be relevant to increasing her risk of violence, further impairing her appraisal, increasing autonomic arousal and threat perception. This dynamic suggests that she is most likely to be a risk of violence to those she closely associates with (family, partners and associates). Heightened risk is present when the person has features of antisociality, substance abuse or other disordered behaviour. Any violence would likely be impulsive. A weapon could be used if one was immediately available to her at the time of conflict. Alcohol intoxication would likely be involved, but use of illicit substances may also increase [the] risk of violence."
2. As to Ms Hollaway's "overall risk", Mr Sheehan wrote ([100]): "The overall totality of evidence suggests that Ms Hollaway would be considered to be within the High risk category of violent offending relative to other adult female offenders. Whilst the absence of a dysfunctional intimate relationship or psychosis are current protective factors, there is insufficient progress with the other correlates of risk particularly substance use disorder, poor affective regulation, impulsivity, confusion between victim/aggressor issues, and a resultant absence of a detailed insightful plan for how to navigate the future without exposing herself to high risk violence scenarios. In my estimation Ms Hollaway remains high[ly] vulnerable to establishing unhelpful or destabilising associations in the short term (whether friends or intimate partners), and such associations would aggravate the risk of conflict. It is difficult to predict to what extent that any violence would approach the threshold of a "serious violent offence" as defined in the Crimes (High Risk Offenders) Act 2006. In these cases, the extent of injury in an assault can be influenced by variables that cannot be accounted for. I note that her violence has only once met the criteria for a serious violent offence. However, the use of weapons (knives) would seem to add to the likelihood of a serious violence offence should Ms Hollaway follow her prior pathways to violence."

Ms Hollaway's history since release on parole on 9 June 2014 (s 9(3)(f))

1. An account of Ms Hollaway's conduct since she was released on parole on 9 June 2014 in respect of the manslaughter sentence may be drawn from Ms Sheehan's report ([41]-[44]), as well as from other documents relied upon by the State, including a chronology handed up at the hearing.
2. The sentence for the manslaughter offence was 5 years 4 months with a non-parole period of 3 years dating from 10 June 2011. Accordingly, Ms Hollaway became eligible for release on parole on 9 June 2014 and she was released on that day. She took up residence with her long-term partner, Ms Kay Skene (NS-1 p 231).
3. A drug test on 16 July 2014 was positive for cannabis. On 15-16 August 2014 Ms Hollaway committed an offence of malicious damage property. Ms Skene came home in the early hours of the morning to find that items of her property ($2,500 worth of electrical items) had been damaged. Ms Hollaway told Ms Skene, "You deserve it" and "You've been out with blokes drinking". She was arrested later that morning and refused bail. Her parole was later revoked effective from 16 August 2014. (NS-1 p 34, 232-233).
4. On 19 December 2014 Ms Hollaway was released on parole but required to enter a residential diversionary program. Mr Sheehan observed that she attracted program sanctions for the use of alcohol and cannabis but otherwise showed an improving attitude, participating in programs, group sessions and counselling. However, she discharged herself from the program on 26 January 2015. (Report [42]; NS-1 p292)
5. Ms Hollaway committed the attempted choking offence on 4 February 2015 and was bail refused following her arrest that day. The State Parole Authority later revoked her parole, effective from that date.
6. The sentence for the attempted choking offence, to reiterate, was one of 1 year 9 months with a non-parole period of 1 year dating from 4 November 2015. Accordingly she became entitled to release on parole on 3 November 2016 and she was in fact released on that day with a requirement that she live in Dubbo.
7. A Breach of Parole Report was submitted on 11 November 2016. The alleged breaches were the use of cannabis which Ms Hollaway had admitted in an interview on 9 November and a failure to report to Community Corrections on 11 November. She had travelled to Sydney and made contact with Ms Skene contrary to directions she had been given. (NS-1 303; 605)
8. Parole was revoked and Ms Hollaway returned to custody on 28 December 2016. (NS 30.6.17 at 21; 23)
9. Ms Hollaway was again paroled on 10 May 2017 and required to return to the same residential diversionary program she had discharged herself from in January 2015. She did not return to the program but stayed the night of 10 May in Sydney with Ms Skene. Telephone contact was made and she was directed to attend the residential facility the next day. She failed to attend. Parole was revoked. She was arrested on 24 May 2017 and returned to custody. She was found to be in possession of cannabis, which she had internally secreted (for which a fine was imposed on 12 July 2017). (NS 25.7.17 at 4-7; 21)
10. The total term of the sentence for the manslaughter offence expired on 9 October 2016. The total term for the attempted choking expired on 16 August 2017. Ms Hollaway has been the subject of an interim supervision order under the Act since her release on that date (State of New South Wales v Hollaway [2017] NSWSC 1000). Aside from a brief period elsewhere, Ms Hollaway has lived at the same residential diversionary program as before. In the affidavit of Ms Leanne Andrews, an accommodation support worker with Corrective Services NSW, of 18 September 2017, Ms Andrews said that Ms Hollaway has been compliant and polite with staff and other residents. It was also said that Ms Hollaway is making steps towards recovery.
11. An affidavit by Ms Tracey Reynolds dated 26 October 2017 was read by leave after the hearing of the matter. It annexed a number of case notes documenting Ms Hollaway's progress in the residential diversionary program which were more recent than those available at the time of the hearing. The general impression they convey is that she has continued to be compliant and has been participating in various programs and activities. It is also notable that she has expressed quite strongly her wish to have no further contact with her former partner, despite Ms Skene's persistent attempts to communicate with her.

