State of New South Wales v Hollaway (Final)

Medium Neutral Citation: State of New South Wales v Hollaway (Final) [2025] NSWSC 146

Hearing dates: 4 March 2025

Date of orders: 20 March 2025

Decision date: 20 March 2025

Jurisdiction: Common Law

Before: Fagan J

Decision: (1) The summons is dismissed.
(2) The interim supervision order made by Yehia J on 24 November 2024 and subsequently renewed on 6 February 2025 is discharged forthwith.

Catchwords: CIVIL LAW – high risk offender – application for further extended supervision order – 3 year order in force for a period of 7 years – repeated minor breaches resulting in incarceration – positive drug test – smoking cannabis – consuming half a beer – breaching curfew – being with intimate partner – where no evidence to suggest escalation of risk of violence – where two serious violence offences committed 14 and 10 years ago – counterproductive to rehabilitation and social stability – where no offence of any significant violence for 10 years – where risk of defendant committing a serious violence offence not unacceptable – unreasonable exercise of Community Corrections’ discretion to exercise reasonable discretion in prosecuting breaches of ESO – further ESO of no benefit to community or defendant

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentence Administration) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug (Misuse and Trafficking) Act 1985 (NSW)
Mental Health Act 2007 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited: Lynn v State of New South Wales [2016] NSWCA 57
R v Hollaway [2013] NSWSC 218
R v Hollaway [2016] NSWCCA 166
State of New South Wales v Carr [2014] NSWSC 1348
State of New South Wales v Carr [2020] NSWSC 643
State of New South Wales v Hollaway (No 2) [2017] NSWSC 1517
State of New South Wales v Hollaway [2024] NSWSC 1509
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v McQuilton (Final) [2019] NSWSC 265
State of New South Wales v Pacey (Final) [2015] NSWSC 1983
State of NSW v Scott David Lynn [2015] NSWSC 665
State of New South Wales v Simcock (Final) [2016] NSWSC 1805
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118

Category: Principal judgment

Parties: State of New South Wales (plaintiff)
Karyna Hollaway (defendant)

Representation: Counsel:
R McEwan (plaintiff)
J Wilcox (defendant)
Solicitors:
Crown Solicitor for New South Wales (plaintiff)
Legal Aid NSW (defendant)

File Number(s): 2024/342299

Publication restriction: No

JUDGMENT

1. These proceedings were commenced by summons filed on 12 September 2024. The plaintiff claims an extended supervision order (ESO) in respect of the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW). An amended summons was filed in court on 4 March 2025, incorporating the final form of proposed conditions of supervision pursuant to s 11 of the Act. The duration of the order sought is two years. That would be a renewal of extended supervision under the Act. The defendant was subject to an ESO from 7 November 2017 until 9 January 2025 and is currently subject to an Interim Supervision Order (ISO) pending final determination of the plaintiff’s summons.

Index offence

2. In about April 2011 the defendant committed a serious violence offence within the meaning of s 5A of the Act, namely, the manslaughter of Alan Truran at Hornsby. She was arrested on 10 June 2011 and remanded in custody. The defendant pleaded guilty to manslaughter and was sentenced by Price J to imprisonment for 5 years and 4 months and expiring on 9 October 2016, with a non-parole period of 3 years expiring on 9 June 2014. The gravity of the crime was greatly reduced by a combination of circumstances identified in Price J’s remarks on sentence: R v Hollaway [2013] NSWSC 218.

The previous ESO and current ISO

3. The defendant committed a further serious violence offence (attempted choking) in February 2015 while on parole for the manslaughter. She received a sentence that was made partly cumulative on the balance of the term she was already serving. The expiry date for her overall head sentence became 16 August 2017. From that date she was placed under interim supervision until RA Hulme J made an ESO of 3 years duration, commencing on 7 November 2017: State of New South Wales v Hollaway (No 2) [2017] NSWSC 1517. The conditions of that order included the following:

3 The defendant must follow all reasonable directions by her DSO [Departmental Supervising Officer].

17 The defendant must not permit any person to enter and remain, or to stay overnight, at her approved address, without the prior approval of her DSO.

23 The defendant must not possess or use alcohol or illegal drugs, and she must not possess or use prescription medication other than as prescribed.

24 The defendant must submit to testing for drugs and alcohol as directed by her DSO.

27 The defendant must not associate with people that her DSO tells her not to.

28 The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol.

29 If the defendant starts an intimate relationship with someone, she has to tell her DSO who may want to tell the person about her criminal history.

35 If the DSO reasonably believes that it is necessary to do so in order to ensure the defendants complies with the ESO, she must allow [Corrective Services] to search any phone, tablet device, data storage device or computer that she may use.

4. The conditions also provided in items 4-6 that the defendant must wear electronic monitoring equipment but that this requirement would cease if she should not breach the conditions or commit any other criminal offence for 9 months from commencement of the ESO. The DSO was empowered to reapply the requirement of electronic monitoring if a breach of conditions or any other criminal offence should be committed subsequently. In conditions 7-12 a similar regime was adopted with respect to a condition requiring adherence to periodic schedules of movements. Scheduling would be dispensed with if the defendant should be offence free for 18 months from commencement of the ESO.

5. During the currency of the ESO the defendant was charged under s 12 of the Act on multiple occasions for breach of the conditions of the order. She was also charged with a few additional relatively minor offences. Those prosecutions resulted in prison terms imposed by the Local Court. The ESO was suspended during periods of custody, in accordance with s 10(2) of the Act, and the term of the order was correspondingly extended by force of s 10(1A)(b). The total period of such extensions was 4 years and 2 months. The expiry date as ordered by RA Hulme J was 6 November 2020 but as a result of the extensions it became 9 January 2025. At all times when the defendant has been out of prison over the 7 years and 2 months up to 9 January this year, she has been subject to highly restrictive conditions of extended supervision.

6. On 24 November 2024, pursuant to the summons by which the plaintiff commenced the present proceedings, Yehia J made an ISO of 28 days duration under s 10A of the Act: State of New South Wales v Hollaway [2024] NSWSC 1509. That order took effect upon expiry of RA Hulme J’s ESO and has subsequently been renewed for a further 28 days from 6 February 2025. The conditions of the ISO include the following:

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.

7. The defendant was arrested on 25 February 2025 on a charge of having breached those conditions, in that she tested positive for methamphetamine on 2 February 2025. She was remanded in custody to appear before the Local Court on 8 April 2025. The ISO is, accordingly, suspended and will have a further nine days to run from whenever the defendant is released, unless the ISO is in the meantime discharged.

The issue: “unacceptable risk” in the absence of an ESO

8. The parties agree – and I find – that all procedural requirements for making an ESO have been met and that whether the Court should accede to the plaintiff’s application depends on fulfilment of the prerequisite in s 5B(d) of the Act, as follows:

(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.

9. For the purposes of the present proceedings, “serious offence” means “a serious violence offence”, which is defined in s 5A(1) in the following terms:

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

(a1) an offence under the Crimes Act 1900, section 37(1) or (2), or

(b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a) or (a1).

10. Section 5D makes the following provision about determination of risk:

5D Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

11. Two other provisions of the Act, as follows, bear upon the Court’s approach to determining whether it should be satisfied “to a high degree of probability that the offender poses an unacceptable risk”, as referred to in s 5B(d):

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.

9 Determination of application for extended supervision order

[...]

(2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

12. Section 9(3) of the Act lists a number of categories of information to which the Court is required to have regard in determining whether or not to make an ESO. Later in these reasons I will refer to those categories and to the evidence the Court has received with respect to many of them.

13. The meaning of "unacceptable risk" was considered in Lynn v State of New South Wales [2016] NSWCA 57. When that decision was made s 5E(2) of the Act defined a “high risk violent offender” according to the following criterion, amongst others:

… the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.

14. That test is in effect the same as s 5B(d) of the Act in its present terms. Further, at the date of the Court of Appeal’s decision s 5E(3) was in terms very similar to the current s 5D. The subsequent rearrangement of sections has not altered the statutory context in any way that would alter the meaning of "unacceptable risk" from the interpretation assigned by the Court of Appeal in Lynn v State of New South Wales. The Court there held that a determination of whether there exists an "unacceptable risk" does not require a balance to be struck between the community's interest in protection and the defendant's interest in unrestricted liberty after the expiration of his or her sentence. Beazley P (with whom Gleeson JA agreed) said:

[50] As the respondent pointed out in its submissions, by reference to dictionary definitions, the word "unacceptable" requires context in which, or parameters against which, the "unacceptable" risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is "so far from a required standard, norm expectation, etc as not to be allowed". The Oxford Dictionary defines the word by reference to its antonym "acceptable". Something is "acceptable" if it is "tolerable or allowable, not a cause for concern; within prescribed parameters".

[51] What the court, therefore, must find to be unacceptable is the "risk" that the offender poses "of committing a serious violence offence if … not kept under supervision". The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.

15. With reference to the decision of RA Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118, in which his Honour made observations regarding the objects of the Act specified in s 3(1), Beazley JA said this:

[61] For my part, I do not understand that R A Hulme J, in using the words of the objects clause, intended to mean that "unacceptable risk" is to be determined in the sense of guaranteeing the safety and protection of the community. Rather, as the respondent has submitted the word "ensure" itself has shades of meaning and, in the context of the Act, the evaluation to be made under s 5E(2) 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. As the respondent pointed out, were it otherwise, every risk would be unacceptable.

16. Also in Lynn v State of New South Wales, Basten JA said:

[126] … The nature of the risk he posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders.

17. At first instance, Hidden J said (State of NSW v Scott David Lynn [2015] NSWSC 665 at [68]):

Any assessment of whether a risk is unacceptable turns not only on the likelihood of the risk coming home, but also on the gravity of the consequences if it does. At issue here is the risk to the community of the commission of a serious violence offence.

18. In subsequent cases the degree of risk has often been considered in terms of the two aspects to which his Honour referred: see for example State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43] (Harrison J); State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] (Harrison J); State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J).

