State of New South Wales v John Raymond Holschier

Background

1. The defendant was born on 19 June 1967, and was 22 years old at the time of the killing. He had a criminal history, commencing when he was 14 years old, comprising offences of dishonesty, firearms offences, and offences of violence. The convictions for violence were sustained between 1985 and 1987, involving offences of assault, assault occasioning actual bodily harm and robbery. In 1987 there was also a conviction for demanding money with menaces, which appears to have been committed in circumstances involving violence.
2. The defendant is now 48 years old. He was born and brought up in Deniliquin. He had a disturbed upbringing and limited education. He has a history of abuse of alcohol and illicit drugs since his teenage years, and the majority of his adult life has been spent in custody.
3. He is now married, having met his current wife while in custody. They married in 2001 and, despite being in custody, he managed to father two children with her, a girl and a boy, now in their early teens. They have been in the care of the Department of Family and Community Services (FACS), and live with the defendant's mother in Deniliquin. His wife has substance abuse and mental health issues. She has six other children, four of them adults but two of them also in their teenage years, and those two younger children are also in the care of FACS.
4. During the course of the proceedings the defendant's wife sent an email to his solicitor, expressing her desire to re-establish the relationship. She added that if he does not get approval to live in Deniliquin, they would live in Albury or Wagga, close enough for her to maintain contact with her family. She noted that the State is asking for a condition of an extended supervision order preventing him having any contact with their children, unless approved by his departmental supervising officer. She acknowledged that his contact with her younger children would be a matter for FACS.

Response to parole

1. On 4 December 2008, the defendant was released on parole with a number of conditions. One of those conditions required him to observe a risk of harm management plan established by the Department of Community Services in relation to the children of his current marriage. It was alleged that he had breached that condition by visiting the home where the children resided with his wife. He was arrested, and his parole was subsequently revoked. He denies this breach.
2. He was again released on parole on 9 March 2010, and appeared to make good progress in the community for several months. However, on 27 May 2010, he is alleged to have threatened serious violence against his mother and threatened to burn her house down. The children were living with his mother at the time. An ADVO was taken out for the benefit of his mother and the children. He is also alleged to have threatened to assault his 16 year old nephew at around that time.
3. In November 2010, he is alleged to have assaulted his wife and threatened to harm her and her family. His wife's daughter's boyfriend attended the premises, and he threatened all three of them. Again, ADVOs were taken out to protect his wife and her family.
4. In January 2011, he was arrested and charged with assaulting and intimidating his wife. A statement taken from her at the time described a pattern of domestic abuse by him: verbal abuse, intimidation and actual violence. Another AVO was taken out, but the criminal charges were later withdrawn.
5. His parole was revoked on 1 February 2011, but in March 2011 he was charged with breach of the AVO by contacting his wife numerous times by telephone while in custody. He was convicted for that offence and placed on a bond.
6. He was released on parole a third time on 20 July 2011. He resided in a Community Offender Support Program ("COSP") facility at Cooma. His behaviour there was described as "antagonistic in that he tended to become verbally abusive." He later moved into private accommodation, where he started associating with anti-social peers whom he had previously known. It is alleged that he behaved in a threatening manner towards a man in Hay over a matter which appears to have been trivial. In October 2011, he went to Deniliquin and visited his step-daughter, in contravention of a parole condition that he not enter that town without approval. Finally, in November 2011, he admitted to his parole officer that he had used amphetamines. His parole was revoked on 13 December 2011.
7. On 11 September 2014, he was again released on parole for the brief balance of his sentence and resided, under supervision, at Rainbow Lodge at Glebe.