Determination

1. Ms Hollaway has a history of violent offending with (only) one instance of offending that constitutes a "serious violence offence" within the meaning of the Act. The circumstances of the manslaughter and choking offences might be characterised as "unique", as counsel for Ms Hollaway put it. However, there is a consistent theme of the offending occurring in a context of substance abuse, particularly alcohol, in a domestic setting with Ms Hollaway responding with aggression to circumstances involving conflict or a perceived threat. There is significant potential for the impromptu use of a weapon such as a knife in such circumstances. In both instances (as well as other past offences) there was the consistent presence of risk factors that have been identified by the experts.
2. I accept the submission of counsel for Ms Hollaway to the effect that it is a factor militating against making an ESO that, in contrast to early breaches of parole in the past, she has been compliant with the terms of the ISO and the conditions of residence at her current residential program, and that there has been no suggestion that the safety of the community has been compromised since her release on 16 August 2017. I also accept that Ms Hollaway has shown some insight into past symptoms of psychosis; has been medication compliant; and has been agreeable with treatment suggestions. A further positive factor is that she has been co-operative in the assessments carried out by the authors of the various reports. (DWS [45]ff)
3. Whilst accepting these various matters in Ms Hollaway's favour, I am of the view that it is too soon to find the risk has diminished sufficiently given the interrelated primary risk factors of substance use and mental health issues are, at best, only partially treated. (In this respect I have included in my consideration the additional material provided after the hearing.)
4. It is of significance that Ms Hollaway was released on parole twice in the last year, about 6 months and 12 months ago, and on both occasions, with no electronic monitoring in place, she was almost immediately in breach of parole conditions. On the most recent of those occasions she failed to attend the diversionary program, met up with her former partner in Sydney, was at large until her arrest a fortnight later, and was found to be in possession of cannabis. A prompt return to substance abuse also followed soon after earlier occasions of release on parole.
5. The intentions of judges who sentenced Ms Hollaway in 2013 and in 2016 that she should have the benefit of extended periods of parole supervision in order to best address her rehabilitation needs have been thwarted by her breaches of parole on each occasion of release. Absent stringent conditions, such as the current requirement under the interim supervision order for electronic monitoring, Ms Hollaway has demonstrated little or no regard for the need to comply with orders intended to foster her rehabilitation and reduce the risk of further offending.
6. Ms Hollaway has been slow in demonstrating meaningful insight into the difficulties she has had with interpersonal relationships. It is premature to be confident that she has developed the ability to identify and avoid situations of conflict that could give rise to risk. As Mr Ardasinski put it in his supplementary report of 29 September 2017 (at [7(f)]), "a lengthy period of psychological therapy would be necessary to adequately address the myriad needs associated with Ms Hollaway's violence risk".
7. The experts are unanimous as to the high degree of risk Ms Hollaway still poses, and will pose for at least some time into the future.
8. In all of the circumstances I am satisfied to the requisite high degree of probability that there is a risk of Ms Hollaway committing a further serious violence offence if she is not kept under supervision. Mindful of the primary object of the Act to ensure the safety and protection of the community, I am satisfied that such risk must be regarded as unacceptable. The other object of the Act, to encourage an offender such as Ms Hollaway to undertake rehabilitation, would also be served by supervision, and thus further serve the primary object.
9. Counsel for Ms Hollaway reminded me that notwithstanding the findings that might be made, the making of an ESO remains a matter of discretion. I accept that but having come to the conclusion I have just stated I can see no logical basis to decline to make an order.