19. The determination of whether a risk of future serious violence offending by an individual, if not under supervision pursuant to an order, is "unacceptable" can only be made by reference to a standard. The generality of s 5B(d) necessarily requires the Court to measure the degree of risk that has been established in respect of the defendant against the level that the Court considers must be accepted. In the absence of supervision under an ESO, is the likelihood of the defendant re-offending so high and/or the harm from an offence she may commit so great, that the Court cannot accept the risk and must make an order to abate it? The judgment is to be made using the Court's experience of the incidence of violent crime generally, the range of seriousness of crimes that may be committed and the effects of various forms of offending upon victims and the wider community. The Court recognizes that some degree of risk from individuals who have committed serious violence offences in the past is inescapable and that the public understands and accepts this. The Act is not directed to the Court making ESOs in an endeavour to extinguish all risk.

Counterproductive enforcement of the ESO

20. The defendant has only ever committed four offences involving any significant measure of violence. They were committed between the ages of 17 (on 7 September 2006) and 26 (on 4 February 2015). Each offence involved factors that strongly mitigated the objective seriousness and moral culpability of her conduct. Only two of the matters, the manslaughter in April 2011 and the attempted choking in February 2015, were “serious violence offences” within the meaning of the Act. The defendant is now 36 years old and has committed no act of significant violence in the past 10 years.

21. During an accumulated total of 9 years and 1 month of full-time custody over the 13 years and 8 months between her arrest for the manslaughter in mid 2011 and the present date, the defendant has incurred only one prison disciplinary notation for any kind of violence, namely, unspecified “fight or other physical combat” on 17 November 2018. That incident must have been very minor as it incurred only minimal curtailment of privileges for 14 days.

22. Notwithstanding her violence-free conduct since February 2015, in custody and in the community, the defendant has been prosecuted at the instance of Community Corrections for non-violent breaches of her supervision orders on 10 separate occasions (the tenth being the breach of the current ISO on 2 February 2025). The prosecutions have resulted in 7 sentences of imprisonment, with non-parole periods ranging between 3 and 8 months. Of the 4 years and 2 months by which the ESO has been extended due to custody, 3 years and 4 months was solely for breaches of the order. The balance consisted of sentences for the few offences that she has committed against other provisions, in some cases concurrent with sentences for additional ESO breaches.

23. The risk management report of Ms Page dated 14 June 2024 makes it clear that decisions to lay charges for breach of ESO conditions are taken by Community Corrections officers, who refer matters for prosecution through police officers seconded to the ESO Team within Corrective Services. An annexure to Ms Page’s report describes the administrative structure for ESO enforcement. The evidence does not reveal at what level in the Community Corrections hierarchy decisions about prosecution are taken. Counsel for the plaintiff submitted that “decisions that are made in respect of matters like whether to charge […] are not matters that those instructing me have any control over”. As the Court is not privy to who instructs counsel, apart from the Crown Solicitor, the submission shed no further light. The Court is not concerned to make findings about personal performance of individual officers so it is sufficient for the purposes of the proceedings that I am satisfied that the decision whether or not to prosecute is exercised within Community Corrections, somewhere.

24. The manner in which the discretion to prosecute for breach has been exercised has had very harsh consequences for the defendant. Many of her infractions have been trivial and none have involved an identifiable increase of risk of violence. Further, Community Corrections have shown extraordinary alacrity in identifying fresh breaches after each release from prison. In one case they had her arrested within 24-hours of her last release and in another case within 14 days, each time for breaches that involved no imminent risk of her becoming violent or harming any member of the public. For the whole period of Community Corrections’ administration of the supervision orders there is no evidence that the defendant’s behaviour has ever given cause for a realistic fear that she was becoming violent.

Frequent brief incarceration for lesser offences has never been demonstrated to have a positive impact on future reoffending in general prison populations...

The mental conditions render it difficult for her to learn effectively from mistakes and make considered long term decisions. In this case it has likely impacted upon the prospects of securing stable accommodation and professional services aimed to [scil, because of] multiple moves.

27. This history of how the ESO has been administered is recounted in more detail below. It is material to the question whether a further ESO should now be made, for at least two reasons. First, despite the impediments that Community Corrections have placed on the way of the defendant’s adaptation to life outside prison and the significant additional stress that repeated incarceration has placed upon her, she has not reacted in violence. Of itself that suggests that the risk of her committing any category of violence in the future has subsided to an acceptable level. Secondly, Community Corrections’ prosecutorial approach to enforcing the ESO has been so inimical to rehabilitation that, absent any evidence of a proposed change of policy with respect to this defendant, a further two year ESO would have no utility. On the contrary, a fresh order would most likely give rise to further harassing prosecutions and short terms of imprisonment that may drive the defendant beyond her current despair and may exacerbate whatever residual risk there may be of violent reaction.

The defendant’s early life

28. When sentencing the defendant on 1 March 2013 for manslaughter, Price J gave the following outline of her upbringing and early life experiences. The summary is consistent with the defendant’s history recorded by psychiatric experts and other assessors in evidence before me:

[25] […] [The] offender's background is one of marked childhood and developmental adversity. I accept that she was raised in an atmosphere of domestic violence and subjected to serious emotional neglect, as well as physical and sexual abuse.

[26] It appears that the offender was sexually abused by her mother's partner when she was 11 years old. She described further sexual abuse by an elder brother and a neighbour. At the age of 13, she was made a ward of the State. The offender reported episodes to Dr Nielssen of deliberate self harm from the age of 12 or 13 mainly by cutting her left forearm and that she developed symptoms of an eating disorder. She was admitted to Bloomfield Psychiatric Hospital, Orange, in December 2004 with a diagnosis of "Stress Reaction Disorder", having cut her wrist following a miscarriage. The offender was then 15 years old. She presented to Dubbo Base Hospital in April 2005 with thoughts of self harm and depression.

[27] The offender began drinking alcohol and smoking cannabis from her early teenage years. She reported the onset of abuse of methamphetamine at around the age of 18, which has from that time been her main drug of abuse. She was enrolled in the MERIT program and admitted to the Lyndon Community Rehabilitation facility to stop her drug abuse on two occasions, but relapsed soon afterwards.

[28] Having left school during year eight, the offender has had limited education. She told Dr Nielssen that she attended numerous schools, but did not complete a year at any one school. However, the offender reported that she was literate and attempted a tourism course at TAFE. She had been employed as a ride operator at country shows.

[29] I find that the offender's dysfunctional background was on the balance of probabilities causative of her descent into alcohol and drug abuse at an early age.

29. Facts agreed between the plaintiff and defendant in the present case include the following with respect to the defendant’s history of drug misuse:

The defendant reportedly developed a cannabis habit around the age of 12 developed an eating disorder at the age of 13. Her illicit drug use increased following her miscarriage [at the age of 15, at 30 weeks gestation]. Around the age of 16, she used heroin regularly before using speed at the age of 17. She then began using OxyContin and buprenorphine which led to her using prescription opioids. She also experimented with amphetamines, crystal methamphetamine, synthetic cannabis and ecstasy. Her use of alcohol became problematic after meeting her ex-partner [Ms Skene] in rehab at the age of 18.

Offending and sentences up to the ESO of 7 November 2017

30. On 7 September 2006, at age 17, the defendant committed an offence of maliciously wounding her stepfather. There is very little information before the Court on the present application concerning the wounding offence. RA Hulme J had more. He recorded the following in his judgment published on 7 November 2017 (at [41]):

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.

For that offence the Children’s Court placed the defendant under a probation order for 12 months.

31. On 24 April 2007, at age 18, the defendant committed a common assault, of which RA Hulme J noted these details:

[42] […] 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.

A 12 months supervised bond was imposed in the Local Court at Dubbo.

32. On 27 August 2010, at age 21, according to agreed facts in the present proceedings, the defendant committed an unlawful assault with circumstances of aggravation in Perth Western Australia, for which she was fined $500.

33. On 7 March 2011, when the defendant was 22, she committed an offence of destroying property, namely, the mobile phone of Ms Kaye Skene. The defendant had met Ms Skene in 2007 at a rehabilitation centre and by 2011 they had been intimate for four years. The property damage offence occurred in the context of their torrid domestic relationship. The offence was accompanied by the defendant threatening Ms Skene with a bottle opener which had a small blade, although no separate charge was laid in respect of that threat.

34. In about April 2011, at age 22, the index offence of manslaughter was committed at the home of the deceased in Hornsby. In March 2011 the defendant and Ms Skene moved into the home of the deceased, whom Ms Skene had known for many years. Shortly after moving in, Ms Skene was arrested on outstanding warrants and remanded in custody, leaving the defendant in residence with the deceased alone. Price J accepted the following account given by the defendant to a psychiatrist, Dr O’Dea:

[11] Ms Hollaway told Dr O'Dea that on the day of the alleged offence, approximately 3 weeks after her partner had been detained in custody, she had been playing pool in the back shed with the deceased from approximately 11 am. She told Dr O'Dea that she had been smoking cannabis and drinking alcohol throughout the day.

[12] Ms Hollaway stated that […] at approximately 5pm that evening, “... when we were onto our second bottle of rum ... I had gone to the kitchen ... I'm not sure why ... he's come up from behind me ... he's grabbed me around the neck saying to me ‘you owe me, you owe me, I'm going to have my way’ ... and I thought, that's the end of me, ... to me I felt he was saying he was going to kill me ... to rape me ... I broke free ... grabbed a knife on the table ... nearby a big turbo cooker ... I don't remember what kind of a knife ... I turned around and stabbed him the once ... but he's kept coming and I kept stabbing him ... I got him about 3 times he staggered back and fell off the porch ... and that's where he lay ... I was crying ... frightened ... scared ... the voices were saying - you've killed somebody’ ...”.

35. The reference to “voices” is to auditory hallucinations that were a symptom of the defendant’s psychotic state at the time, established by expert psychiatric evidence. Price J made the following further findings:

[16] The deceased suffered a brain injury in 1969 following which he developed impaired mental stability and judgment and marked hearing loss.

[17] The deceased had a history of sexual disinhibition and impulsive violence. The deceased received a formal warning for kicking a client while employed at the Autistic Association in 2003. His membership of the Asquith Bowling Club was suspended for five years, after the deceased showed a 13 year-old girl his T-shirt "I have a PhD - Pretty Huge Dick" in 2008.

[18] The deceased had a history of offences involving violence. Additionally an assault against Skene by the deceased is recorded in 2000 on the deceased's criminal history.

The honesty and reliability of the offender's account of the offence to Dr O'Dea is supported by the deceased's history of sexual disinhibition and impulsive violence and the pre-existence of her mental illness.

