State of New South Wales v Hollaway

Personal Background

1. The defendant is a 35 year old woman who grew up in circumstances of significant deprivation and disadvantage. She was emotionally and physically abused by her stepfather, as well as sexually abused by her stepfather and several other men. At the age of 11 the defendant was sent to live with her biological father after reporting the sexual abuse to her mother. That arrangement was short lived. The defendant's biological father passed away when she was 15 years old.
2. At the age of 13, the defendant was made a ward of the State, staying with her great-grandmother and various foster families until she was 14 years and 9 months. She returned to her mother's home for a few months before seeking supported accommodation with Anglican Care.
3. The defendant's schooling was disrupted due to family relocation, troubled peer relations and learning difficulties. At the age of 15, the defendant became pregnant, however, she suffered a stillbirth at 30 weeks gestation. Following the loss of her child, she became suicidal and was admitted to Bloomfield Psychiatric Hospital in 2004 with an acute stress reaction. She presented to the Dubbo Base Hospital in 2005 with thoughts of self-harm and depression.
4. The defendant developed a cannabis habit around the age of 12 and developed an eating disorder by the age of 13. Her illicit drug use increased following her miscarriage. Around the age of 16, she used heroin regularly before using amphetamines at the age of 17. She then began using OxyContin and buprenorphine which led to her using prescription opiates. She also experimented with crystal methamphetamine, synthetic cannabis, and ecstasy. Her use of alcohol became problematic after meeting her ex-partner in rehabilitation, at the age of 18.
5. The defendant likely meets the diagnostic criteria for a psychotic disorder and has been diagnosed as suffering from a substance use disorder and post-traumatic stress disorder ("PTSD"). There is some question as to whether she also suffers from a borderline personality disorder.
6. As can be discerned from this summary, the defendant has experienced a highly dysfunctional childhood in which she experienced multiple traumas. She developed several mental health conditions and a substance use disorder.
7. The material demonstrates that the defendant's most acute risk situation would be in the context of relationship conflict, when she perceives a threat, in the context of mental health instability and substance abuse. Herein lies the dilemma, perceptively captured in the remarks of Craigie SC DCJ that "[i]n the ordinary course, the urge to have at least the close society if not the intimate relationship of another human being is one of the most human of impulses. In this appellant, given her history it can be the setting of risk." [1]

The Index Offence

1. On 22 October 2012 the defendant pleaded guilty to a charge of manslaughter. The plea of guilty was based on substantial impairment by abnormality of mind pursuant to s 23A of the Crimes Act 1900 (NSW). The Crown accepted that plea of guilty in full satisfaction of the indictment of murder.
2. The defendant was sentenced by Price J (as his Honour then was) to a term of imprisonment with a non-parole period of three years and a balance of term of two years and four months. The non-parole period expired on 9 June 2014, with the additional term expiring on 9 October 2016. In sentencing the defendant, His Honour observed: "I am satisfied on the balance of probabilities that the deceased's conduct in grabbing the offender around the neck and saying that '[he] was going to have [his] way', led her to believe that the deceased intended to sexually assault her. The offender was not only provoked by the deceased, but was acting on the belief at the time of the stabbing that it was necessary to do what she did in order to defend herself. Without the deceased's sexual advances upon the offender, the offence would not have occurred. I take into account these matters in mitigation of the objective seriousness of the offence. However, by her plea of guilty to manslaughter, the offender acknowledged that the stabbing of the deceased was not a reasonable response in the circumstances, as she perceived them to be."
3. His Honour accepted that the defendant was remorseful and concluded that her dysfunctional background was causative of her "…descent into alcohol and drug abuse at an early age." At [34] his Honour said: "Although I accept Ms Loukas' submission that the offender's remorse and acceptance of responsibility for the manslaughter can allow the court some confidence that she has begun the process of addressing her offending behaviour, I am unable to make a positive finding that she is unlikely to re-offend or has good prospects of rehabilitation. Much will depend on the offender's ability to avoid relapsing to alcohol and or drug misuse upon release. Her previous failures to overcome the use of illicit drugs do not encourage an optimistic view being taken."

The Legislative Framework

1. The Act is designed to address the "…almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release": State of New South Wales v Donovan [2015] NSWSC 1254 at [3].
2. The objects of the Act are set out in s 3: 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
3. Section 9(2) of the Act provides that in determining whether or not to make an ESO "the safety of the community must be the paramount consideration". It follows that ESOs are, in their nature, protective and not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; State of New South Wales v Tina Lee (a pseudonym) (Preliminary) [2023] NSWSC 693 at [13].
4. Section 7(3) of the Act requires a preliminary hearing into the application be conducted within 28 days of filing the application. Section 7(4) provides that if following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must make orders appointing the relevant experts to conduct examinations and furnish reports to the Supreme Court (and direct the defendant to attend those examinations). If, on the other hand, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of the order, I must dismiss the application under s 7(5).
5. Section 10A of the Act provides: 10A Interim supervision order The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court - (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
6. Both provisions provide the same threshold, that is, "that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order."
7. Section 5B of the Act provides: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if - (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
8. "Serious offence" is defined in s 4 of the Act as "a serious violence offence". The definition of "serious violence offence" is contained in s 5A, which provides: 5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person - (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to - (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.
9. It follows that in determining whether an ISO should be made, I must determine whether the matters alleged in the supporting documentation would, if proved, justify satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence (as defined) if not kept under supervision under the order. I must be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious violence offence, as opposed to a violence offence that is less than "serious", as contemplated by the Act.