Expert reports

1. I received in evidence a risk assessment report of 28 April 2014 by Ms Danielle Matsuo, psychologist. The report is comprehensive, tracing the defendant's background, including his intimate relationships, his offending, his prison history, his response to community supervision, and his participation in programs while he was in custody.
2. He has had the benefit of completing a number of educational and vocational training courses. More importantly, he has undertaken a number of psycho-educational and cognitive-behaviour therapy programs, including one in anger management, as well as the Getting SMART substance abuse program (while on parole in 2008). In 2013 he undertook a program called "Managing Emotions" and a domestic abuse program. His response to these programs was generally positive.
3. In making her risk assessment, Ms Matsuo had resort to the Violence Risk Scale (VRS), a form of assessment taking into account static and dynamic risk factors. She noted the caution with which conclusions should be drawn from the use of the scale, and set out the dynamic factors to which she had regard in the light of Mr Holschier's history. These included his pattern of interpersonal aggression, particularly in his intimate relationships, his impulsivity and lack of emotional control, and his substance use. She concluded he fell into the high risk category of violent re-offending.
4. That said, she noted that he expressed remorse for the murder and for the grievous bodily harm to his daughter (while still maintaining, apparently, that her injuries were suffered accidentally during the struggle with his wife), and that he displayed some insight into the factors contributing to his violent behaviour generally. She noted that he had displayed a superficial approach to supervision in the past, but that he intended to resume his relationship with his wife and stay away from Deniliquin (where his children are) because of the "negative peer groups he might associate with."
5. Ms Matsuo's preferred treatment option would have been the Violent Offenders Therapeutic Program (VOTP), a prison based program of about 12 months duration offered to medium to high risk violent offenders. There is available in the community the VOTP Maintenance and Outreach program, but she did not consider that sufficient to meet the intensity of intervention required to match the defendant's level of risk. Nevertheless, she reported that the program could "focus particularly on stability of relationships and assist Mr Holschier to identify and manage his risk factors and high risk scenarios." It could also assist him in "reintegration into the community in a pro-social manner after lengthy incarceration." He could also participate in the CSNSW Domestic Abuse Program. Generally, she noted that under an extended supervision order he would be subject to the "ongoing intensive supervision and case management" commonly associated with such an order.
6. I also received a report of another psychologist, Dr Katie Seidler, of 29 August 2014. This report also contains a comprehensive summary of the available material. To Dr Seidler also the defendant expressed his remorse for the offences against both his wife and his daughter, and also recognised the risks of his re-offending, particularly not dealing with his personal problems, engaging in "distorted, hyper-masculine thinking", mixing with anti-social peers, boredom, and substance abuse. Although he wants to return to rural life, he accepted that supervision on his release would require him to remain in the Sydney metropolitan area for some time. He accepted also that he would need treatment and support in the community, and acknowledged that, as matters stand, he is not allowed to have any contact with his younger children.
7. Applying the VRS, Dr Seidler concluded that he was at medium risk of re-offending, and she saw it as unlikely that any future violence would be as extreme as the index offences. She considered that he had "gained considerably" from his imprisonment and his participation in the program, and that many of his risks could now be "well managed in the community." That said, she recognised that his "reported changes are quite recent and his capacity to sustain this in the community, in the face of general life stressors and temptations is, as yet, untested." She saw this as calling for "caution and careful management."
8. She considered that his risk of re-offending would increase if he returned to substance abuse or anti-social peers, or if his relationship with his wife deteriorated. She said that exposure to significant stressors would be difficult for him to cope with and may also increase his risk. She appreciated the reasons for limiting his access to his wife, mother and children, but noted that these people were the most important in his life and, in managing his risks and promoting his positive coping strategies, it was necessary that he have some relationship with them. Indeed, she feared that limiting his connection "to the most important emotional attachments in his life" could increase his risk. Thus, she observed, "it is important to balance risk management, victim protection and the need for rehabilitation."
9. In oral evidence, Dr Seidler said that resumption of contact with his wife needed to be planned, in association with his treating psychologist. Resumption of contact with their children would need to be undertaken with caution. He should be able to have supervised phone contact with them but "face to face contact would have to be over a longer period of time incrementally," also with supervision. It would be desirable, she said, for this process to be undertaken in consultation with the Department of Family and Community Services and any clinician working with him.
10. Both psychologists believe that the defendant has characteristics consistent with anti-social personality disorder and substance abuse disorder, and these were the diagnoses of Dr Richard Furst, psychiatrist, who provided a report of 26 August 2014. His report also was prepared after a comprehensive review of the material, including Ms Matsuo's report.
11. Dr Furst's own clinical assessment led him to conclude that the defendant's risk of future violence "is probably in the moderate to high range." He noted "some evidence of a shift in previous anti-social values and attitudes and greater engagement and insight over recent years." Dr Furst noted that he expressed remorse about his offence and accepted that he deserved his sentence, factors which the doctor saw as providing "some reassurance." He reported that he also had insight into the need to withdraw from conflict in interpersonal relationships, especially if intoxicated.
12. Nevertheless, he observed in his report: "However, the true test will take place when given more freedom in the community and when confronted with the typical challenges encountered in a marital relationship. In my view, such stressors and risks will require ongoing supervision, monitoring and therapeutic interventions, especially having regard to his index offence and previous pattern of offending. The other factor that will require monitoring and may present an increased risk of offending is the possibility of future alcohol abuse and/or substance abuse as a consequence of his underlying addiction problem. Abstinence from alcohol and drugs, monitoring to ensure abstinence, and further input in the form of relapse prevention would most likely reduce the risk of him relapsing into abusing drugs."
13. Dr Furst expressed the view that the appropriate duration of an extended supervision order would be 5 years, the period sought by the State. He also gave oral evidence, directed largely to the conditions of the order. To that matter I shall return. He too considered that resumption of the defendant's contact with his younger children should be planned in consultation with FACS.