Duration of supervision

1. The maximum period of an ESO is five years (s 10(1A)(a) of the Act).
2. The State seeks an order for a period of three years from the date of the order whereas it was submitted by counsel for Ms Hollaway that, if an order is to be made, it should be for a shorter period, "in the vicinity of 12 months". (DWS [65])
3. Mr Sheehan expressed the following opinion about the duration of an order (at [118]): "Given the chronicity of Ms Hollaway's problems and the absence of any significant progress, I would anticipate that a supervision order of three to five years would be realistic to overcome the factors that have predisposed her to aggressive behaviours."
4. Dr Ellis' opinion was as follows (at p 16): "From a psychiatric risk management perspective a minimum period of three years supervision is considered reasonable in order to improve function in the community, and refine the appraisal of risk."
5. Dr Ellis explained: "Personality disorders are chronic, relapsing conditions and can be resistant to treatment and rehabilitative efforts. Her comorbid psychiatric conditions of substance use and psychosis impacts upon likely treatment and supervision response. It is most likely that a period of 12 months will be required to consolidate stable independent accommodation, maintain a stable mental state and regular meaningful activity both occupational and social in the community, given the restrictions on persons subject to extended supervision orders. A further 24 months of regular programmed activity, coupled with regular review of medication would be necessary. This period is estimated based on her current mental state, personality disorder and current attitudes to supervision that will be unlikely to change in the short term."
6. The reasoning and conclusions of Mr Sheehan and Dr Ellis are persuasive, although I am mindful that this is a legal question involving competing considerations. Being mindful of the objects of the Act, my assessment is that a period of three years is appropriate.

Conditions of supervision

1. The conditions that may be imposed on an ESO are limited to those that are considered "appropriate" and may include those set out in s 11 of the Act. In determining the conditions it is necessary to be satisfied "having regard to the scope, purpose and objects of the Act that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order": Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 at [53]; see also generally at [47]-[54].
2. The conditions sought by the State were set out in a Schedule to the Summons but some have been refined. I propose to deal with each of those to which there was an objection in turn.

Electronic monitoring

1. Proposed conditions 4 to 6 relate to electronic monitoring. They provide for a requirement for such monitoring, which is to cease after 12 months if there has been no breach of the ESO or any criminal offending. Thereafter, if there is a breach or criminal offending, the requirement may be reinstituted.
2. The objection was to any electronic monitoring. Alternatively, it was contended that it should be for a period shorter than 12 months after which the monitoring ceases absent any breach or offending. It was submitted that it was not clear how electronic monitoring will reduce the risk of commission of a further serious violence offence, particularly given Ms Hollaway's present residence where she is in line of sight of staff.
3. Mr Sheehan supported the inclusion of these conditions as "reasonable and necessary". He acknowledged (as I do) that electronic monitoring is an onerous condition but said, "Ms Hollaway's history of quickly absconding from supervision is compelling". He considered that there was an increased risk of a violent offence if Ms Hollaway is at large and a rapid response to absconding improves the containment of risk.
4. I agree with the opinion of Mr Sheehan. It is not expected that Ms Hollaway will remain where she presently lives, under direct supervision of staff, for the next 12 months. In the affidavit of Ms Andrews of 18 September 2017 it is said that if Ms Hollaway progresses well it is expected that she will exit the present program around the end of November 2017. If more time is required, the program can be extended up to six months. In an affidavit of Mr Jake Randle, Ms Hollaway's current departmental supervising officer, of 6 October 2017 it is said that it is anticipated that she will complete her current program sometime between the end of November 2017 and the end of February 2018. She will not be discharged until suitable accommodation has been identified.
5. In light of her persistent past breaches of parole, I consider it would be important for electronic monitoring to be in place. It would also allow for some flexibility of choice in relation to future accommodation options. Monitoring of Ms Hollaway's whereabouts will support the efficacy of the ESO generally, particularly in the initial period in which Dr Ellis spoke of her ideally gaining some stability in a community setting. However, I am also mindful of the generally positive way in which Ms Hollaway has complied with the requirements of the ISO for a period approaching 3 months now. I am satisfied that the period of 9 months is appropriate.