Assessment of risk

1. In determining whether the matters in the supporting documentation would, if proved justify the making of an ESO, I am required to have regard to the factors set out in s 9(3) of the Act, in addition to the safety of the community which, as I have already noted, is the paramount consideration.

The reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination: s 9(3)(b)

1. This being a preliminary hearing, no such persons have yet been appointed.

The results of other assessments by qualified persons: s 9(3)(c)

1. There are two Risk Assessment Reports ("RAR") that have been prepared, one in 2024 and another in 2016.

Risk Assessment Report - 2024

1. Although the defendant declined to be interviewed for the 2024 RAR, a report was prepared by senior psychologist Samuel Ardasinski which refers to the 2016 RAR and the defendant's progress on the ESO. At [30] he observed that: "The above summary of Ms Hollaway's response to supervision since 2017 demonstrates that, after a number of false starts, she appears to have turned a corner in 2023 with regular employment, stable housing and the formation of a social network. Her family did not appear protective however, since there is a shared trauma history within the family unit and many of Ms Hollaway's family members use illicit drugs or have been involved with the criminal justice process."
2. In relation to the defendant's current and previous risk assessments, Mr Ardasinski opined at [40]: "My HCR-20[V3] assessment found Ms Hollaway to currently present a high risk of future violence, with a moderate risk of serious physical harm being perpetrated, and a low risk of imminent violence whilst she is supported through the mechanisms of her ESO, sober, and stably housed."
3. Mr Ardasinski maintained the view that the defendant's most "acute risk situation would be in the context of relationship conflict, when she perceives a threat, amidst a maelstrom of mental health instability and substance use." He concluded at [45]: "The management of risk involves the offender improving their level of functioning in the aforementioned dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors, their ability to manage the overall risk improves. The overall totality of evidence suggests that Ms Hollaway still falls in the High risk category for violent offending, however her risk of serious violence is now assessed to be only moderate since she has demonstrated a number of occasions that she has been able to manage the stresses of community life without resorting to such violence. The main concern remains the likelihood of Ms Hollaway entering into a new relationship which may involve mutual substance abuse, and without the spectre of supervision and the support of professionals, domestic conflict could escalate to serious violence with the right consolation of factors coalescing." (Emphasis in original.)
4. Mr Ardasinski identified the competing considerations which have exercised my mind during the proceedings as follows. If no order is imposed, the "minor" breaches of her ESO, such as sitting on the beach with a new girlfriend and having a beer or two, would not result in her arrest and imprisonment once her ESO expires.
5. On the other hand, there would be no monitoring of Ms Hollaway's behaviour, such that a descent into mental ill-health may go unnoticed by those around her until she decompensates entirely. Additionally, a stressful period in the defendant's life may result in a return to heavy substance use, disinhibiting her within the context of any new relationship, or within the context of her dysfunctional family connections.
6. There will need to be a middle ground if any new ESO is made, in order that Ms Hollaway is able to build a semblance of "normality" in forming any new relationships while still being able to have protective mechanisms tilt into them. For instance, there are well advertised governmental standards for "safe levels of alcohol to consume which could be built into conditions which could continue to prohibit alcohol misuse."
7. Mr Ardasinski considered whether the powers of orders made pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW), may be protective for any new intimate partner. He concluded that powers may be sufficient to protect individuals who are aware of the risks posed by the defendant within her intimate relationships, but they may not be made aware of those risks until it is too late.

Risk Assessment Report - 2016

1. The 2016 RAR described the defendant's primary risk scenarios consistent with that identified in the 2024 RAR: "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."
2. In the context of discussing the defendant's institutional conduct charges (which primarily concern drug use) Mr Ardasinski observed that at [13]: "…While there have been a number of negative case-notes recording problematic behaviours involving aggressive conduct between Ms [Hollaway] and other inmates, it could not be said that her institutional violence would be considered serious - the lack of recorded violent incidents in custody suggests that Ms [Hollaway] has the capacity to manage her aggression in certain situations…"