36. There were some differences of opinion amongst the psychiatrists who examined the defendant as to whether her psychosis was drug induced and in remission by the date of the sentence proceedings, or whether it was a symptom of schizophrenia or schizoaffective disorder. There were also differences as to which of the defendant’s faculties were affected, for the purposes of explaining the abnormality of mind that justified reduction of the offence from murder to manslaughter. The differences of medical opinion were of no great significance to Price J’s findings concerning moral culpability, as follows:

It is plain that the onset of the offender's psychotic illness had preceded the commission of the offence. She was admitted to the Royal Perth Hospital from 31 January 2011 to 1 February 2011, with a diagnosis of a drug-induced psychosis after hearing voices. She was assessed at Hornsby Hospital on 16 March 2011 after having cut herself in the context of "hearing voices". [It is an agreed fact in the present proceedings that for this admission the defendant was an involuntary patient]. Dr O'Dea recounts at par 2 that the offender "represented to Hornsby Psychiatric Hospital from 30 March 2011 to 31 March 2011 with a history of declining mental state, characterised by disorganisation, ideas of reference, auditory hallucinations, and paranoid persecutory delusions, in a setting of increased alcohol and cannabis use."

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.

Another matter that mitigates the seriousness of the offence is that it was not planned, but was committed on the spur of the moment, the offender reacting to the exigencies that she found herself in: s 21A(3)(b) Crimes (Sentencing Procedure) Act.

37. From her arrest on 10 June 2011 until her release to parole on 9 June 2014 (3 years) the defendant was in full-time custody serving the non-parole period of the sentence imposed by Price J. From 9 June 2014 until 16 August 2014 (approximately 3 months) the defendant was at liberty subject to parole conditions and she resumed her relationship with Ms Skene, moving into the latter’s apartment.

38. On 16 August 2014 in the early hours of the morning Ms Skene returned to the unit to find that various of her possessions, in particular electronic equipment to a value of $2,500, had been damaged by the defendant. The defendant accused Ms Skene of having “been out with blokes drinking”. Ms Skene called police who arrested the defendant and charged her with destroying or damaging property. She was held without bail and subsequently sentenced to 6 weeks imprisonment, expiring 26 September 2014. An Apprehended Domestic Violence Order (ADVO) was made for the protection of Ms Skene. The defendant’s parole was revoked.

39. From 16 August to 19 December 2014 (4 months) the defendant remained in custody serving her sentence for destroying or damaging property and, concurrently, a further portion of her sentence for manslaughter.

40. From 19 December 2014 to 4 February 2015 (2.5 months) the defendant was out of prison, initially living in accommodation known as Miruna within the grounds of Cessnock Correctional Centre. At that place Corrective Services provided a residential diversionary program for women with substance abuse problems. The defendant left the program on 26 January 2015 and returned to Sydney.

41. On 4 February 2015, from 11:30 am, the defendant drank alcohol with Ms Skene and others at Maroubra before returning to Ms Skene’s unit. The defendant smashed a window by throwing a pot plant through it. A fight commenced between the two women, in which the defendant lost two teeth and during which she held Ms Skene around her neck. Police were called and the defendant was charged with attempted choking contrary to s 37(1) of the Crimes Act 1900 (NSW), damaging property and breach of the ADVO. When subsequently considering a Crown sentence appeal in relation to this matter the Court of Criminal Appeal noted the following (R v Hollaway [2016] NSWCCA 166 at [42]):

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.

42. The defendant was remanded on 4 February 2015 and her parole under Price J’s sentence for the manslaughter was revoked. In due course Judge McClintock SC sentenced her to 1 year and 9 months imprisonment for the attempted choking, commencing on 4 November 2015 (with concurrent sentences for two lesser charges). A non-parole period of 12 months was fixed, to expire on 3 November 2016. The balance of term extended to 3 August 2017. The subsequent Crown sentence appeal was dismissed.

43. From 5 February 2015 to 3 November 2016 (1 year and 9 months) the defendant was in custody serving the balance of her head sentence for the manslaughter (up to 9 October 2016) and then a brief additional period under the largely concurrent sentence that had been imposed by Judge McClintock SC for the attempted choking.

44. From 3 November 2016 to 28 December 2016 the defendant was at liberty on parole. She was given permission by her parole supervisor to travel from Dubbo to Grafton with her mother, Ms Haynes. Deterioration in the relationship during the trip caused the mother to refuse to travel any further with the defendant. The parole officer therefore withdrew her permission to travel and required her to return to Dubbo. She failed to do so immediately and failed to advise of her whereabouts, leading to a recommendation for immediate revocation. The defendant also admitted to having used cannabis, contrary to her parole conditions. She was taken back into custody on 28 December 2016.

45. From 28 December 2016 to 10 May 2017 (4.5 months) the defendant was serving a further part of her head sentence for the attempted choking offence. After a second release to parole on 10 May 2017 she was at liberty for only two weeks before her parole was again revoked, on 25 May 2017. She had failed to attend the diversionary program at Miruna, which was a condition of her release, and instead had stayed the first night after her release with Ms Skene.

46. From 25 May 2017 until 16 August 2017 (approximately 3 months), the defendant was again in prison serving out the balance of her sentence for the attempted choking offence, until its expiry. From 16 August 2017 until 18 January 2018 (5 months) the defendant was at liberty, initially under the constraints of the ISO referred to at [3] above and then from 7 November 2017 under the ESO made by RA Hulme J.

Circumstances current when the ESO of 7 November 2017 was made

47. When RA Hulme J heard the State’s application for an ESO in mid October 2017, the defendant was again residing at Miruna, where she was reported to be “compliant and polite with staff and other residents” and “making steps towards recovery”. Her sentence having expired on 16 August 2017, I infer that she was directed to take part in the Miruna program pursuant to the ISO that was in force from that date.

48. The Court appointed psychiatrist who gave evidence before RA Hulme J in October 2017, Dr Ellis, considered that the defendant had “a longer term psychotic disorder of internal origin such as schizophrenia” and had not merely been suffering from a drug induced psychosis that would resolve over time. By the date of his examination the defendant had been taking antipsychotic medication for six years and Dr Ellis described her as “well treated” in that respect.

49. Dr Ellis also diagnosed a substance use disorder, with concomitant inducement of psychosis, as well as borderline personality disorder and post-traumatic stress disorder related to her personal experiences of abuse. He considered that those diagnoses, combined with additional features, constituted a “high loading of historical risk factors associated with violence in the longer term, compared to the general prison population”. At [62] of his judgment, RA Hulme J summarised the additional features identified by Dr Ellis as historical risk factors, which included the following:

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.

Ms 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.

Failure on previous conditional supervised release.

50. RA Hulme J accepted the following conclusions drawn by Dr Ellis:

[Limited personal community supports and likely problems consistently engaging in treatment and supervision indicate] 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.

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.

51. Mr Sheehan, a court-appointed psychologist, referred to the likelihood that the defendant would likely be unemployed, would not have a stable address, might neglect to take prescribed medication and might experience fluctuations in her mental health that could increase the risk of violence. RA Hulme J accepted the following opinions of Mr Sheehan:

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, that use of illicit substances may also increase [the] risk of violence.

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.

52. His Honour’s conclusion that the defendant posed an unacceptable risk of committing a further serious violence offence if not kept under supervision rested upon circumstances that have materially changed since the ESO was made in accordance with that finding. First, his Honour made the following assessments:

[89] […] 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.

[92] […] 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.

53. With evidence now before the Court that the perceived risk of serious violent offending has not materialised over the 7 years since his Honour gave judgment, it is no longer premature to assess that the risk has diminished to an acceptable level. From the risk management report of Ms Page dated 14 June 2024 and from other sources it is apparent that the defendant has been in personal conflict with a range of people she has encountered, including a neighbour’s son who made aggressive sexual advances, a mentor, co-workers in her employment, family members and an intimate partner. None of that has resulted in physical violence.

54. RA Hulme J’s judgment also included the following:

[93] 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.

[94] […] 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.

55. The experts are no longer unanimous as to a high degree of risk of serious violent offending. Dr Dayalan now says no more than that the defendant poses “a risk” of committing a serious violence offence, the level of which will vary under the influence of her dynamic circumstances in the community. Mr Sheehan classifies the defendant as “within the high risk category of violent offending relative to other adult female offenders” but he agrees with Mr Ardasinski that “she is most at risk of engaging in violence that would fall short of a serious violence offence”. That does not amount to an opinion of high risk with respect to serious violent offending.

56. Finally, with respect to the last sentence of [94], it has become clear in retrospect that supervision under the ESO did not serve to encourage rehabilitation, primarily because of Community Corrections prosecution based approach to enforcement. Future rehabilitation is not at all likely to be encouraged under a further such order.

Defendant’s conduct under the ESO of 7 November 2017

November 2017 – contraband needles in residential diversionary program

57. The Miruna facility fell within the definition of a “place of detention” in s 253A of the Crimes (Sentence Administration) Act 1999 (NSW), with the consequence that it was an offence contrary to s 253D to introduce a syringe into the place. On 9 November 2017 the defendant removed unused syringes from a community health centre in Cessnock, where she attended regularly to receive a dose of opioid substitute, Suboxone. She took the syringes back to Miruna. They were found, still unused, a few days later. The defendant was issued with a Court Attendance Notice for an offence against s 253D. She was later sentenced in the Local Court at Newcastle to an aggregate term of imprisonment of 6 months for the s 253D offence and two further offences committed in January 2018, as described in the following paragraphs.

January 2018 – various offences, 7 months custody

58. From early December 2017 to mid January 2018 the defendant resided at the Empire Hotel, Kurri Kurri. She became a client of Ms CW, a support worker with an organisation that provided help to women with drug problems. During early January 2018 the defendant, while intoxicated, phoned Ms CW and said she was in love with her. This was followed by numerous phone calls over subsequent days, which Ms CW did not answer, culminating in the defendant attending at Ms CW’s home and trying to gain entry. She was on her way to court and, according to Community Corrections’ records, she visited Ms CW to try to obtain a letter of support. The defendant was arrested on 18 January 2018 and held without bail.

59. The defendant subsequently made veiled threats to Ms CW by way of a text message to a third party. She was in due course convicted of using a carriage service to menace or offend and was sentenced to 2 months imprisonment commencing from the day of her arrest. There were further charges of stalking and intimidating and of failing to comply with the ESO (for the consumption of alcohol, contrary to condition 13). For those two offences plus the introduction of syringes to Miruna she received the aggregate sentence of 6 months referred to earlier, commencing 17 February 2018. The overall effective term was 7 months and she was released to parole on 16 August 2018.