Schedule of movements

1. Proposed conditions 7 to 10 relate to a schedule of movements. They would require Ms Hollaway, "if directed", to submit a weekly plan for her movements from which she must not deviate. This plan is to be provided three days in advance. Proposed changes to movements must be submitted 24 hours in advance or, if approved, within a shorter period.
2. Counsel for Ms Hollaway submitted that there was no justification for such conditions in this case, in contrast to an understandable justification in the case of a high risk sex offender. Alternatively, it was submitted that less stringent conditions should be imposed, such as a daily rather than weekly plan with variations advised by text message or similar with an hour's notice. It was also submitted that the requirement could be in place for a shorter period and, as with the electronic monitoring, there could be a "sunset clause".
3. Mr Sheehan supported a schedule of movements in that it would enforce a move away from an impulsive spontaneous lifestyle (a risk factor) and towards conscious planning and positive structuring of time.
4. The State supported the inclusion of these conditions because provision of a schedule of movements "provides a structure for the supervision". It was noted that the conditions also provided for flexibility and late changes at the discretion of the supervising officer. It was something that would operate in conjunction with the electronic monitoring so that it would be known whether Ms Hollaway is where she is supposed to be.
5. It is relevant that there are other proposed conditions, to which no objection is taken, that fetter Ms Hollaway's movements and associations (e.g. where she is to live; that she cannot go to places prohibited by her supervising officer; that she cannot go to hotels, bottle shops and the like; and that she cannot associate with certain persons).
6. Essentially for the same reasons that I propose to impose the requirement for electronic monitoring there will be a requirement for the submission of a schedule of movements. However, it will mirror those for the electronic monitoring with a "sunset clause" and will be for a longer period, one of 18 months. The requirement may be in place for shorter period if, pursuant to condition 7, the supervising officer no longer "directs" the submission of a schedule of movements.

Curfew

1. Proposed condition 12 is that Ms Hollaway must be at her approved address between the times specified by her supervising officer. (It was originally in a form that imposed a curfew between 8.00pm and 6.00am.)
2. Mr Sheehan acknowledged that a curfew (in the original form of the condition) "is not a direct risk management strategy but may be seen to reduce late night drinking at a time where supervision is minimal".
3. Counsel for Ms Hollaway submitted that this condition was of no utility and there was no correlation to a reduction of risk. Responding to the proposed condition in its original form, it was submitted that consumption of alcohol and previous offences were not night-time specific.
4. The proposed condition is now prefaced with, "If so directed by the DSO", that is, by the supervising officer. In my view, this is an important discretion in support of the general efficacy of supervision of Ms Hollaway. It can be envisaged in circumstances where there arise concerns about Ms Hollaway's progress with abstinence and with interpersonal relationships that it would be appropriate to require her to remain at home at certain times. The condition will remain.

Surrender of passport

1. Proposed condition 17 requires Ms Hollaway to surrender any passport she may hold. Counsel for the State conceded that there was no specific concern that Ms Hollaway might flee the jurisdiction; it is just a standard condition for high risk offenders to guarantee against that possibility.
2. There is no evidence that Ms Hollaway has a passport, or has ever had one. There is nothing in her history indicating that she has ever travelled overseas, has an interest in doing so, or might have the financial capacity to do so. The condition is irrelevant to risk reduction or management in this case. It will be deleted.