The 2017 court appointed expert reports

1. Court appointed expert reports were provided by Patrick Sheehan dated 9 September 2017 and Dr Andrew Ellis dated 10 September 2017. Mr Sheehan outlined the defendant's personal background describing it as one of "repeated abuse, trauma and complex/ambivalent attachments to carers." He opined that "her expressions of violence have been mired in the enduring fallout of her traumatic past, where Ms Hollaway unwittingly recreates or exposes herself to high risk situations with other poorly functioning people and escalates aggression, perhaps instinctively seeking to re-assert mastery over past abuses. Her ability to appraise her behaviour is impaired in these situations and the dynamics of victim and perpetrator become confused." He further observed that "Ms Hollaway has only committed one offence meeting the threshold of 'serious violence offence' and this offence was committed during a period of psychosis, now in remission and managed with antipsychotic medication."
2. Mr Sheehan observed that the defendant, in 2017, had few protective factors and considered that her prognosis remained "guarded." Mr Sheehan opined that without intensive supervision, the defendant would relapse quickly to a lifestyle associated with the previous acts of violence. Although he did not express an opinion about whether the defendant's level of risk was "unacceptable" as comprehended by the Act, Mr Sheehan opined that the defendant's chances of achieving positive adjustment in the community are enhanced were she to be subject to a further limited period of supervision, to assist her in creating a stable prosocial lifestyle.
3. Dr Ellis opined that the defendant met the diagnostic criteria for a psychotic disorder, substance use disorder, PTSD and borderline personality disorder. He recommended more detailed testing of the defendant's cognitive and educational function.
4. Dr Ellis noted some of the limitations with current risk assessment techniques in behavioural science predicting whether a particular individual will reoffend with a serious violence offence. Actuarial measures are able to allocate individuals with particular characteristics to risk groups, and those risk groups have been identified as possessing greater or lesser numbers of persons within the group as reoffending. Dr Ellis pointed out that: "The difficulty with this approach is that it does not discriminate between those in a particular risk group who do reoffend and those who do not. There does not appear to be a particular advantage to actuarial scales over structured professional judgement scales."
5. Dr Ellis then went on to identify the relevant facts to an estimation of risk in the defendant's case, concluding: "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 of violent offending that is statistically high in frequency with potential for serious consequences in her specific case, and graded than a theoretical average offender. Specific treatment and supervision would likely reduce this risk."

The results of any statistical or other assessments: s 9(3)(d)

1. The defendant has been assessed using the Violence Risk Scale ("VRS"). In 2016, her score placed her at the lower end of the high risk category. In 2024, her score placed her in the moderate category.

Any report prepared by Corrective Services NSW: s 9(3)(d1):

1. A Risk Management Report ("RMR") dated 14 June 2024 has been prepared by Susan Page. Ms Page observes that overall, the defendant has spent more time in custody since the commencement of her order than in the community. That accords with the observations made below at [56] in respect of the terms of imprisonment imposed upon the defendant for breaches of the ESO.
2. Ms Page notes that in the early years of her supervision, the defendant's response was marred by superficial engagement in alcohol and other drug intervention. However, upon her release to the residential rehabilitation program at Guthrie House on 12 September 2022, the defendant "demonstrated a significant improvement in her attitude towards her ESO supervision" which in turn resulted in a lengthy period of stability and compliance. She successfully completed the residential rehabilitation program in December 2022 and thereafter engaged in an outreach program. The defendant had a period of over nine months of abstinence.
3. The defendant also engaged with a Corrective Services New South Wales ("CSNSW") High Risk Offender ("HRO") psychologist and participated in individual risk management intervention sessions. It is noted that the defendant's HRO psychologist was of the view that the defendant displayed a "shift in her attitude", demonstrating a commitment to abstinence from illicit drug use. For a period, the defendant abstained from illicit substances, maintained stable accommodation, obtained full-time employment, sought meaningful support to manage her family dynamics and engaged with a mentor from the Women's Justice Network.
4. In August 2023, there was a noted regression in the defendant's behaviour which coincided with the deterioration of her relationship with her mentor. The change in behaviour also coincided with the defendant's ongoing health issues that resulted in her presenting to the Emergency Department on multiple occasions. There was a noticeable decline in the defendant's mental health. She was initially resistant to seeking assistance for her mental health conditions but subsequently agreed to re-engage with a CSNSW HRO psychologist.
5. Relevant to this topic, are the Offender Integrated Management System ("OIMS") case notes for the period of 10 January 2020 to 10 August 2024. The defendant is reported to have expressed her desire to "do trauma counselling", notwithstanding her apprehension "knowing it will be difficult". Although the defendant identified several programs she had already completed, she was able to highlight a number of factors that have contributed to her risk including unhealthy relationships, excessive alcohol use and her underlying trauma. It is reported that the defendant had a "good level of insight into her behaviour".
6. The RMR contains a risk management plan and includes recommended conditions in the event that an ISO is made.