August 2018 – 14 days liberty – 7 months custody for positive drug test

60. On 22 and 23 August 2018, when the defendant had been at liberty for less than a week, Community Corrections officers submitted her to drug testing. Amphetamines and methamphetamines were present in both samples. On 30 August 2018, she was arrested by police and charged under s 12 of the Act for failing to comply with the ESO (condition 23).

61. There is no evidence that the defendant’s use of the drug at about 22-23 August 2018 was associated with erratic, threatening or otherwise concerning behaviour on her part. The Court is aware that methamphetamine induces in many users a state of high agitation and inclination to violence. In other users it does not. There is no evidence before the Court that up to August 2018, or at any time since, Community Corrections officers have witnessed this drug causing the defendant to become elevated or threatening. Its use was prohibited under condition 23 but it is not apparent why Community Corrections thought that having the defendant arrested and charged, rather than warning her, would be helpful to any purpose. Mr Sheehan’s current report to the Court acknowledges that the defendant’s use of methamphetamine has not been consistent.

62. The circumstances of laying a charge when the defendant had only been out of prison for 14 days were very similar to those of another prosecution two and a half years later. On 26 January 2021, Community Corrections obtained a positive test result for methamphetamine when the defendant was only 18 days out of prison, with respect to which Judge Craigie SC said:

[She] could at the time barely be described as having retained her feet, let alone psychological balance, after her last exposure to imprisonment.

[See [87] below].

63. The defendant was on remand from 30 August 2018 and was sentenced at Central Local Court to 10 months imprisonment commencing from her arrest, with a non-parole period of 7 months. Mr Ardasinski’s risk assessment report of 6 May 2024 notes that as a result of this period of imprisonment the defendant lost her public housing, which was occupied by a squatter in her absence, and she lost all her personal belongings. Her non-parole period ended on 29 March 2019 and she was released to parole that day. She was obliged to take up temporary boarding house accommodation in Dulwich Hill. There were allegations of threatening behaviour by the defendant towards people in her shared accommodation during the first half of 2019. No charge was laid.

July 2019 – after 3½ months liberty, 6 months non-parole for half a beer at Bondi

64. On 11 July 2019 at about 1:30 pm, the defendant was on Bondi Beach with Ms Hedges, an intimate partner whom the defendant had met very recently. Each was in possession of a bottle of Corona beer. At 1:34 pm police and an accompanying Community Corrections officer observed the defendant. The Corrections officer required her to undergo a breath analysis, which produced a positive reading of .018mg/100ml (as agreed by the parties, despite conflicting evidence as to the blood alcohol content in other records). The defendant was immediately arrested and charged with failing to comply with the ESO (condition 23).

65. There is no evidence that Community Corrections had any basis for believing that the defendant’s minimal consumption of alcohol in a public place in company with Ms Hedges on this occasion signalled any escalation of risk of violence. With respect to alcohol use generally, Mr Sheehan noted the following in his report of 9 February 2025:

Her drinking has been sporadic over the past decade. She used alcohol on several occasions during her ESO, but there is no evidence that she has returned to habitual alcohol use.

66. There is no suggestion that the behaviour of either of the two women at Bondi was disorderly, let alone threatening. It is apparent that Community Corrections tracked the defendant down using the electronic monitor that she was required to wear at that time. The attendance with police indicates an expectation of making an arrest. Consumption of alcohol was in breach of the order, however, for the minimal infringement detected, surely a warning would have sufficed. Community Corrections officers were responsible under the Act and the ESO for supervising the defendant and encouraging her rehabilitation. The decision to refer this inconsequential infraction for prosecution seems to me to have been unreasonable.

67. The defendant was remanded in custody from her arrest and less than a week later she was sentenced at Waverley Court to 9 months imprisonment commencing on 11 July 2019, with a non-parole period of 6 months concluding on 10 January 2020. That penalty appears manifestly excessive in all circumstances of which this Court is aware but a severity appeal to the District Court was dismissed. The defendant was released to parole on 10 January 2020.

January 2020 – after half a day’s liberty, 3 months non-parole for being with Ms Hedges

68. On 9 January 2020, the day before her release, the defendant was directed by her DSO not to enter any other occupant’s room at the approved accommodation where she would be residing, the Voyager Motel at Minchinbury, and not to allow any person to enter or stay overnight at that accommodation. That direction was aimed at Ms Hedges, with whom the defendant had just struck up a relationship when she was arrested at Bondi 6 months before. There is no evidence before the Court to indicate that an intimate association between the two women involved imminent risk of violence by the defendant. I have no evidence of what, if anything, Community Corrections knew about Ms Hedges. I infer that the DSO thought any intimate relationship would carry a risk of turning sour and degenerating into conflict and violence. The general discretion to give directions to the defendant under condition 3 used to impose restrictions for the apparent purpose of making it unworkable for the defendant to form an intimate relationship. So far as this was intended to forestall possible elevation of risk of conflict, that possibility was speculative and the measure adopted was unreasonable.

69. Following the defendant’s release on 10 January 2020, at 10:05 pm that evening three Community Corrections officers made “an unannounced field visit” to the defendant’s accommodation. They tested her for alcohol, producing a negative reading. The officers left the motel but then returned at 11:30 pm for another “unannounced field visit”, supported by two police officers. It was ascertained that the defendant and a second person were in a room other than that assigned to the defendant. She failed to open door when directed. Additional police in four vehicles, including members of the Public Order and Riot Squad attended. That was an astonishing overreaction. It is not apparent that the Corrections officers or the two police officers who were already at the scene had any reason for thinking that the two women together in the hotel room posed any threat of violence, let alone one that could not be managed by two police officers.

70. The defendant eventually opened the door. Ms Hedges was in the room with her. As the defendant was taken from the room, Ms Hedges said to the Community Corrections officers, “You are not giving us a fair go”. I agree.

71. The defendant was arrested and charged with failing to comply with the ESO. The raid and prosecution were founded upon the DSO’s direction designed, or at least calculated, to keep the defendant and her girlfriend apart – for which I can find no rationale. The decision to prosecute, rather than to warn, was unreasonable in circumstances where Community Corrections had not allowed any opportunity to see how the relationship might develop. In the volumes of materials with which the Court has been deluged in this proceeding, I can find no evidence of any consideration by the DSO of point for or against the precipitate laying of this charge, less than 24 hours after the defendant’s release from 6 months imprisonment. Counsel for the plaintiff has not directed the Court’s attention to any record of such deliberation.

May 2020 – after 1 month of liberty, 8 months non-parole for drinking beer, smoking cannabis, being with Ms Hedges

73. On 9 May 2020 the defendant met with Ms Hedges, pursuant to approval granted shortly beforehand by the DSO, subject to a curfew expiring at 6:00 pm. As with previous constraints upon contact with Ms Hedges, I have not been able to identify any reason for the curfew.

74. At 7:45 pm on 9 May 2020 Corrections officers went to the defendant’s address and formed a suspicion that Ms Hedges was still there. They summoned police officers who arrived at 8:45 pm. Ms Hedges was present in the accommodation. The defendant admitted to having consumed two stubbies of beer and having smoked cannabis. She was arrested and charged with three counts of failing to comply with the ESO (conditions 3, 23 and 28).

75. By this date, the two women had only known each other for 10 months, during 9 of which they had been kept apart by the nearly consecutive sentences of 6 months and 3 months that had resulted from Community Corrections’ prosecutions. There is no evidence that any observations or intelligence had been accumulated since January 2020 that would have made it any more reasonable in May than it had been in January for the DSO to prohibit the defendant from being with Ms Hedges during the evening or to charge her when that direction was not adhered to. There is no record that conflict had developed or that Corrections had any ground for a belief that the relationship was deteriorating towards violence.

76. It is not known over what period the two stubbies of beer had been consumed. Mr Sheehan reports that the defendant was “thought to appear visibly intoxicated”, a tentative assessment that certainly does not bespeak alcohol fuelled aggression or violent disposition. There is no evidence that smoking cannabis had ever caused the defendant to become violent during the currency of the year so or that Community Corrections had ever observed or become aware of any connection between cannabis intoxication and elevated, aggressive conduct on the defendant’s part. She had used cannabis on the day of the manslaughter 9 years before but its significance in that event was uncertain given her alcohol intoxication and florid psychosis at the time.

77. Of course, the defendant’s conduct involved breaches of the ESO in the respects charged. However, the question whether to prosecute, halfway through the third year of operation of the order, when no violence had occurred in that period, should surely have been influenced by consideration of whether laying a charge would be material to averting risk or would be more likely to derail the defendant’s rehabilitation.

78. I do not see how laying the three charges on this occasion contributed anything towards supervision of the defendant under the ESO, or ensuring the safety and protection of the community, or encouraging the defendant to undertake rehabilitation, or promoting future compliance with the ESO.

79. From her arrest the defendant was placed on remand. She was in due course sentenced at Windsor Local Court to imprisonment for 1 year, 1 month and 15 days commencing from her arrest, with a non-parole period of 10 months concluding 8 March 2021. On appeal to the District Court at Penrith that was reduced to 12 months imprisonment with a non-parole period of 8 months.

January 2021 – after 18 days liberty, 6½ months non-parole for positive drug test

84. 18 days later, on 26 January 2021, the defendant was drug tested by Community Corrections officers. The sample was positive for methamphetamine. The defendant was arrested on 27 January 2021 and charged with failing to comply with the ESO (condition 23). After five weeks on remand she pleaded guilty in the Local Court at Blacktown and was sentenced to 16 months imprisonment with a non-parole period of 11 months. On appeal to the District Court at Parramatta that was reduced by Judge Craigie SC to a fixed term of 6 months and 15 days imprisonment expiring on 10 August 2021.

85. By 26 January 2021 Community Corrections officers were well aware that the defendant had not committed any act of violence for six years and that in the whole period of operation of the ESO there had been no observation of methamphetamine use causing escalation of risk of violence. Once again, the decision to prosecute was not informed by any supportable perception of increased risk associated with the infraction charged. Coming so close after the last term of imprisonment, further prosecution was demonstrably inconsistent with rehabilitation. Mr Ardasinski’s report records that, at the date of this charge, “There were allegations she was contacting [Ms Hedges] via Facebook”. In light of the whole record of Community Corrections’ conduct towards the defendant. I infer that the decision to prosecute for the drug test may have been influenced by the extraneous consideration that imprisonment would pre-empt further contact with Ms Hedges.

