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District Court 14 August 2015

Hollis v R

[2015] NSWDC 352

Fraud & dishonesty
CRIMINAL LAW SEVERITY APPEAL WHETHER APPELLANT SUITABLE FOR ICO HISTORY OF DRUG ADDICTION APPELLANT DRUG FREE

Citation: Hollis v R [2015] NSWDC 352
Court: District Court of New South Wales
Date: 14 August 2015
Judge: Neilson DCJ

Background

The appellant had accumulated a series of fraud-related offences dealt with across multiple Local Court appearances, including using false documents to obtain a financial advantage and possessing identification information to facilitate an indictable offence. Earlier sentencing outcomes had included section 9 good behaviour bonds, which were revoked by Magistrate Milledge on 10 October 2014 after a further offence of unlawfully obtaining goods. Magistrate Milledge then imposed six months' imprisonment on each matter, to be served concurrently.

The appellant appealed against that custodial sentence to the District Court. Her initial appeal against conviction was not pursued, leaving only the severity of the sentence in issue.

The proceedings before Neilson DCJ were considerably delayed. An earlier ICO assessment had found the appellant unsuitable due to inconsistent urinalysis results. The matter was adjourned to allow her to complete a residential drug and alcohol rehabilitation program at St John of God Hospital, followed by an inpatient psychiatric program for anxiety and depression.

  • Whether the sentence of six months' imprisonment imposed by Magistrate Milledge was manifestly excessive in all the circumstances
  • Whether the appellant was suitable for an Intensive Correction Order (ICO), given her history of drug addiction and earlier adverse assessment
  • What the appropriate sentence should be on a fresh sentencing exercise by the District Court

Decision

Neilson DCJ accepted that a term of imprisonment was warranted, and had indicated at the February 2015 hearing that a sentence of one year's imprisonment was appropriate. The central question was whether that term could be served in the community by way of an ICO rather than in full-time custody.

The updated ICO assessment report, provided ahead of the August 2015 hearing, concluded that the appellant had become suitable for an ICO. She had successfully completed the residential AOD program at St John of God Hospital in July 2015 and was at the time of the hearing an inpatient in the hospital's anxiety and depression program, with discharge anticipated within days. Urinalysis conducted in late July 2015 returned a negative result.

His Honour noted the gravity of the overall offending, observing that if maximum penalties had been applied across all matters in the District Court, the total exposure would have reached 43.5 years' imprisonment. Nonetheless, he found that the appellant's demonstrated rehabilitation, stable home environment, employment, and current drug-free status made an ICO appropriate. Both the Crown and the appellant were in agreement that an ICO should be imposed.

His Honour was careful to explain the consequences of non-compliance: if the ICO were revoked by the Commissioner for Corrective Services, the appellant would be required to serve the balance of the term in custody, with no right to return to a court.

Orders Made

  • Each severity appeal allowed
  • For the offences dealt with on 19 July 2013 and 5 August 2013 (previously the subject of section 9 bonds): a sentence of one year's imprisonment to be served by way of an Intensive Correction Order, commencing 24 August 2015, with each sentence wholly concurrent
  • For the goods in custody offence sentenced by Magistrate Milledge on 10 October 2014: six months' imprisonment to be served by way of an Intensive Correction Order, wholly concurrent with the other sentences

Key Takeaways

  • The District Court allowed a severity appeal and re-sentenced the appellant to one year's imprisonment to be served by way of an ICO, replacing concurrent six-month full-time custodial terms imposed by the Local Court.
  • A negative ICO assessment is not necessarily final. Here, an adjournment to allow the appellant to complete residential rehabilitation produced a favourable updated assessment, which the Court accepted as the basis for granting the ICO.
  • Completion of an AOD residential program and consistent negative urinalysis results were significant factors in the Court's conclusion that a community-based sentence was appropriate, despite a serious and escalating pattern of fraud offending.
  • Where maximum penalties applied across multiple indictable offences would have produced a very substantial combined term, the court's decision to impose an ICO reflected the weight given to demonstrated rehabilitation rather than a minimisation of the underlying conduct.
  • Neilson DCJ emphasised that revocation of an ICO by the Commissioner for Corrective Services is final and does not attract any further court review, a feature that distinguishes non-compliance with an ICO from breach of other community-based orders.

Legislation and Cases Referenced

Legislation:
- Section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (good behaviour bonds)
- Intensive Correction Order provisions under the Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- No cases were cited in the judgment text provided. His Honour referred to the practice of giving a "Parker warning" (a caution to an appellant that the appeal court may impose a heavier sentence than the one being appealed), which derives from established appellate sentencing practice.