Non-attendance at any place where Ms Hollaway knows that alcohol or drugs are illegally sold

1. Proposed condition 19 requires that Ms Hollaway not attend "any place where she knows alcohol or drugs are illegally sold".
2. Mr Sheehan generally supported the "Place and travel restrictions" conditions (16 to 19). They include in condition 18 that Ms Hollaway must not go to a place if her supervising officer tells her she cannot go there. However, Mr Sheehan considered that proposed condition 19 "seems contentious and difficult to enforce, given that illicit substances are often sold on the street and around community centres".
3. Counsel for Ms Hollaway opposed this condition on the basis that the relevant risk reduction is addressed by proposed condition 23 (a prohibition on possession and use of alcohol and illegal drugs, as well as prescription medication other than as prescribed). It was also submitted that the condition was vague. I agree. If, for example, Ms Hollaway knew that were drugs were being sold at a railway station at night time, it is unclear whether the condition would prohibit her attending that place at any time.
4. The significant concern in this case is Ms Hollaway relapsing in relation to alcohol or drug abuse. Proposed condition 23 adequately deals with that concern. Proposed condition 19 will be deleted.

Employment, finance and education conditions

1. Proposed conditions 20 to 22 would require Ms Hollaway to: 20 make herself available for education, training or participation in a personal development program as directed; 21 not start any job, volunteer work or educational course without approval; and 22 provide information relating to her financial affairs, including income and expenditure, if directed.
2. There was an initial objection to a requirement that Ms Hollaway, if unemployed, enter available employment if and as directed, but that has been deleted. Counsel for Ms Hollaway still maintained an objection to each of the conditions on the basis that, while they might be standard or appropriate for other high risk offenders, they were not linked to any risk concerns or risk reduction in this case.
3. Mr Sheehan expressed a concern about the necessity of proposed condition 21 "unless the employment was in the service of alcohol or as a sex worker". He thought pre-approval of employment was unnecessary.
4. I accept the submissions of counsel for the State that ensuring Ms Hollaway has pro-social relationships, is engaged in pro-social activities, and is not spending money on drugs or alcohol is relevant and important. Proposed conditions 20 and 22 are relevant in these respects. However, I cannot see how a need for prior approval of employment etc promotes these goals. Proposed condition 21 will be amended so as to require Ms Hollaway to inform her supervising officer promptly of her commencing in any such activity. If the activity is regarded as unsuitable (e.g. of the type Mr Sheehan referred to), the supervising officer there are other proposed conditions that could become relevant (e.g. 18, 25, 27).

Not to enter licensed premises without approval

1. Proposed condition 25 provides that Ms Hollaway must not enter any licensed premises without the approval of her supervising officer.
2. The condition and others relating to drugs and alcohol are generally supported by Mr Sheehan as "necessary, reasonable and directly relevant to protecting against potential expressions of violence in Ms Hollaway's case".
3. Counsel for Ms Hollaway submitted that this condition should be amended so as to exclude from its operation cafés and licensed restaurants. It would prevent Ms Hollaway attending, for example, a café to obtain a morning coffee if that café was licensed to sell wine for lunch or dinner.
4. The proposed condition was supported by the State in that it allowed oversight in circumstances where Ms Hollaway has serious issues with alcohol.
5. Given the significant risk of Ms Hollaway relapsing in relation to alcohol, a problem she has had for a long time, requiring the approval of her supervising officer for attendance at a licensed venue of any type is important and should be maintained.

Providing information about intimate relationships

1. Proposed condition 29 would require Ms Hollaway to tell her supervising officer if she starts an intimate relationship with someone in order to allow the officer to consider whether to inform the other person of Ms Hollaway's criminal history.
2. Mr Sheehan supported this condition but suggested it be amended so as to provide that disclosure to the other person be Ms Hollaway's responsibility with the supervising officer's involvement being a last resort.
3. Counsel for Ms Hollaway submitted that Mr Sheehan's recommendation be adopted. Counsel for the State contended that the proposed condition already allowed for Ms Hollaway to inform the other person of her past offending. The rejoinder was that the risk factor identified in this case was offending in a domestic context and there was only the one example of offending against an intimate partner and that was in unique circumstances (discussed earlier).
4. I accept that Mr Sheehan's concern is adequately catered for in the wording of the proposed condition. Having regard to the nature and circumstances of Ms Hollaway's prior violent offending there is sufficient concern about her relapsing in relation to substance abuse (including alcohol) and further offending in a violent way in a domestic setting. A person who is in an intimate relationship with Ms Hollaway is most likely to be involved in such an eventuality. The condition should remain.

