R v Hollaway

1. [1]

   PAYNE JA: I agree with R A Hulme J.

2. [2]

   R A HULME J: The Crown has appealed against a sentence imposed in the District Court by McClintock SC DCJ on 27 May 2016 upon Ms Karyna Hollaway ("the respondent").

3. [3]

   The respondent was found guilty by a jury of an offence of attempting to intentionally choke Ms Kay Skene so as to render her incapable of resistance. This is an offence which is contrary to s 37(1) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 10 years. I will refer to this as "the primary offence".

4. [4]

   The respondent was also sentenced following pleas of guilty for offences of intentionally damaging property and breaching an apprehended domestic violence order (ADVO) (the latter appearing on a s 166 Certificate). These offences are contrary to s 195 of the Crimes Act and s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalties are imprisonment for 5 years and for 2 years and/or a fine of 50 penalty units respectively.

5. [5]

   The learned judge sentenced the respondent for the primary offence to imprisonment for 1 year 9 months with a non-parole period of 1 year. He imposed fixed term sentences of 3 months and 1 month for the other offences and ordered that all of the sentences date from 4 November 2015.

6. [6]

   Notice of the Crown appeal was filed promptly. It was made clear at the hearing that the appeal is only pursued in relation to the primary offence. Four grounds are raised which contend that the judge specifically erred in backdating the sentence; failing to consider the protection of the community; failing adequately to consider specific deterrence; and imposing a manifestly inadequate sentence. None of these grounds have been made good for the reasons that follow.

Facts

1. [7]

   There was some contest about the factual basis upon which the judge should sentence for the primary offence. He had the advantage of having heard the evidence of witnesses during the course of the trial, particularly that of the victim and the respondent. Counsel for the respondent took no issue with the following brief summary provided in the Crown's written submissions.

Personal circumstances of the respondent

1. [8]

   The respondent was born in 1989 and so she was aged 26 at the time of the offences. Her criminal history includes the following matters:

2. [9]

   The most significant matter in the respondent's history is the manslaughter offence for which she was sentenced by Price J on 22 March 2013: R v Hollaway [2013] NSWSC 218. The respondent and Ms Skene had been living at the deceased's home for a brief time. The respondent continued living there after Ms Skene was taken into custody on outstanding warrants. On an occasion in April 2011 after the respondent and the deceased had spent some time consuming alcohol and cannabis, the deceased approached the respondent from behind and grabbed her around the neck and said something suggesting that he was going to rape her. She grabbed a knife and stabbed him a number of times.

3. [10]

   The Crown accepted a plea of guilty to manslaughter on the basis of substantial impairment by abnormality of mind (s 23A of the Crimes Act). This was supported by the reports of three forensic psychiatrists. Dr Stephen Allnutt considered that at the time of the offence the respondent was likely experiencing symptoms of psychosis. He considered that a differential diagnosis would include schizophrenia, schizoaffective disorder and a drug induced psychosis. Dr Jeremy O'Dea's diagnoses were that of substance use disorder – currently in remission; drug induced psychosis – currently in remission; and personality disorder. Dr Olav Nielssen made the diagnoses of substance dependence and abuse disorder; drug induced psychotic illness (in remission); and probable personality disorder.

4. [11]

   Price J was satisfied that at the time of the stabbing the respondent's capacity to understand events and to judge whether her actions were right or wrong, and to control herself, was substantially impaired by an abnormality of mind arising from an underlying condition of a drug induced psychosis on the background of unstable personality. His Honour was also satisfied that the respondent was acting in self-defence (but that her response was not a reasonable one) and that she had been provoked.

5. [12]

   Price J also made the following observations and findings concerning the respondent's background:

6. [13]

   Price J also referred to the opinions of the three psychiatrists on matters relevant to the respondent's future prospects of rehabilitation and risk of re-offending:

7. [14]

   The judgment of Price J was before McClintock SC DCJ and he referred to it in the course of his remarks on sentence. Of course, and as the Crown pointed out, the opinions of the psychiatrists were by this time somewhat dated, they having reported in 2011 and 2012.

8. [15]

   The respondent was released on parole on 9 June 2014 and she moved into Ms Skene's apartment at Malabar. At that stage they had been in an intimate relationship for some eight years. On 15-16 August 2014 the respondent damaged property belonging to Ms Skene, the property generally comprising electrical items such as a television and a computer. When police attended the premises they found the various items smashed on the lounge room floor. The respondent appeared to be well-affected by alcohol.

9. [16]

   The respondent received a six week sentence of imprisonment for this offence and her parole was revoked. The revocation was rescinded, effective 19 December 2014 but only insofar as to permit the respondent to live at a residential diversionary program in Cessnock for female offenders with mental health and drug and alcohol abuse issues. She was released on parole into the community on 26 January 2015. The present offences occurred just over a week later.

10. [17]

    The respondent's parole was again revoked. She was required to serve the balance of parole of 1 year 8 months and 6 days from 4 February 2015 until 9 October 2016. This presented the sentencing judge with the question of whether, and if so by how much, to backdate the respondent's sentence. The Crown submitted that he should commence the sentence from 23 March 2016, the date of the sentence hearing.

11. [18]

    The question of when to commence the sentence was governed by s 47 of the Crimes (Sentencing Procedure) Act:

12. [19]

    It can be seen that the options available were to commence the sentence on the day of imposition or on some prior date. There was no power to post-date the sentence. The judge was required to take into account the time which the respondent had been held in custody in relation to the offence. (Section 24(a) requires this as well.)