86. Ms Hollaway was fortunate to be represented in her appeal to the District Court by Mr Fernandez of counsel. He diligently tendered and explained to that court the history of repeated prosecution of the defendant for breach of the ESO. In turn, Judge Craigie SC reviewed the material thoroughly. His Honour’s carefully considered reasons for reducing the sentence to a fixed term of 6 months and 15 days include the following:

It has been the difficult task of the extended supervision order team to manage the stresses between the factors of risk and the potential for the appellant's state to be aggravated by the frustration that must naturally arise when any adult individual has their day to day life, as is necessary, constrained as is the case under the order.

[…]

There has been implicit in the appellant's case, not complaint but on her behalf some questioning of an apparent over willingness to use the instruments of the criminal law to meet what are indeed offences where a breach has been committed by the appellant.

[…]

It is quite clear that the ESO Manager […] and her team take their responsibilities very seriously. […] I would not suggest that the team as a result of their appreciation of their responsibilities has adopted a zero tolerance policy, but it is otherwise quite clear that the threshold for action is quite a low one.

[Emphasis added].

87. His Honour recited the breaches of ESO on 22 and 23 August 2018 (positive drug result for methamphetamine), 11 July 2019 (half a bottle of beer at Bondi), 10 January 2020 (in company with Ms Hedges) and 9 May 2020 (being with Ms Hedges, drinking two stubbies of beer and testing positive for cannabis). His Honour continued as follows:

It is to be noted that there has been some escalation in the severity of the sentences imposed. Against that, in particular as regards the last offence, there has been diminution in the level of seriousness of the bare facts of the offending.

[Emphasis added].

88. His Honour quoted the passage from Dr EIlis' report of 1 November 2020 that has been set out at [26] above, concerning the inefficacy of “frequent brief incarceration for lesser offences” and the disruption that such a pattern of incarceration would cause to stabilisation of the defendant’s accommodation and access to services. His Honour continued:

The appellant has been in custody for 34 out of the now past 42 months and it has not been because she has committed further violent offences. It has been because she has committed repeatedly breaches of orders of conditions attached to an order to protect the community against the contingency that she might commit such further offences.

[…]

It is appropriate that the appellant be under restraints in her behaviour. It is appropriate that she be a person who does not drink, does not have access to alcohol and in particular does not have access to any illicit drug. It is the case that other members of the community might be free to do many of the things that the appellant has done and commit no criminal offence. That is because they are not subject to a regime of necessary restriction that has been created for her. Those factors are all plain justifications for sanctions to be activated against the appellant where required to meet a breach. However, they do need in my view more careful consideration of whether the sanctions should almost as a matter of course involve police action. Where police action is required in the judgement of those whose burden it is to exercise the responsibility, as I am sure they do with expertise and commitment, they really do need to consider whether, even if police are involved they should press to bring the matter before a Court. If the matter is brought before the Court it should call for a proportionate response.

[The breach under consideration, testing positive to methamphetamine 18 days after most recent release from prison on 8 January 2021] occurred in the setting that the appellant could at the time barely be described as having retained her feet, let alone psychological balance, after her last exposure to imprisonment.

[…]

I will shortly make orders that will see the appellant at liberty in a relatively short period. That is my response to what I regard as the need for proportionate punishment. It will still entail a term of imprisonment. It is my hope that, with the combination of the appellant's present attitude and perhaps a somewhat more nuanced approach to any indicated breach by her in the future, the revolving door will stop spinning for her, because if ever there was a custodial revolving door to no apparent [effect] it is in the case of this appellant.

[Emphasis added].

89. The defendant was released pursuant to his Honour’s substituted 6½ month fixed term on 10 August 2021.

December 2021 – after 4 months liberty, 6 months non-parole for having a second phone, using social media, using cannabis

90. On 8 December 2021 a search of the defendant’s residence was conducted by Community Corrections officers exercising powers conferred on the DSO under condition 32 of the ESO. A second mobile phone was located, contrary to a direction from the DSO that she should have only one. There was an electronic record on the second phone that the defendant had accessed social media sites, contrary to another direction by the DSO. A bag containing 4 g of cannabis was located. The defendant submitted to a drug test, which returned a positive result for cannabis. She was arrested on 15 December 2021, charged with four counts of breaching her ESO (conditions 3 and 23) and remanded in custody.

91. Presumably the DSO’s direction not to use social media was intended to restrict the defendant’s opportunities for forming intimate relationships and to afford the DSO an opportunity to instruct her, pursuant to condition 27, not to associate with a person who might otherwise become an intimate partner. I infer that the limitation to one phone was for the purpose of enabling the DSO to monitor compliance with the social media ban. Again, technically, breaches of these directions occurred on 8 December 2021. However, significant detriment to rehabilitation and to the defendant’s cooperation in her ongoing supervision would inevitably follow from her return to prison on this basis. There is no evidence that her use of the second phone or her access to social media had in fact led to the formation of any undesirable association or to any increase in risk of violence. That was an overwhelming consideration against laying the first two charges.

92. As for the charges of possessing and testing positive for cannabis, I have referred at [76] above to the absence of demonstrated connection between the defendant’s use of cannabis and any increase in aggression or tendency to violence. Nothing had changed in that respect by December 2021.

93. After 10 weeks on remand the defendant was sentenced at Burwood Local Court to 14 months imprisonment commencing from the day of her arrest, with a non-parole period of 6 months concluding on 14 June 2022.

July 2022 – after 5 weeks liberty, charged with breaches for half a can of bourbon and Coca-Cola, positive drug result for cannabis, possession of cannabis

Guthrie House rehabilitation on bail – then 8 months Intensive Correction Order

94. On 22 July 2022 Community Corrections officers accompanied by police from the ESO Investigation Team attended the defendant’s residence and located a half empty can of bourbon and Coca-Cola. A breath test returned a negative result for alcohol, notwithstanding which she was charged with breach of the ESO on account of being in possession of the half can. The defendant submitted to a drug test, which returned a positive result for cannabis. She was charged with a breach of the order for having used the drug and for having some in her possession. The defendant was arrested on 29 July 2022 and charges were laid for three breaches in all.

95. I have already stated reasons for my view that prosecuting the defendant for non-compliance with the ESO in relation to cannabis was unnecessary to any purpose of supervision and was counter-productive. As for the half can of premixed bourbon and Coca-Cola, on the evidence available to the Court in the present proceedings it appears absurd and bordering on an abuse for Community Corrections to have prosecuted that technical breach. It occurred 4 years and 8 months after the ESO had commenced and more than 7 years after the defendant’s last offence of violence. It was of no consequence to anything within Community Corrections’ sphere of responsibility concerning the defendant.

96. She was remanded in custody from 29 July 2022 for six weeks until bail was granted on 12 September 2022. It was a condition of bail that she undertake residential drug and alcohol rehabilitation at Guthrie House for three months, which she completed successfully and with a positive report from her caseworker within the organisation. On 8 December 2022 at Burwood Local Court the defendant was sentenced for the three offences to 8 months imprisonment to be served by way of an Intensive Correction Order, expiring on 7 August 2023.

December 2023 – after 4 months liberty, 5 months in custody for “screaming and yelling”

97. On 4 December 2023 the defendant was at Lightning Ridge staying with her mother, Ms Naomi Haynes, pursuant to approval granted by the DSO. Ms Haynes’ male partner was also present. At 11:42 pm Ms Haynes contacted police stationed at Walgett and alleged that the defendant was being verbally and physically aggressive. Police attended and arrested the defendant. She was removed to Walgett and charged with stalking and intimidating. The defendant was remanded until the charges could be heard at Lightning Ridge on 1 and 2 May 2024, when Magistrate Toose found the charge of stalking and intimidating proved only in the particular of “screaming and yelling”. The defendant was sentenced to time served, which was three days short of 5 months. She was discharged from custody on 2 May 2024.

98. The defendant was also charged with common assault, in respect of which Magistrate Toose found no prima facie case, and destroying or damaging property, which was not proved to her Honour’s satisfaction. Two counts of breaching the ESO were charged arising out of the same incident. One of those counts, for associating with people who were consuming or under the influence of alcohol, was withdrawn at the commencement of the hearing. The other count, for using alcohol, was dismissed upon the Magistrate not being satisfied beyond reasonable doubt.

October 2024 – involuntary admission as a mental patient – charge of false report to police

99. On 9, 11 and 12 October 2024 the defendant made repeated Triple-0 emergency calls claiming that a woman was being dragged from a motor vehicle into the garage of a property near her home in Auburn. When police attended in response to the last of those calls on 12 October 2024 they found no basis for the defendant’s claims and assessed her as being mentally disturbed. She was apprehended pursuant to s 22 of the Mental Health Act 2007 (NSW) and conveyed to Westmead Hospital. From there she was shortly afterwards taken to Cumberland Hospital as an involuntary patient.

100. On 13 December 2024 police charged the defendant with falsely reporting the occurrence of an event calling for investigation. The charge is next listed before Blacktown Local Court on 8 April 2025.

101. Up to the date of her involuntary admission the defendant was regularly taking Quetiapine/Seroquel, an antipsychotic medication commonly used in the treatment of schizophrenia. She claimed that she was compliant with self administration of the drug in accordance with her general practitioner’s prescription. The defendant also had by that time a prescription for cannabis, which she used regularly. At Cumberland Hospital the defendant was assessed and treated by Dr Narayan, consultant psychiatrist, and Dr Kelly, psychiatric registrar. The following is recorded with respect to her state upon admission:

[She was] found to be suffering a psychotic relapse of schizophrenia. She was guarded, distressed and expressed fixed firm delusions relating to the auditory hallucinations she was experiencing. […] She displayed poor insight into her situation despite acknowledging that she did have schizophrenia and had consumed cannabis recently. She expressed persecutory delusions that there is a cover-up by the police occurring regarding the “crime she heard” given she felt the incident did occur.

102. The treating doctors commenced the defendant on a twice-daily oral dose of Clopixol, another antipsychotic. There was initially minimal improvement. The defendant displayed agitation and aggression on the ward requiring additional antipsychotic and benzodiazepine medications as needed. The doctors assessed her illness as treatment resistant and applied to the Mental Health Tribunal for a three month involuntary patient order pursuant to s 35(5)(c) of the Mental Health Act. Such an order was made on 24 October 2024, with effect until 16 January 2025 unless earlier discharged.