Treatment or rehabilitation programs: s 9(3)(e)

1. The defendant has engaged with the Violent Offender Treatment Program ("VOTP") over the course of the ESO. She has also engaged in drug and alcohol counselling from December 2022 onwards, although her engagement has not been entirely consistent.
2. In December 2022 the defendant completed the 12-week Guthrie House residential rehabilitation program. In addition to weekly group meetings, the defendant attended weekly sessions with a Mental Health Worker and an external Alcohol and Other Drugs ("AOD") counsellor. She was proactive in gaining employment, which she identified as a crucial goal when initially developing her case plan. The defendant maintained her tenancy while at Guthrie House and is described as having "demonstrated responsible tenancy maintenance skills."
3. In April 2019 the defendant completed the EQUIPS Addiction Program in custody. In December 2019 she completed the Real Understanding of Self-Help ("RUSH"), EQUIPS Foundation and EQUIPS Addiction Program (for the second time) in custody. In August to November 2017, she initially engaged well at the Miruma Residential Facility, but thereafter ceased engagement. Mr Ardasinski concludes, in the 2024 RAR, that the defendant is "partially treated" as she has participated in a series of programs, addressing her anger management and substance use. However, she is yet to receive intensive treatment in respect of her significant trauma history, which is necessary to "fully" treat her substance use and violence.

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

1. In the 2024 RAR, Mr Ardasinski addresses the risk management strategies if the defendant was subject to another ESO. They include individual risk management intervention provided by a qualified CSNSW psychologist and members of the VOTP team. The defendant's movements would be monitored as would her online presence, to minimise the risk of her "returning to toxic relationships".
2. In the event that no order is imposed, the defendant would be at unconditional liberty and there would be no monitoring of her behaviour, such that a descent into mental ill-health may go unnoticed.

Compliance with obligations including while on release on parole: ss 9(3)(e2), (f) and (g)