13. [20]

    Submissions for the Crown referred his Honour to the principal authority dealing with the question of accumulation and concurrency of sentence when an offender is required to serve a period of balance of parole for a prior matter: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145. His Honour said:

Some findings on sentence

1. [21]

   The learned judge (correctly with respect) regarded it as an aggravating factor that the offence was committed whilst the respondent was on parole.

2. [22]

   He considered that her criminal history denied her a degree of leniency but it was not an extensive record.

3. [23]

   As to the respondent's background, including the history of mental illness and substance abuse he said:

4. [24]

   His Honour determined that "this is a serious offence" and reiterated that it was aggravated by the respondent having been relatively recently released and being on parole.

5. [25]

   His Honour found that the property damage offence was totally subsumed by the primary offence: "it was one course of criminality attempting to gain access to the place that she was living in". The breach of the ADVO offence was also encompassed within the criminality of the primary offence. For these reasons he determined to order that the sentences be served concurrently. The Crown makes no complaint about that.

6. [26]

   Finally, his Honour noted that the offence was "an attempt and not an actually completed offence".

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

1. [27]

   In Callaghan v R a judge had ordered that a sentence be wholly accumulated upon a period of balance of parole that the offender had served following revocation. The revocation was exclusively referable to the charges giving rise to the new sentence. It was contended on appeal that he had been "doubly punished".

2. [28]

   Simpson J referred to earlier cases in this Court in which the issue had been considered. She continued:

3. [29]

   The clear point is that the issue is one of discretion. It must, of course, be exercised in a principled way: Barnes v R [2014] NSWCCA 224 at [28].

4. [30]

   The Crown complains that the sentence for the primary offence will only extend beyond the parole period for the manslaughter sentence by about a month.

5. [31]

   It is important to bear in mind that the parole was revoked only because of the respondent's commission of the index offences. As Simpson J noted in the italicised passage in the above extract, if not for the new offences, it may have been the case that even if parole had been revoked for some other reason the respondent may have been given a further chance at parole.

6. [32]

   The option available to the sentencing judge according to the requirements of the Crimes (Sentencing Procedure) Act was to date the sentence at any time from the date of the respondent's arrest and refusal of bail through until the date sentence was imposed. It is clear that he carefully considered this discretionary issue and chose to adopt a middle course by specifying that the sentence post-date the respondent's incarceration for the present matters by 9 months. In other words, she would serve (in round terms) 9 months solely referable to the parole period of the previous sentence, 11 months referable to both matters and then a further 1 month solely referable to the primary offence.

7. [33]

   I am not persuaded that this was not a sound discretionary choice. If the judge had adopted the submission the Crown made to him, he would have dated the sentence from 23 March 2016 and under this regime the respondent would serve an extra 5.5 months before being released on parole. When one has regard to the purposes of Crown appeals against sentence I do not think this is a matter for the Crown to quibble about.

8. [34]

   I would reject Ground 1.

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

1. [35]

   The Crown's written submissions noted that the judge had relied upon Price J's assessment of the psychiatric evidence that was before him. This was said to be unobjectionable provided that it was appropriately adapted to reflect the facts of the further offending. However, it was submitted, his Honour did not conduct this further analysis. In particular, he did not take into account that the evidence before Price J was directed at the question of whether the defence of substantial impairment was available rather than the issues raised in this sentencing exercise. Further, there was no evidence that the respondent was suffering from the psychotic symptoms she was reported to have been experiencing at the time of the manslaughter offence three years earlier. It was stated in a report by a social worker that was prepared in 2016 and tendered in the present proceedings that the respondent's mental health was "stable".

2. [36]

   The Crown submitted that the present matter involved a violent attack upon a person with whom the respondent was living, in circumstances of gross intoxication. It was contended that the fact it occurred only nine days after being released on parole for a second time indicated that the respondent poses a significant risk to the community and that considerations of specific deterrence were elevated. Whilst mention was made by his Honour of protection of the community, he failed (so it was submitted) "to make any meaningful assessment of the extent to which the sentence was required to reflect that consideration".

3. [37]

   I am not persuaded that either of these asserted errors occurred. The judge specifically stated that he had to bear in mind the various purposes of sentencing which included specific deterrence and protection of the community. Perhaps he might have said that he gave these matters particular emphasis having regard to the matters the Crown has identified. But, as counsel for the respondent has correctly observed, this is a matter of "weight" and there is ample authority for the proposition that the circumstances in which this Court will be justified in intervening in relation to such a matter are narrowly confined: see, for example, R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing).

4. [38]

   A further matter raised in support of these grounds was that there was similarity between the circumstances of these offences and that of the manslaughter offence in 2011. In my respectful view, whilst both occurred in a residential environment when the respondent was intoxicated, the manslaughter offence was significantly different in that it occurred when the respondent was substantially impaired by an abnormality of mind in the manner described earlier (at [10]-[11]) and involved a response to what she perceived was an imminent sexual assault upon her.

5. [39]

   I would reject Grounds 2 and 3.

Ground 4 – The sentence is manifestly inadequate

1. [40]

   The Crown's written submission in relation to this ground was succinct and may be reproduced in full:

2. [41]

   The judge did not say more about his assessment of the relative level of seriousness of the offence aside from twice saying that it was "a serious offence". Submissions for the respondent made the point that it needed to be kept in the perspective of the range of conduct encapsulated by s 37 of the Crimes Act. A 10 year maximum penalty applies to the offence in s 37(1):

3. [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.

4. [43]

   Having regard to what the Crown conceded was the respondent's "compelling subjective case", and not being persuaded of the asserted errors under the previous grounds, I am not prepared to conclude that the sentence is manifestly inadequate.

Order

1. [44]

   I propose the following order:

2. [45]

   ADAMSON J: I agree with R A Hulme J.