103. The defendant was then administered an injection of Clopixol Acuphase, which is indicated for the treatment of acute psychotic episodes. That showed “significant benefit in mental state improvement” and on 28 October 2024 the defendant was transitioned to Clopixol Depot injection, to be repeated at intervals of two weeks. Her mental state stabilised further up to 8 November 2024 when she was considered fit for discharge.

104. Dr Kelly drew the following conclusion from information provided to him by Corrective Services officers:

Collateral history from the ESO team paints a picture of largely untreated schizophrenia due to excessively tight parole conditions.

105. The “excessively tight” conditions referred to must be those of the ESO. There is no clear evidence before the Court either to confirm or to refute the defendant’s claim that she had complied with her general practitioner’s directions regarding self administration of the oral medication Quetiapine/Seroquel in the lead up to her involuntary admission.

106. There is no evidence before the Court to establish whether or not the defendant’s regular use of Quetiapine/Seroquel, or any other anti-psychotic that she may have been prescribed from time to time, has been intermittently interrupted during her periods of imprisonment. It is the Court’s experience that all such medications are usually stopped upon reception of an inmate into the prison system and cannot be resumed until Justice Health personnel have determined whether to authorise continued use of the prescribed drug. It is generally understood by medical practitioners that interruption and resumption of medications of this kind can have deleterious effects upon the management of psychiatric conditions and can give rise to acute symptoms during withdrawal.

107. Dr Kelly was also told the following by Corrective Services officers:

They feel she frequently becomes physically sick and vomits for days after drinking alcohol, resulting in her oral medications [being] ineffective. Due to her risk profile the treating team is of the view a depo [injection] would be the most appropriate treatment option before discharge could be considered.

108. The defendant disputes that consumption of alcohol played any part in the diminished efficacy of her regular Quetiapine/Seroquel dose during the week prior to her admission hospital. She informed me during the hearing, by way of an unsworn assertion, that the problem was a bacterial infection in her stomach. There is no evidence-based medical opinion before the Court to establish or refute either her explanation or that of the Corrective Services officers. However, it is clear that the defendant’s usual orally ingested medication did not provide effective management of her schizophrenia during early October 2024.

109. Following discharge on 8 November 2024 the defendant was unwilling to have her next Clopixol Depot injection, which was due on 11 November 2024. If the defendant should fail adequately to adhere to her regime of oral medication and if her schizophrenia should cease to be adequately controlled, then any “medical practitioner who is familiar with the clinical history” of the defendant could apply to the Mental Health Tribunal for a community treatment order under Ch 3 Pt 3 of the Mental Health Act. Such an order would facilitate involuntary administration of Clopixol Depot injections: see s 51(3) of the Mental Health Act. Pursuant to s 53 of that Act, the Tribunal would make a community treatment order if satisfied of the following matters:

(a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and

(b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and

(c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment.

January 2025 – altercation with Ms Haynes

110. On 20 January 2025 the defendant made an emergency call for attendance of police at her home, reporting conflict with her mother, Ms Haynes. Police attended and found the two women outside the address. They were separated. There was no violence, no threat of violence and no weapon. No charge was laid against anyone.

February 2025 – charged and bail refused for breach of ISO – positive drug test

111. On 2 February 2025, when Yehia J’s ISO had come into effect, Community Corrections officers attended the defendant’s residence and obtained from her a saliva sample for testing. It is alleged that she endeavoured to avoid providing the sample by pretending that she was unable to produce saliva. An analysis result was returned on 7 February 2025, positive for methylamphetamine. Police officers in the ESO Investigations Team attended the defendant’s residence and her place of work at Flemington Markets on 7 February 2025 for the purpose of arresting her but she was not there. A Court Attendance Notice was thereafter filed at Blacktown Local Court for one count of breaching the ISO (condition 18). A warrant was issued and was executed at Lightning Ridge on 25 February 2025. As mentioned earlier in these reasons, the defendant has been remanded in custody from that date to 8 April 2025, the same date as for the charge in respect of her false report to police on 12 October 2024, when she was psychotic.

112. As at 2 February 2025 there had still been no offence of violence committed by the defendant since the attempted choking of February 2015. Community Corrections still had not had any experience of methamphetamine use causing the defendant to become aggressive or to threaten violence, so far as the evidence before the Court shows.

Current expert opinions on risk (s 9(3)(b))

Dr Dayalan

113. Pursuant to preliminary orders made by Yehia J under s 7(4) of the Act, Dr Dayalan, psychiatrist, furnished to the Court a report dated 10 February 2025 and a supplementary report dated 17 February 2025. He has diagnosed the following mental illnesses:

schizophrenia

substance use disorder – alcohol, cannabis and opiates

complex post traumatic stress disorder

borderline personality disorder

114. The doctor’s conclusions with respect to risk of further violent offending by the defendant are summed up in the following paragraphs of his 10 February 2025 report:

138 Ms Hollaway has a history of committing a serious violence offence. Psychotic symptoms, substance use, impaired regulation of emotions and behaviour were key dynamic factors that probably contributed to the index offence. These risk factors have only been partially addressed. She remains at high risk of disengaging from interventions and exposure to stress could result in escalation of these risk factors. Also as outlined in the risk assessment section, she has a high loading of historical risk factors indicating a long term risk of violence. In my opinion, Ms Hollaway poses a risk of committing a serious violence offence as defined in the Act.

139 The level of risk posed is dynamic in nature and will vary depending upon Ms Hollaway's relationship status, social circumstances, level of engagement in treatment and rehabilitation and extent of supervision. Escalation in the level of risk should be anticipated in the context of an unstable romantic relationship, psychosocial stresses, disengagement from treatment and relapse into excess use of substance and of psychosis.

140 The static risk factors are unlikely to change or fluctuate in the near future. The dynamic risk factors such as substance abuse, insight, psychotic symptoms emotional/behavioural/cognitive instability, interpersonal relationships and coping skills are amenable to change in a positive direction with engagement in treatment and rehabilitation. With stabilisation in these dynamic risk factors, her risk of committing a serious violence offence can be contained.

[Emphasis added].

115. Dr Dayalan has confined his opinion to the existence of “a risk” of the commission of a serious violence offence, recognising that it is for the Court to determine whether any risk is “unacceptable”. Dr Dayalan is of the opinion that:

it is unlikely that [the defendant’s] risk of committing a serious violence offence can be managed in the community without any order imposed.

Unless the Court determines that the risk of serious violent offending is “unacceptable”, there does not arise any question of effectively managing any lower level of risk that may be posed by the defendant. In the absence of “unacceptable risk”, such residual risk as may be identified is to be addressed by police performing their duties under the general law applicable to all members of the community and by mental health professionals carrying out the responsibilities they bear under the Mental Health Act.

116. Dr Dayalan’s view of continuing risk is highly dependent upon inference and projection from the factors that he has identified in par 138 of his report, which he says “probably contributed to the index offence” committed 14 years ago. I discount, substantially, the doctor’s opinion because it does not give sufficient weight to the age of that offence and the fact that only one subsequent serious violence offence has ever been committed, which is now 10 years in the past and which involved a very much lower order of violence than the index offence. Further, Dr Dayalan’s statement that “the risk factors have only partially been addressed” is of little value to the issue that I must decide, in circumstances where it is apparent that the amelioration of psychiatric risk factors, assuming it to have been only partial, has nevertheless been sufficient to reduce the incidence of violence on the part of the defendant during 10 years in and out of prison to nil.

117. The first of the two principal and specific risk factors identified by Dr Dayalan is psychosis. Psychosis was undoubtedly a factor in the manslaughter in April 2011 but in relation to the attempted choking in February 2015, Judge McClintock SC did not find any symptom of a mental disorder to have been causative of her conduct. His Honour expressly did not find that her psychiatric disorders required him to take into account protection of the community in fixing the length of sentence. The schizophrenia of which her psychosis is a symptom appears on the evidence to have been satisfactorily managed, both in the community and in prison, up until the involuntary admission of October 2024. The defendant’s lapse into psychosis at that time did not result in violence on her part. I am satisfied that her schizophrenia remains manageable through her return to prescribed oral medication or, if that should break down, by periodic depot injection, under an involuntary community treatment order if need be.

118. Dr Dayalan states the following at par 115 of his first report:

It is not apparent if the community mental health services are involved in the treatment of Ms Hollaway. In the absence of a legal order mandating treatment, Ms Hollaway is very unlikely to comply with any plans proposed by professional services involved in her care and monitoring.

119. If there is presently no “legal order mandating treatment”, then the question whether there should be one is to be addressed by the responsible mental health authorities. Medical officers at Cumberland Hospital are well aware of the defendant’s past offending, of her need for antipsychotic medication and of the potential for prescribed oral medications not to be effective and/or not to be taken regularly. It is for those medical officers and/or the defendant’s general practitioner to judge whether to apply to the Mental Health Tribunal for an involuntary community treatment order.

120. The possibility that psychiatric management of the defendant may require such an order does not mean that any risk of violence associated with her schizophrenia is “unacceptable”. There are many schizophrenic patients whose psychoses are managed by involuntary treatment in the community and who would pose an appreciable risk of committing serious violence offences if treatment should break down. This is an acceptable situation on the basis that the provisions of the Mental Health Act are expected to be implemented by responsible health professionals.

121. It cannot be said that this aspect of risk with respect to the defendant could only be addressed satisfactorily by an ESO. Community Corrections do not have Mental Health Act responsibilities or appropriate professional capacity to ensure ongoing treatment, by medication or otherwise. Further, having regard to the record of Community Corrections’ prosecutorial approach to supervising the defendant, I am satisfied that a fresh ESO would in all likelihood lead to a renewal of the cycle of short terms of imprisonment with brief interludes in the community, which would undermine the management of the defendant’s psychotic symptoms.

122. In his supplementary report Dr Dayalan said this at par 8:

Description of her mental state in October 2024 reinforces my opinion on Ms Hollaway suffering from a chronic psychotic illness. The recent criminal charge was incurred while she was experiencing psychosis supporting the association between her mental health condition and criminal offending. The recent entry on OIMS [Corrective Services’ record of interactions with the defendant] also indicates that Ms Hollaway is unlikely to engage in interventions addressing her substance use risk unless she is mandated to do so.