1. It is necessary to set out in some detail the circumstances relating to several breaches of the current ESO. The summary is taken from the Joint Statement of Agreed Facts for the Preliminary Hearing: "The defendant has been convicted of breaching the 2017 ESO on a number of occasions: a. Fail to comply with extended/interim supervision order (H 70697085): On 22 August 2018, the defendant submitted to a drug test. Analysis confirmed that amphetamines and methamphetamines were present in the sample. The following day another test was taken and returned the same result. On 30 August 2018, the defendant was charged with fail to comply with extended supervision order or interim supervision order (1 count) pursuant to s 12 of the Act. On 30 October 2018, the defendant was sentenced at Central Local Court to a term of imprisonment of 10 months commencing on 30 August 2018 and expiring on 29 June 2019 with a non-parole period of 7 months which concluded on 29 March 2019. b. Fail to comply with extended/interim supervision order (H71185737): On 11 July 2019, the defendant was located at Bondi Beach drinking with a woman. Each was in possession of a bottle of Corona beer. The defendant submitted to a breath analysis. According to the police facts sheet, upon which the defendant pleaded guilty, this returned a positive reading to alcohol of 0.18mg/100ml. However, in an OIMS case note dated 11 July 2019, DSO Carly McMillan recorded the defendant's BAC result taken at 1:34pm as 0.018 . The defendant was charged on 11 July 2019 with an offence of fail to comply with extended supervision order or interim supervision order pursuant to s 12 of the Act. On 6 August 2019, the defendant was sentenced at Downing Centre District Court to a term of imprisonment of 9 months commencing on 11 July 2019 and concluding on 10 April 2020 with a non-parole period of 6 months which concluded on 10 January 2020. c. Fail to comply with extended/interim supervision order (H 73812058): On 9 January 2020, the defendant was directed not to enter any other occupants' room at her approved accommodation, or to allow any person to enter or stay overnight at her approved accommodation, including her then girlfriend, Ms Hedges. On 11 January 2020, the defendant breached this direction and was charged with an offence of fail to comply with extended supervision order or interim supervision order pursuant to s 12 of the Act. On 16 January 2020, the defendant was sentenced at Mt Druitt Local Court to a term of imprisonment of 12 months. On 6 April 2020 at Parramatta District Court, the defendant was successful in her appeal and her sentence was varied to a period of 6 months and 1 day commencing on 10 January 2020 and concluding on 10 July 2020 with a non-parole period of 3 months concluding on 9 April 2020. d. Fail to comply with extended/interim supervision order (H 144373901): On 9 May 2020, the defendant had been approved to have contact with Ms Hedges. However, the defendant continued her contact with Ms Hedges after the curfew imposed on this activity. She also made admissions to consuming two stubbies of beer and to smoking cannabis. The defendant was charged with an offence of fail to comply with extended supervision order or interim supervision order (3 counts) pursuant to s 12 of the Act. On 14 May 2020, she was sentenced at Windsor Local Court to a period of imprisonment of 1 year, 1 months and 15 days commencing 9 May 2020 and concluding 23 June 2021 with a non-parole period of 10 months concluding 8 March 2021. On 30 July 2020, the defendant successful appealed her sentence and was resentenced at Penrith District Court to a term of imprisonment of 12 months commencing 9 May 2020 and concluding 8 May 2021, with a non-parole period of 8 months. e. Fail to comply with extended/interim supervision order (H 76541010): On 26 January 2021, the defendant was directed to submit to a drug test. The sample confirmed the presence of methamphetamine and amphetamine. On 4 March 2021, the defendant entered a plea of guilty, and was sentenced to a period of imprisonment of 16 months with a non-parole period of 11 months. The defendant's severity appeal was successful and on 18 June 2021, the defendant was resentenced at Parramatta District Court to a term of 6 months and 15 days imprisonment commencing 27 January 2021 and expiring on 10 August 2021. f. Fail to comply with extended/interim supervision order (four counts) (H 85334918): A search was conducted of the defendant's residence. A secondary mobile phone was located, and during the search of this device, it was established that the defendant had accessed social media sites (contrary to a direction by her DSO). A bag of cannabis was also located. The defendant submitted to a drug test, which returned a positive result for cannabis. On 3 March 2002, she was sentenced at Burwood Local Court to a term of imprisonment of 14 months commencing on 15 December 2021 and concluding on 14 February 2023 with a non-parole period of 6 months concluding on 14 June 2022. g. Fail to comply with extended/interim supervision order (two counts) (H 89660732): On July 2022, police searched the defendant's residence and located alcohol and drug paraphernalia. The defendant submitted to a breath test which returned a negative result for alcohol. On 29 July 2022 the defendant submitted a drug test. The sample returned a positive result for cannabis. On 8 December 2022 at Burwood Local Court, the defendant was sentenced for both offences to a term of imprisonment of 8 months to be served by way of an Intensive Correction Order, commencing on 8 December 2022."
2. In the main, the defendant has breached the current ESO by consuming prohibited drugs, drinking alcohol, and being in an unapproved location. While any breach of an ESO is taken very seriously by the courts, the circumstances constituting the breaches disclose the ongoing struggle the defendant has had with prohibited drugs and alcohol resulting from significant trauma. The response to the breaches has been to punish her by imposing relatively long periods of imprisonment.
3. An analysis of the defendant's criminal record reveals that the first breach of the ESO was in January 2018. She was sentenced for that breach and for offences of stalk and intimidate and use carriage service to menace, harass or offend, on 27 April 2018. From that date until present, the defendant has been sentenced for the offence of failing to comply with her ESO on the occasions set out above at [56].
4. A calculation of the period that the defendant has spent in custody in the last six years, referable, either wholly or in part, to terms of imprisonment imposed for breaching the ESO, reveals that the total period is approximately four years. That the defendant has spent a lengthy period in custody for minor breaches of the ESO, primarily related to what is fundamentally a mental health and substance abuse issue, is troubling.
5. As rightly observed in the written submissions filed on behalf of the plaintiff, the defendant's supervision has been interrupted by numerous returns to custody following breaches of the ESO. This pattern of incarceration for what are relatively minor breaches, that do not involve the commission of violent offences, brings into sharp focus the way in which ESO conditions may thwart the progress of an individual, particularly one who has long-standing substance abuse issues and mental health conditions arising from significant trauma.
6. However, the interests of the defendant's liberty and privacy is not relevant to the determination of unacceptable risk. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn"), Gleeson JA noted at [148]: "…It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of 'unacceptable risk' in s 5E(2) of the Act. There is no 'balancing' exercise involved in the courts assessment of the threshold of 'unacceptable risk'."

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere) and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

1. Prior to the index offending, the defendant was convicted for offences involving violence. Two of these offences involve the defendant threatening the victim with a knife. One involved the defendant's stepfather, who she later disclosed had been the perpetrator of physical and sexual abuse.
2. In 2015 the defendant was found guilty by a jury of an offence of attempt to choke a person to render them incapable of resistance. The victim was her then partner, Kaye Skene.
3. In sentencing the defendant, McClintock SC DCJ found that the defendant and the victim had resumed cohabitation despite the existence of an Apprehended Violence Order ("AVO") and that this was "entirely voluntarily." The pair were involved in a fight that arose out of some dispute earlier in the day and at a time when they were both "significantly affected by alcohol." The sentencing judge was satisfied that the relationship between the defendant and the victim was "a torrid and dysfunctional relationship marked by episodes of violence".
4. The defendant was sentenced to 21 months imprisonment, with a non-parole period of 12 months.
5. The defendant was remanded on 5 December 2023 on charges of intimidating her mother, damaging her property, and assaulting her. She was simultaneously charged with breaching her ESO by being in the company of other persons who were drinking (her mother) and possessing or using alcohol herself. The defendant remained bail refused until the matters were heard and determined by the Local Court at Lightning Ridge on 1 and 2 May 2024.
6. There was no prima facie evidence of an assault, and that charge was dismissed at the close of the prosecution case. The defendant was found not guilty of damaging property at the conclusion of the hearing. She was found guilty of intimidating her mother based on "screaming and yelling" only. The Magistrate was not satisfied beyond reasonable doubt that the defendant was armed with a knife or knives, nor that she threatened the victim with such a weapon.
7. In determining the matter, the Magistrate made the following findings: "I find however, that the yelling and screaming in her home, given her advanced age, would have been intimidating towards her, and on the basis of simply the tenure and ongoing screaming of Ms Hollaway I find that would have caused her fear of physical harm and I think that is what really resonates through the three phone calls where it can be heard. There may well have been justification for Ms Hollaway feeling upset, however there was really no need in relation to the ongoing screening or shouting in relation to what occurred, and I think it is out of proportion to what she believed she faced."
8. The reference to the defendant "feeling upset" is a reference to the defendant's account that she had been in an argument with her then partner who was also at the house, and unhappy about the fact that her mother had thrown hot water on her. The defendant was sentenced to "time served".