ESO appropriate

1. By s 5E(2) of the Crimes (High Risk Offenders) Act, I may make an extended supervision order if I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. There is an abundance of authority on this, to which it is not necessary to refer. On the evidence which I have summarised, I was satisfied that an order should be made. Counsel for the defendant, Mr Scragg, accepted as much.
2. A relevant matter in framing the terms of the order was how long the defendant would be required to remain in Sydney, given that he is a stranger to the city and his roots and familial connections are in the Riverina area. I received evidence from Ms Julie Bates, unit leader of the Extended Supervision Orders Team, Community Corrections New South Wales, concerning the regime of supervision, especially the intensive supervision usually required in the early stages of an order. I also received supplementary reports from Dr Furst and Dr Seidler, and Dr Furst gave some further evidence. In addition, the defendant's solicitor, Ms Clarke, made contact with David Evans, a senior psychologist with Corrective Services who has responsibility in the Riverina region, and Ms Matsuo gave some evidence on this aspect.
3. The effect of this material is that the requirements of intensive supervision and frequent psychological consultation during the early stage point to his remaining in Sydney for at least 12 months. The necessary resources are not available outside the metropolitan area. At the time of the hearing of the application the defendant had not commenced the VOTP Maintenance and Outreach program, and it was unclear when he would. Ms Matsuo explained that that program does not replace the VOTP, and is primarily directed to those who have been released from custody after having done it. VOTP Maintenance and Outreach staff are based only in Sydney, although they have access to audio visual link technology for consultations with people outside the area. Mr Evans is not VOTP trained but, of course, could liaise with staff in Sydney who are.
4. I considered it inappropriate to specify some period after which the defendant should be free to leave Sydney. That is a matter best left to the discretion of those supervising him, who are well aware of the desirability of his settling in a rural area with which he is familiar and, in due course, re-establishing contact with his wife and children.

Duration of order

1. While an order of 5 years might be the best option from a therapeutic point of view, I consider that 3 years was the appropriate period. I am of the view, as I have been in previous cases, that a longer period might inhibit the defendant's motivation towards rehabilitation, mindful of the capacity of the State to seek an extension of the period if the circumstances so warranted. On this issue I respectfully agree with the observations of Button J in Attorney General for the State of New South Wales v Steadman [2013] NSWSC 170 at [82], and of R A Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003 at [74] - [75].