123. The continuance of the defendant’s chronic psychotic illness may be accepted, however, it can be satisfactorily managed in the community as with thousands of other schizophrenics. I give no weight to Dr Dayalan’s reliance upon the October 2024 episode as “supporting the association between her mental health condition and criminal offending”. The only offending in October 2024 was not of a violent nature but consisted of the defendant giving a false report to police, which was nothing more than her expression of an hallucination. At the time of the alleged offence she clearly had a mental health impairment within the meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). When the charge comes before the Local Court on 8 April 2025, that Court will have the power under ss 12 and 14 to dismiss it unconditionally if satisfied that the defendant is by that time under adequate treatment.

124. As for Dr Dayalan’s second specific risk factor, substance use, he does not discriminate between substances. The defendant was heavily affected by alcohol when she committed her two serious violence offences, 14 and 10 years ago respectively. She had also been smoking cannabis throughout the day leading up to the manslaughter but whether that had anything to do with the crime is obscured by the circumstance that she was psychotic at the time and that she acted under provocation and a perceived need to defend herself. There is no evidence that the defendant was affected by cannabis when she committed the attempted choking in February 2015, or that her use of any of the other illicit drugs to which she has had recourse, including opiates and methamphetamine, were associated with the commission of either of the serious violence offences.

125. At the time of her being sentenced for the manslaughter experts expressed opinions that misuse of illicit drugs had brought on the defendant’s psychosis. It has long since been accepted that she does not merely suffer from substance induced psychosis, a temporary condition that may be expected to resolve with abstinence, but that her psychotic illness, whatever its origins, is now chronic schizophrenia.

126. I discount the weight to be given to Dr Daylan’s opinion that “substance abuse”, undifferentiated as to type of substance, remains significant as a factor elevating the risk that the defendant may commit a further serious violence offence. I take that approach because I attach greater importance to the absence of any violent episodes over a decade during which misuse of various substance has been detected, both in prison and in the community.

Mr Sheehan

127. The executive summary of Mr Sheehan’s report dated 9 February 2025 includes the following:

She has a chronic history of interpersonal violence […] Her poor social choices, substance abuse, and relapsing psychotic illness have all been aggravating factors, further destabilising her, impairing her appraisal, and increasing the likelihood of conflict.

128. I am unable to reconcile the assertion of “a chronic history of interpersonal violence” with the defendant’s actual criminal record. Mr Sheehan’s own chronology at pars 58-59 of this report shows an 8½ year gap after the attempted choking in February 2015, ending with an insignificant offence of stalking and intimidation constituted by “screaming and yelling” in December 2023 – and nothing since. Further, his opinion about “aggravating factors” that have increased “the likelihood of conflict” can only be speculative in circumstances where no significant violence has materialised over such a long interval. The reference to “relapsing psychotic illness” as a factor in this “likelihood of conflict” is at odds with the evidence before me of only one relapse, in October 2024. Mr Sheehan does not identify any others.

129. A further passage of the executive summary is as follows:

Depending on the view taken, Ms Hollaway's ESO might be seen as having been an impediment to her life, imposing disproportionate penalties and loss of liberty for minor infractions; but equally, it may be that the system of intensive management and arrests have served to interrupt processes of escalation that could have resulted in more serious offending, including a serious violence offence. This is open for consideration but cannot be determined with any certainty.

130. The evidence does not support that the “system of intensive management and arrests [has] served to interrupt processes of escalation”. No process of violent escalation has ever been in train so far as I can see. Notwithstanding Mr Sheehan’s uncertainty on the point, the evidence leaves me in no doubt that the frequent imprisonment of the defendant for inconsequential breaches of her ESO conditions has caused her progress towards rehabilitation to stagnate for over seven years.

131. Mr Sheehan concluded his executive summary with the following:

Detailed examination of Ms Hollaway's self management during the current ESO (with reduced conditions) will be instructive in determining the conditions that are necessary or desirable for the ESO to be effective.

The report was written on 9 February 2025 when the ISO ordered by Yehia J, with conditions less stringent than those of the ESO, had been in force for one month. Approximately two weeks later Community Corrections put an end to any further examination of how the defendant might behave on a looser rein, by charging her on account of a positive drug test for methamphetamine, once again without any evidence of increased aggression associated with the drug.

132. Mr Sheehan considers that the defendant exhibits symptoms of Post Traumatic Stress Disorder, schizophrenia, borderline personality disorder and antisocial personality disorder. With respect to the last mentioned condition, his report includes the following:

[Although] her ESO was repeatedly interrupted by rearrest, Ms Hollaway did show interest in establishing hallmarks of prosocial life through employment, stable residence and engagement with religion. This might suggest a move away from antisocial orientation.

133. Mr Sheehan describes the defendant’s substance abuse disorder as moderate and in sustained remission with respect to amphetamines and opiates. He also considers her to be in remission with respect to alcohol use disorder and in early remission with respect to cannabis use. His report includes this observation:

During the course of her ESO, substance use has continued to be a problem for Ms Hollaway, with lapses to alcohol, cannabis and methylamphetamine. Her lapses would appear episodic, not full relapses to daily use. She was thought to show little motivation to address this element of her rehabilitation, not following up on referrals to engage in services.

134. Mr Sheehan’s interpretation of the “overall totality of evidence” is that the defendant is “within the high risk category of violent offending relative to other adult female offenders”. He accepts that she is most at risk of engaging in violence that would fall short of a serious violence offence as defined in the Act. At par 120 Mr Sheehan identifies the following protective factors:

Protective factors are the personal strengths of an individual that might decrease or offset risk of violence. Ms Hollaway's current protective factors relate to her stable accommodation and her demonstrated ability to obtain employment. In my view it is Ms Hollaway's interest in establishing these factors in her life that is most protective, showing a shift away from instability towards prioritising things that might anchor her to community life.

135. Notably, those potentially protective factors have been subverted by the constant return of the defendant to prison, in the absence of any looming escalation of risk that might usefully be interrupted. The futility and negative effects of Community Corrections’ approach to enforcing a supervision order against the defendant can be stopped by not having one.

Other professional risk assessment; defendant’s participation (s 9(3)(c)

136. Mr Ardasinski, a registered psychologist employed by Corrective Services, prepared a risk assessment report dated 6 May 2024. He made use of documentary records and information collected from his past contact with the defendant but he did not have her cooperation for the purposes of the report. She was approached for an interview in mid-April 2024 at a time when she was about to conduct her own defence of the charges that arose out of the altercation with her mother at Lightning Ridge, including the two further allegations of breach of the ESO. Without adverse reflection on the defendant, it is understandable that she was not willing to cooperate. She would have understood that a further assessment by a Corrective Services psychologist would likely be for the purpose of having her supervision extended – no doubt an unbearable prospect for a person who had been so frequently in and out of gaol on ESO charges since November 2017.

137. Mr Ardasinski clearly does not see illicit drug use as a primary factor in the risk that violence, of any degree, may be perpetrated by the defendant. At par 35 of his report, the following appears:

I also concur that Ms Hollaway likely also meets diagnostic criteria for Polysubstance Use Disorder (alcohol, cannabis) from DSM-5. There has been a plethora of empirical evidence which has demonstrated a clear link between substance use and violence [citations omitted]. In Ms Hollaway’s case, while the evidence of her using illicit drugs and abusing alcohol whilst subject to her ESO is significant, none of these instances of drug use or alcohol misuse have resulted in serious violence. It may be considered that Ms Hollaway was apprehended, through arrest and removal from the community, before any such use could escalate and lead to a high risk situation and violence ensue. However, this would be a simplistic way of interpreting the above information about Ms Hollaway’s response to supervision.

There is no evidence to support that simplistic interpretation and I reject it.

138. According to Mr Ardasinski the “chief concern regarding [the defendant] being at unconditional liberty” lies in the possibility of her forming an intimate relationship. At the end of the report there appear the following conclusions:

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 constellation of factors coalescing.

[…]

[The] literature has demonstrated a clear link between symptoms of trauma-related disorders and intimate partner violence [citation omitted]. But in Ms Hollaway's intervention sessions with CSNSW Psychology, there has been a reluctance on the part of Ms Hollaway to work on her past trauma, or at least its links to her attachment deficits and intimate partner violence risk.

139. Taking into account that principal risk factor, Mr Ardasinski’s conclusion regarding degree of risk is as follows:

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 on a number of occasions that she has been able to manage the stresses of community life without resorting to such violence.

140. For the purposes of the statutory test that I am required to apply, I do not regard a moderate risk of the defendant committing a serious violence offence as “unacceptable”, in all the circumstances. I have referred at [53] above to evidence that supports Mr Ardasinski’s view of the defendant’s proven ability to remain non-violent in the face of life stresses in the community

141. If it were necessary to consider whether another ESO should be imposed to ameliorate an otherwise unacceptable risk, I would not accept the following aspirational statements by Mr Ardasinski concerning the utility of Community Corrections supervision:

In the event that no order is imposed […] Ms Hollaway would be at unconditional liberty; and she would have no further support from, or any monitoring by, CSNSW. On the-one hand, 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 arrest and reimprisonment once her ESO expires. 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, or a stressful period in her life may see her return to heavy substance use, with cannabis and alcohol disinhibiting her within the context of any such new relationship, or within the context of her dysfunctional family connections. 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 built into them.

[Emphasis added].

142. The ESO ordered by RA Hulme J provided for a “middle ground” by conferring a wide discretion on the DSO to direct the defendant with respect to her conduct and her associations. The available discretion, either to lay charges or merely to issue a formal warning, also enabled a “middle ground” to be adopted. Ms Page’s risk management report records that the formal warning procedure has been implemented in relation to on only five occasions during the life of the ESO. The reality is that the putative benefits of “support” and “monitoring” by Community Corrections have been cancelled by frequent arrests and reimprisonment. The agency has been the author of intensely “stressful period[s] in [the defendant’s] life” associated with each reincarceration and each release. Another “middle ground” ESO that would be open to administration in the same manner would contribute nothing of benefit to either the community or the defendant.

143. Counsel for the plaintiff urged me to “proceed on the basis that the order would be administered reasonably”. Although it is not necessary to my decision, because I am not satisfied as to the existence of an unacceptable risk, I record that the wealth of evidence concerning interactions between Community Corrections and the defendant over more than 7 years would not justify the Court proceeding on the suggested basis.