Would the matters alleged in the documentation (if proved) justify the making of an order?

1. There is no issue, based on the material alleged in the supporting documentation, that the defendant satisfies s 5B(a), namely that she is an offender as defined in s 4A and has served a sentence of imprisonment by way of actual custody for a "serious offence" as defined in ss 4 and 5A.
2. The question for resolution is whether I am satisfied that the matters alleged in the supporting documentation would (if proved) justify the courts satisfaction, to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: ss 5B(d) and 10A.
3. The Court of Appeal considered the meaning of the phrase "a high degree of probability" in Cornwall v The Attorney General for New South Wales [2007] NSWCA 374 at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion 'likely' as explained in TSL."
4. The meaning of "unacceptable risk" for a high-risk offender, was considered by Beazley P (with whom Gleeson JA agreed) in Lynn. The principles were summarised in State of NSW v Tozer [2017] NSWSC 109 at [21] as follows: "The Court of Appeal considered the meaning of "unacceptable risk" for a high risk violent offender, in Lynn v State of NSW [2016] NSWCA 57. Beazley P (with whom Gleeson JA agreed) expressed the following views at [49] ff: (a) the meaning of the phrase "unacceptable risk" raises a question of statutory construction; (b) the determination of the existence of an unacceptable risk is an evaluative task, which requires a normative context in which to be made; (c) the objects of the legislation may be relevant to the meaning to be given to the provisions of the Act, but those objects cannot control clear statutory language; (d) the preferable approach is to give the words their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act; (e) in the context of the Act, the evaluation being made by the Court is "… directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection"; and (f) the risk which must be unacceptable is one of the commission of a serious violent offence, if the individual is not kept under supervision."
5. I have had regard to the various matters set out above. I am satisfied that the matters set out in the supporting documentation would, if proved, justify the Court's satisfaction to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
6. I have made that determination for the following reasons. Firstly, although the current risk assessment as to the commission of serious physical harm is moderate, the defendant remains a high risk of perpetrating future violence.
7. Secondly, the main risk scenario remains the likelihood of the defendant entering into a new relationship which may involve mutual substance abuse and without the spectre of supervision and the support of professionals, domestic conflict could escalate to serious violence.
8. Thirdly, on 12 October 2024 the defendant was admitted to Westmead Hospital, and then transferred to Cumberland Hospital, as an involuntary patient. She reported daily use of cannabis and a deterioration of her mental state over two weeks. On 24 October 2024, the Tribunal determined that the defendant was a mentally ill person. She was not discharged until 8 November 2024. The material demonstrates continued use of an illicit substance and mental health deterioration. The circumstances give rise to the risk scenario identified in the material and the significant risk of a commission of a serious violence offence.
9. Fourthly, at this preliminary stage, the Court has insufficient material to conclude that the defendant can be appropriately supervised and monitored by way other than through an ISO. The prospect of the defendant attempting to manage without some mandatory form of supervision raises a real concern about the prospect of serious violence offending. This is particularly so in light of the defendant's recent admission, as an involuntary patient.

Conditions

1. Section 11(1) of the Act provides that an ISO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services. The conditions should be framed bearing in mind the important principles that were set out by Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44]: "Important principles to be considered in relation to the imposition of conditions are: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83]; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]; (iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]. (vi) conditions must not be unjustifiably onerous or punitive, 'nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision': State of New South Wales v Bugmy [2017] NSWSC 855. (vii) conditions 'must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice': State of New South Wales v Ley Thomas Baker (No 2) at [36]. (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131])."
2. The present case demonstrates the importance of striking a balance between conditions designed to reflect the primary objects in s 3 of the Act as well as having regard to the interests of the defendant's liberty and privacy, on the other. The conditions are protective not punitive.
3. While, the primary object of the Act is to ensure the safety and protection of the community, another object is to encourage an offender to undertake rehabilitation. The defendant's history of non-compliance which has resulted in punishment by way of lengthy terms of imprisonment, has resulted in highly disrupted supervision and has arguably thwarted her rehabilitation and progress.
4. In determining the appropriate conditions, I have had regard to the progress that the defendant has made on occasion. I am not of the view that conditions which are significantly onerous will fulfil the objects set out in s 3 of the Act. Furthermore, a more nuanced and less stringent set of conditions are required to achieve the balance referred to above and to promote, rather than interrupt, the defendant's progress.
5. The defendant has agreed, if an ISO is made, to several conditions and has provided proposed amendments to others. In the main, I will impose the conditions as agreed to, or amended by the defendant. I turn to the particular conditions proposed in the most recently updated schedule, received on 18 November 2024.

