Citation: R v Hollaway [2016] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 12 August 2016
Judges: Payne JA at [1]; R A Hulme J at [2]; Adamson J at [45]
Background
The respondent was convicted by jury of attempting to intentionally choke another person so as to render her incapable of resistance, contrary to s 37(1) of the Crimes Act 1900 (NSW). The offence arose from an incident on 4 February 2015, when the respondent attended the victim's unit after a day of drinking, broke a window, and then physically attacked the victim. Police arrived to find the respondent sitting on the victim with her hands around the victim's throat, pulling her neck backwards.
At the time of the offence, the respondent was on parole following a sentence for manslaughter. The manslaughter conviction had been entered on the basis of substantial impairment by abnormality of mind, in circumstances involving drug-induced psychosis, a history of severe childhood trauma, and a finding that she had been provoked and was acting in self-defence but not reasonably so.
The District Court sentenced the respondent to 1 year 9 months imprisonment with a non-parole period of 1 year for the primary offence, backdated to 4 November 2015. The Crown appealed, contending the sentence was infected by four specific errors and was manifestly inadequate.
Legal Issues
- Whether the sentencing judge erred in backdating the sentence to 4 November 2015, effectively making the non-parole period substantially concurrent with the respondent's service of the balance of her parole period
- Whether the judge failed to give adequate consideration to the protection of the community
- Whether the judge failed to give adequate consideration to specific deterrence
- Whether the sentence imposed was manifestly inadequate
Decision
The Court of Criminal Appeal dismissed all four grounds of the Crown appeal, finding no error established in any of the challenged aspects of the sentence.
On backdating, the Court found no error where the parole revocation was caused solely by the index offences. The judge was not required to impose additional punishment by setting a later commencement date merely because the offending occurred on parole. The backdating in these circumstances was consistent with established principle.
On protection of the community and specific deterrence, the Crown argued that the respondent's prior violent offending demanded greater weight be given to these considerations. The Court rejected this, noting that the manslaughter offence had occurred in significantly different circumstances: it involved a drug-induced psychosis, a finding of provocation, and a degree of self-defence. Those features were absent from the primary offence, but the differences justified the sentencing judge treating the prior offending as less directly predictive of future violence.
On manifest inadequacy, the Court acknowledged the Crown's submission that a head sentence of 21 months with a 12-month non-parole period was insufficient for a serious offence committed on parole. However, having regard to what the Crown itself described as the respondent's "compelling subjective case," the relative position of the conduct within the range of offending captured by s 37, and the contextual factors (including a dysfunctional relationship, significant alcohol intoxication of both parties, and injury sustained by the respondent), the Court was not persuaded the sentence fell outside the permissible range.
Orders Made
- Crown appeal against sentence dismissed.
Key Takeaways
- No error arises from backdating a sentence where parole was revoked solely because of the index offences; the sentencing court is not obliged to impose additional punishment through a later commencement date in that circumstance.
- A sentencing court does not automatically err by giving limited weight to prior violent offending when that prior offending occurred in substantially different circumstances, including the presence of psychiatric impairment and provocation that are absent from the current offence.
- In dismissing the manifest inadequacy ground, the Court of Criminal Appeal confirmed that the full range of conduct captured by s 37(1) of the Crimes Act is relevant context: an attempt to choke (as opposed to a completed choking rendering the victim unconscious) sits within a spectrum, and the objective seriousness of the particular conduct must be assessed accordingly.
- A compelling subjective case, including a background of severe childhood trauma, psychiatric history, and prior sentencing findings, can legitimately moderate the weight given to general and specific deterrence without rendering the resulting sentence manifestly inadequate.
- Under the manifest inadequacy ground in a Crown appeal, the appellate court will not intervene merely because a different outcome was open; the sentence must fall outside the range of sentences reasonably available to the sentencing judge.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 23A, 37(1), 195
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 24, 47
Cases:
- Barnes v R [2014] NSWCCA 224
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- R v Baker [2000] NSWCCA 85
- R v Hollaway [2013] NSWSC 218
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465