Statistical assessments (s 9(3)(d))

144. I have taken into account the results of statistical and actuarial assessments of the likelihood of the defendant perpetrating further violence, as recorded in Mr Ardasinski’s report and in other professional assessments. The limitations of those tools are freely acknowledged by the experts and they do not carry significant weight in my assessment of risk, having regard to the more concrete and compelling indications from the defendant’s record of an apparently closed period of past violence and the long interval over which she has committed no violent offences. With respect to the most serious crime on her record, the manslaughter of 2011, I note the statistical fact that homicide is have a very low rate of recidivism, as acknowledged by Mr Ardasinski and by Mr Sheehan.

Risk management report; rehabilitation programs (s 9(3)(d1) and (e))

145. I have taken into account the risk management report of Ms Page. The affidavit of Mr J Barton affirmed 19 February 2025, also addresses risk management. Because I do not find there to be an unacceptable risk of the defendant committing a serious violence offence, those reports are no longer directly material to resolution of the proceedings. Factors that contribute to the residual risk of her committing some form of violence are capable of being managed under the generally applicable law, independent of the Act, as follows:

The risk of the defendant relapsing into psychosis can be managed under the Mental Health Act, as earlier explained.

With respect to the use of drugs, the defendant is subject to the prohibition on self administration of scheduled drugs, as provided for in s 12 of the Drug (Misuse and Trafficking) Act 1985 (NSW), with a maximum penalty of 2 years imprisonment.

Regarding conflict with intimate partners and family members, the evidence does not establish a significant risk that conflict would develop into serious violent offending at any time, and certainly not that such development would be so rapid as to prevent police intervention including enforcement of any Apprehended Violence Orders that may be in place.

Unacceptable administration of the ESO by Community Corrections

146. At the commencement of the hearing I raised with counsel for the plaintiff the Court’s concern that there appeared to be “no prospect of rehabilitating [the defendant] or adjusting her [to] life in the community” while she continued to be “moved in and out of prison for extended periods for doing such trivial things as drinking beer at Bondi”. Generally, I forewarned that the way in which the ESO has been administered (summarised at [20]-[27] above) seemed to be a consideration against the further ESO sought by the plaintiff. The Court received no evidence, nor information from the bar table, to explain why Community Corrections officers have exercised their discretion to prosecute the defendant so assiduously for minor breaches of her conditions of supervision.

147. For all practical purposes, the course of prosecution of the defendant for ESO breaches has disregarded the important secondary object prescribed in s 3 of the Crimes (High Risk Offenders) Act: to encourage supervised offenders to undertake rehabilitation. That object cannot properly be disregarded in the administration of an ESO any more than the Court could disregard it in determining whether to make such an order. The Court only becomes aware of how its supervision orders under the Act have been implemented upon the infrequent occasions when a renewal or revocation is sought. During the currency of an order breaches of condition are prosecuted in the Local Court and any appeals are heard in the District Court. This Court does not have routine visibility of the way its orders under the Act are enforced.

148. In cases concerning two other supervised offenders the Court has learned that breaches of its ESOs have been prosecuted according to a pattern of such frequency and such little cause as to be entirely inconsistent with rehabilitation: State of New South Wales v Carr [2014] NSWSC 1348 (Hamill J); State of New South Wales v Carr [2020] NSWSC 643 (Hamill J); State of New South Wales v McQuilton (Final) [2019] NSWSC 265 (a decision of my own).

149. The 5 year maximum penalty in s 12 of the Act for failing to comply with the requirements of a supervision order is in tension with other aspects of the legislative scheme. The maximum term that the Court may fix for an ESO is 5 years and terms of more than 3 years are rarely sought or imposed. Non-compliance that might attract a sentence towards the 5 year maximum under s 12 would have to involve conduct that also constituted a serious substantive offence, independent of the element of disobedience to the order. In such a case, the substantive offence would invariably be charged and prosecution for the breach of the ESO would be superfluous. The incongruous maximum penalty under s 12, combined with the fact that any supervised person will already be under a more restrictive regime than would attach to a non-custodial penalty, has the consequence that the Local Court generally imposes full-time custody, however short, for any breach of condition that is proved.

Frequent brief incarceration for lesser offences has never been demonstrated to have a positive impact on future reoffending in general prison populations.

151. It is difficult to see how the threshold for imposing a sentence of imprisonment under s 5(1) of the Crimes (Sentencing Procedure) Act would be crossed for most of the breaches that are prosecuted by Community Corrections, across all supervision orders that it administers – except for the fact that alternative forms of punishment would often have no real content because the level of restriction on personal liberty would be less than that already in place under the order.

152. There would be much to commend a statutory provision for punishment of ESO breaches by extension of the term of the order, either to the exclusion of imprisonment in every case or as an available alternative. That is not what Parliament has chosen by enacting s 12 in its present form. Community Corrections have known for many years that the laying of any charge under the section will usually result in a sentence of some months imprisonment. The decision to lay a charge is, therefore, effectively a decision to have the supervised person put back into full-time custody. That concentrates a significant responsibility on Corrections officers, when deciding whether to prosecute, to take into account how short term and/or intermittent reincarceration may impact upon rehabilitation of the supervised person.

153. With specific reference to this defendant, Judge Craigie SC in his judgment of June 2021 drew attention to the discretion that resides with Community Corrections on the question of whether or not to lay a charge for a breach that may be detected. I repeat, from my longer passage quoted above, that while recognising the availability of sanctions for breach, his Honour said this:

However, they do need in my view more careful consideration of whether the sanctions should almost as a matter of course involve police action. Where police action is required in the judgment of those whose burden it is to exercise the responsibility, as I am sure they do with expertise and commitment, they really do need to consider whether, even if police are involved they should press to bring the matter before a Court.

154. Neither before nor after his Honour made those observations does it appear from the evidence that consideration was ever given to refraining from laying a charge against the defendant in the interests of her rehabilitation. Her infringements have been so remote from elevation of risk of violence and in several cases so trivial that I doubt that any rational assessment preceded the decisions to prosecute. Certainly there have not been tendered records of any such assessments.

155. A report by the defendant’s DSO dated 1 August 2023 included the following:

A review of Ms Holloway’s supervision highlights that her failure to comply and subsequent returns to custody have seriously impacted her supervision. She has spent more time in custody since the commencement of her order than in the community. It is noted that since the last release [on bail] on 12 September 2022 to the residential rehabilitation program at Guthrie House Ms Holloway has demonstrated a positive change in attitude towards her supervision on ESO, resulting in a period of stability and increased compliance with her ESO.

156. The first sentence of that passage suggests that “subsequent returns to custody” have been regarded by the DSO as an inexorable consequence of “her failure to comply” and that no discretion with respect to prosecuting is recognised or exercised. If that view is held it is incorrect. Impact upon supervision is referred to in the passage. Impact upon rehabilitation does not figure, even in this retrospective view of nearly 6 years of administration of the ESO.

157. In State of New South Wales v Carr [2020] NSWSC 643 Hamill J noted at [7]:

[There] is very little evidence of the Department exercising any real discretion or restraint in enforcing the conditions. It has been rare that it has elected not to prosecute these breaches or to attempt to manage Mr Carr in a more sensitive way.

In that respect the administration of Mr Carr’s ESO parallels the present case.

158. In State of New South Wales v McQuilton (Final) at [104] I made some general observations on the enforcement of supervision orders, the last three of which were as follows:

(5) Corrective Services officers and police have a discretion with respect to prosecuting for any breach of an ESO. The decision to lay a charge cannot properly be made for the purpose of securing imprisonment as a means of reducing the risk of further offending. The proper purpose of a prosecution for breach of conditions is only to bring the offender before a Magistrate for the imposition of such penalty as may be thought to deter him from future breaches. Prosecutions for breaches are not to be used to convert ESOs into a form of intermittent extended detention order.

(6) In exercising the discretion to lay a charge for breach of conditions there should be taken into account the likelihood that imprisonment will disrupt the offender’s rehabilitation (and treatment, if there is a psychiatric diagnosis). If a charge is laid, submissions on penalty should fairly bring to the attention of the court full details of the offender’s history under the ESO, to enable consideration of the potentially adverse impact of imprisonment upon rehabilitation and treatment.

(7) The Act’s primary objective is ensuring “the safety and protection of the community”. Section 3(2) prescribes the further objective of encouraging offenders to undertake rehabilitation. The two are not inconsistent. Exercise of Corrective Services’ discretions in such a way as to foster rehabilitation will contribute to protection of the community.

159. Figures compiled by the Bureau of Crime Statistics and Research (BOCSAR) show that, in the five years between October 2019 and September 2024, across both violent and sexual offender categories, 582 prosecutions for non-compliance with supervision orders proceeded to conviction and sentence. Another 48 prosecutions were completed in relation to supervised high risk terrorism offenders. To the uninitiated the statistics might give the impression that offenders who are subject to these orders brazenly carry on committing crimes of the type that led to them being under supervision. In fact, if any substantive fresh offence is committed while an order is in place it is not prosecuted under the Act but under the general criminal law. Substantive fresh offending of that nature is not captured in the quoted BOCSAR statistics. The 630 prosecutions for breach of supervision orders concern infringements like those described in this judgment and instances of not wearing or charging ankle monitors, not adhering to schedules of movements, not attending consultations with Corrections officers or psychologists and so on.

160. If there were high rates of recidivist reoffending, in sexual, violent or terrorist categories, by individuals under statutory supervision orders, the efficacy of the legislation might well be questioned. But that is not what is shown by the statistics I have cited. When those numbers are considered in combination with details of the breaches that the prosecutions relate to – such as those summarised in this judgment and in the judgments concerning Mr Carr and Mr McQuilton – different issues arise; namely, whether the discretion to prosecute for breach is being over utilised, whether repeated prosecution for breach is ineffective for securing future compliance with supervision orders and whether such enforcement action undermines Parliament’s stated object of encouraging rehabilitation.

Orders

161. For the reasons given above, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision pursuant to an extended supervision order. Accordingly, the following orders will be entered:

162. The summons is dismissed.

163. The interim supervision order made by Yehia J on 24 November 2024 and subsequently renewed on 6 February 2025 is discharged forthwith.

Upon publishing this judgment and entering the above orders, the Court will hear the parties as to any application for costs.

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