Part A: Reporting and Monitoring Obligations

1. Condition 5, which proposes electronic monitoring, is not appropriate and will not be imposed. Electronic monitoring is highly intrusive and potentially risks discouraging the defendant in her progress.
2. Conditions 6 through to 8 relate to the provision of a schedule of movements. These are similarly onerous and unnecessary. These conditions are, in my view, a significant burden, particularly on someone in the position of the defendant with her substance abuse and mental health issues.

Part B: Accommodation

1. Condition 9 is in my view appropriate.
2. Conditions 11 and 12 are not appropriate in my view. They are unnecessarily intrusive on the defendant's privacy and her capacity to take control of her life and have some agency in the interactions she has with others.
3. Condition 13, as amended by the defendant, is appropriate. It facilitates monitoring of who can stay at the defendant's premises overnight but excludes from that group, immediate family members. Once again, the amendment is appropriate to allow the defendant some agency in her interactions with her immediate family.

Part C: Place and Travel Restrictions

1. Condition 15 is not necessary in my view. The defendant's prior history of serious violence relates to occasions where that violence was perpetrated at the home where she was residing. The documentation does not disclose a heightened risk scenario that relates to the defendant attending a particular place, outside of the place where she may reside with an intimate partner.

Part D: Employment, Finance and Education

1. I am not of the view that it is necessary or appropriate to monitor the defendant's financial activities. Although the defendant does have a substance abuse issue, it is not at all clear as to how monitoring her financial records will alert a Departmental Supervising Officer ("DSO") to the defendant's abuse of illicit drugs. This is not a case where there is evidence of discernible sums of money being withdrawn or debited from the defendant's bank account to fund her drug addiction.

Part E: Drugs and Alcohol

1. Condition 17, in its original form, imposes an unnecessary restriction on the defendant's consumption of alcohol. Although the defendant has a long-standing substance abuse issue which is connected to her risk of committing a serious violence offence, a complete prohibition on the consumption of alcohol is an unrealistic expectation.
2. As noted above, Mr Ardasinski has recommended a middle ground, if the defendant is able to build a semblance of "normality" in forming relationships and building protective mechanisms. An example of "a middle ground", recommended by Mr Ardasinski, is to build into the conditions a safe level of alcohol consumption which would continue to regulate alcohol misuse.
3. Condition 17, as amended by the defendant, strikes a better balance to restrict the amount of alcohol consumed on the one hand, and regulating the amount consumed.
4. Condition 20 is associated with, although not wholly related to Condition 17. It prohibits the entry into any licensed premises without the prior approval of a DSO. The prohibition does not mitigate risk because the defendant's substance abuse has primarily taken place within her residence, or that of an intimate partner or family member. Its imposition would, in my view, create an inconsistency in circumstances where condition 17 is imposed but in an amended form.

Part F: Non-Association

1. Condition 22, in its amended form is appropriate. It provides consistency between the non-association condition and condition 13.
2. Having determined that there should be no blanket prohibition to the defendant consuming alcohol, Condition 23 will be imposed insofar as it limits the defendant's association with any person who she knows is consuming or under the influence of illegal drugs. To do otherwise would create a tension between the conditions which may unfairly operate against the defendant.

Part H: Access to the internet and other electronic communication

1. Condition 27 requires the defendant to obey any reasonable direction by a DSO about communications, particularly those using electronic devices, and providing for monitoring of such communications. This is a highly intrusive condition in the present case. The index offence, which is the only offence involving serious violence, was not facilitated by or connected to the use of electronic devices. Furthermore, while there is some history of tension and turbulence in domestic relationships, the use of electronic devices has played a relatively minor role. The intrusive nature of the condition, and the circumstances, militates against its imposition.
2. The remaining conditions are agreed. They are in my view appropriate and are not unduly onerous.