Search and seizure conditions

1. Proposed conditions 32 to 36 provide for searches and seizure. They appear to be standard conditions in supervision orders made under the Act.
2. Mr Sheehan considered that these conditions "may have some protective value as they related to enforcing the substance use and weapons" conditions. He perceived that they were "highly invasive" and ran a risk of being counterproductive "in that it may seriously compromise the relationship between Ms Hollaway and her [supervising officer], mimicking gaol life and reducing her capacity to speak freely with supervising staff". He suggested that "such a condition should be used sparingly".
3. Counsel for Ms Hollaway supported Mr Sheehan's recommendation. In relation to proposed condition 35, she submitted that it was not clear how this was relevant to risk reduction. Proposed condition 35 is that Ms Hollaway must allow Corrective Services NSW to search any phone, tablet device, data storage device or computer that she may use.
4. In relation to these conditions generally, counsel for the State responded by referring to some of the notes made by those tasked with supervision of Ms Hollaway under the ISO which indicated that the officers are experienced and have interacted with her with a sympathetic attitude.
5. Proposed conditions 32 to 34 and 36 enabling search and seizure may only be activated if the supervising officer reasonably believes (or suspects) it is necessary to do so for certain purposes. Those purposes are concerned with the safety and welfare of others and with Ms Hollaway's compliance with the ESO. There is sufficient justification for them and they are not opposed. The precondition of reasonable belief or suspicion provides an appropriate safeguard against capricious use.
6. The only justification I can see for proposed condition 35 would be to ensure Ms Hollaway's compliance with the ESO in respect of interpersonal relationships. I perceive there could be relevance in knowing who she is in communication with, for example by way of phone call, text message or social media. In the circumstances of this case (it not being a case of a predatory sex offender for example) searching of the various types of devices mentioned should only be permitted if there is a reasonable belief that it is necessary to do so in order to ensure Ms Hollaway's compliance with the order. This condition should be amended accordingly.

Change of appearance

1. Proposed condition 38 in its original form would have prevented Ms Hollaway from changing her appearance without the approval of her supervising officer. It was met with the quite reasonable objection that it was vague. It has now been amended to prohibit Ms Hollaway, without prior approval, from changing her appearance "to the extent that she cannot be easily recognised". It also provides that if there is doubt about whether a change in appearance would be covered by this condition then Ms Hollaway should consult with her supervising officer.
2. Counsel for the State submitted that such a condition was necessary in light of Ms Hollaway's history of breaching parole, absconding and offending while at large.
3. No submission was made that the condition in its amended form did not adequately address the concern that was raised. The condition as amended will be included.

Medical intervention and treatment

1. Proposed conditions 41 to 46 are concerned in various ways with medical intervention and treatment.
2. Mr Sheehan considered these conditions to be "generally necessary and reasonable" (with a caveat that psychotherapeutic treatment engagement cannot be forced and is best approached through encouragement and motivational interviewing). Requirements to take medication and provision for information sharing between healthcare practitioners and agencies involved in Ms Hollaway's supervision were considered to be important "given the risks associated with psychiatric decompensation and allowing for an integrated approach to case management between disciplines".
3. Counsel for Ms Hollaway contended that condition 43 (a requirement to take all medications that are prescribed) should be prefaced with "with informed consent". Further, the sharing of information between agencies involved in Ms Hollaway's supervision, including her supervising officer and Corrective Services NSW under proposed condition 46 was submitted to be too broad.
4. Condition 43 should remain as is. There is a valid concern about giving Ms Hollaway a free choice as to whether to take medication that is prescribed in the exercise of professional judgment as being necessary to manage her mental health issues.
5. The criticism of proposed condition 46 as being too broad has been adequately addressed by an amendment submitted by counsel for the State after the hearing that limits the sharing of information to "staff of those agencies involved in the administration of the ESO".

Conclusion

1. There will be an order made pursuant to s 5F and s 9(1)(a) of the Act for the Defendant to be subject to a high risk violent offender extended supervision order for a period of three years from the date of the order.
2. The parties are to settle the Schedule of Conditions of such order in accordance with the determinations herein and forward it to my Associate whereupon the formal order will be made in chambers.

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: 08 November 2017