Conditions

1. Mr Scragg objected to a number of the proposed conditions of the order, noting that what is really at issue here is the risk of further violence in a domestic setting. Certainly, some of the conditions sought appeared to have been lifted from conditions applicable to serious sex offenders and were not called for. These were conditions restricting the defendant's contact with children generally and his access to places which children might frequent, and befriending adults through whom contact might be made with children. I accept that those conditions were not appropriate and I disallowed them.
2. Of the other proposed conditions, Mr Scragg objected on the same basis to electronic monitoring and the requirement to provide a schedule of movements. However, these requirements are in the discretion of the supervising officer, and I accept that they are part of the initial intensive supervision necessary to assist the defendant to adjust to life in the community and behave appropriately after such a long period in custody. This was also the view of all three experts. Electronic monitoring and the schedule of movements go hand in hand. However, I was troubled by the evidence of Ms Bates that, in practice, these matters are reviewed only every 6 months, and then at a more senior level rather than by the supervising officer. For that reason I allowed these conditions subject to their being reviewed at intervals of no more than 3 months. I can only trust that these conditions would be applied flexibly, and would be relaxed when they no longer seem to be needed.
3. There are conditions that the defendant reside at an address approved by his supervising officer and, if it is a residential facility, that he obey all reasonable instructions given to him by staff there in the interests of the safety and welfare of others. Mr Scragg objected to further conditions requiring approval to stay elsewhere overnight or to have someone stay with him and, if directed, to observe a curfew. These, however, I also see as part of the intensive supervision regime appropriate at an early stage. They also, I trust, would be applied flexibly.
4. There are conditions concerning the defendant's employment, finance and education. Objection is taken to conditions requiring him to advise his supervising officer before entering into any significant financial transaction, and seeking approval before undertaking any educational course. These are objected to but, here again, I see them as appropriate in fostering his re-integration into the community.
5. There are conditions that the defendant not enter Deniliquin, and that he not contact or communicate with his wife, his children or her younger children, without the approval of his supervising officer. That approval may be granted only after consultation with his wife, the children concerned, FACS and the defendant's treating psychologist. Mr Scragg challenged these conditions, noting the current attitude of the defendant's wife and arguing that contact with the children could appropriately be monitored by FACS. However, in the light of the evidence of Dr Furst and Dr Seidler, I think the conditions are appropriate. Renewed contact with the defendant's wife, given her own problems with mental health and substance use, needs to be pursued carefully and, in the circumstances, all the more is this so of contact with the children. However, as I have said, supervising staff must be well aware of the desirability of those contacts being re-established and I trust that, in co-operation with FACS, those aims will be pursued.
6. Finally, Mr Scragg objected to conditions empowering the supervising officer to search the defendant's premises and his person if he or she believes that it is necessary for the safety and welfare of residents or staff at his premises, or to monitor his compliance with the order, or because the officer reasonably suspects him of behaviour carrying an increased risk of the commission of a serious violence offence. Mr Scragg referred to the variety of conditions which may be placed upon an extended supervision order in s 11 of the Crimes (High Risk Offenders) Act, noting that this power of search and seizure is not one of them. He argued that the defendant has a common law right not to be stopped and searched and, relying on the principle of legality, submitted that the Act had not provided to the contrary expressly or by necessary implication. However, as counsel for the State, Mr Hammond, pointed out, these conditions have frequently been imposed when orders are made under the Act. He noted that the list of conditions in s 11 is inclusive, and is expressed not to be exhaustive. He noted that many of the conditions imposed under an extended supervision order restrict a defendant from exercising rights he or she would otherwise have, in the interests of the protection of the community. I accept Mr Hammond's submission on this aspect, and I consider these conditions to be appropriate.
7. Generally, I believe that conditions which I imposed are necessary and conducive to the protective purpose of the legislation.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2016