Orders

1. Accordingly, I make the following orders: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. I appoint two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. I direct that the defendant attend those examinations. 1. Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order commencing upon the expiration of the defendant's current Extended Supervision Order. 2. Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days. 3. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment. 4. I order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

SCHEDULE OF CONDITIONS In these conditions: "Commissioner" means Commissioner for Corrective Services. "CSNSW" means Corrective Services New South Wales. "DSO" means Departmental Supervising Officer. "NSWPF" means New South Wales Police Force. "Immediate family members" means mother, siblings, nephews and nieces. Part A: Reporting and Monitoring Obligations 1 You must accept the supervision and guidance of a DSO and obey all reasonable directions of a DSO. 2 You must obey all reasonable directions of a DSO. NOTE: Where a direction may be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. 3 You must truthfully answer questions from a DSO about: (a) where you are or have been; (b) where you are going; (c) who you are with or have been with; (d) what you are doing or have been doing; and (e) the nature of your associations. 4 You must agree to any information relating to your risk, supervision or rehabilitation being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW. Electronic Monitoring 5 Condition not imposed. Schedule of Movements 6 Condition not imposed. 7 Condition not imposed. 8 Condition not imposed. Part B: Accommodation 9 You must live at an address approved by a DSO and notify a DSO of any intention to change your approved address or living arrangements. 10 You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address. 11 Condition not imposed. 12 Condition not imposed. 13 You must not permit any person to stay overnight at your approved address (other than persons who ordinarily reside there) without the prior approval of a DSO other than immediate family members. Part C: Place and Travel Restrictions 14 You must not leave New South Wales without the approval of the Commissioner. 15 Condition not imposed. Part D: Employment, Finance and Education 16 Condition not imposed. Part E: Drugs and Alcohol 17 You must not consume alcohol such that the concentration alcohol in your breath or blood exceeds of 0.05 grams of alcohol in 210 litres of breath or 100 millilitres of blood, without the prior approval of a DSO. 18 You must not possess or use prohibited or prescribed drugs which are not prescribed to you. 19 You must submit to drug and alcohol testing. 20 Condition not imposed. 21 You must attend and participate in programs and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge yourself from such programs and courses without prior approval of a DSO. NOTE: this condition does not apply in response to cannabis use pursuant to a lawful prescription. Part F: Non-Association 22 You must not associate with any person specified by a DSO, other than immediate family members. 23 Without limiting condition 22, you must not associate with any person: (a) Not imposed. (b) who you know is consuming or under the influence of illegal drugs. 24 You must notify a DSO if you start an intimate relationship. You must agree to a DSO disclosing your criminal history to that person. Before any disclosure is made, you will first be given the opportunity to make the disclosure yourself within a timeframe as identified by a DSO. Part G: Weapons 25 You must not possess or use any of the following: (a) a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996; or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998. 26 Without limiting or altering condition [25], you must not possess or use any of the following, without a DSO's prior approval: (a) a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; (b) any other implement made or adapted for use for causing injury to a person; or (c) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. NOTE: Condition [26] does not apply to knives for ordinary domestic use. Part H: Access to the internet and other electronic communication 27 Condition not imposed. Part I: Search and Seizure 28 If the DSO forms a reasonable suspicion that a search is required: (a) to monitor your compliance with these conditions, or (b) for the safety and welfare of any other person, or (c) because the DSO suspects you of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, you must submit to: (a) the search by a DSO (or any other person as directed by the DSO) of: (i) your person or residence; or (ii) any vehicle in which you are travelling or which is under your effective control; or (iii) any computer, electronic or communication device, storage facility, garage, locker or commercial facility in your possession or under your control; and (b) the seizure of any object or device located during the search. Part J: Personal Details and Appearance 29 You must not change your name from "Karyna Hollaway" or "Karyna Haynes" or use any other name without notifying a DSO. 30 You must not, without the prior approval of the DSO, change your appearance to the extent that you cannot be easily recognised. If in doubt whether a change in appearance is covered by this condition you should consult with your DSO. 31 You must let a DSO photograph you, dressed, within one week of the commencement of these conditions and following any significant change to your appearance. 32 If you change the details of any current form of identification or obtain further forms of identification, you must provide a DSO with such details. Part K: Medical Intervention and Treatment 33 You must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction. 34 If directed, you must undergo an assessment for the purposes of a Mental Health Care Plan or Community Treatment Order. 35 You must notify a DSO of the identity and address of any healthcare practitioner that you consult. 36 You must take medications that are prescribed to you by your healthcare practitioners only in the manner prescribed. 37 If you knowingly cease to take medication that has been prescribed to you by your healthcare practitioners, either on a temporary or permanent basis, you must notify the DSO within 24 hours of ceasing to take the medication. 38 You must agree to your treatment and service providers and healthcare practitioners sharing information, including reports on your progress and attendance, and information you have told them, with each other. 38A You must agree to your treatment and service providers and healthcare practitioners sharing reports on your progress with a DSO to the extent that the reports are considered appropriate by your treatment and service providers and healthcare practitioners for your rehabilitation and ongoing management of current and potential risk factors. 39 You must agree to any information obtained under condition [38A] being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW. 40 You must agree to the disclosure of your criminal history to any healthcare professionals that are treating you and support workers where relevant to your identified risk factors.

Endnote

1. Severity Appeal Tcpt, 18 June 2021, p 8. 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: 28 November 2024