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District Court 28 March 2022

R v Holland

[2022] NSWDC 118

Assault & violenceDomestic & family violence
SENTENCING DOMESTIC VIOLENCE OFFENCE BLIGHT ON CIVIL SOCIETY REPEAT DOMESTIC VIOLENCE OFFENDER WOUND TO NECK USE OF A WEAPON

Citation: R v Holland [2022] NSWDC 118
Court: District Court of NSW
Date: 28 March 2022
Judge: Grant DCJ

Background

The offender, Troy Anthony Holland, was charged following an incident on 11 December 2020 at the victim's home in Lavington. He had attended the premises ostensibly to see his children. After being told he could not enter the house, he went inside, retrieved a kitchen knife, and cut the victim's neck with it while she lay on the bed. The victim had a broken leg at the time and was unable to flee or defend herself.

The children were at home during the attack. They came to their mother's aid and directed the offender to leave after the wounding occurred.

The offender faced an indictment charging break, enter and commit a serious indictable offence (count 1) and, in the alternative, wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (count 2). On the day his trial was listed, he pleaded not guilty to count 1 and guilty to count 2. The Crown accepted the guilty plea in full satisfaction of the indictment.

  • What discount, if any, applied to the sentence given the timing and circumstances of the guilty plea?
  • Where did the offending fall on the spectrum of objective seriousness?
  • Whether the victim's broken leg rendered her a "vulnerable victim" within s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999?
  • Whether the children witnessing the immediate aftermath of the attack was a proper aggravating factor?
  • Whether special circumstances existed justifying a non-parole period greater than the statutory ratio?
  • What weight should be given to the offender's below-average intellectual functioning in moderating general deterrence?

Decision

Guilty plea and discount. The court found that the offender had entered a not-guilty plea on 10 September 2021, contrary to defence submissions. He pleaded guilty on arraignment on the day of trial, 10 November 2021. Applying s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the court allowed a 5% discount, the minimum applicable at that stage of proceedings.

Objective seriousness. The court assessed the offending as falling slightly below the mid-range of objective seriousness. Aggravating features included the use of a weapon, the location of the attack in the victim's own home, the intent to cause grievous bodily harm, and the wound to the throat. The wound itself was a 5-centimetre superficial cut that did not transect the deeper platysma layer and was not immediately life-threatening, though the court observed that millimetres could have meant the difference between survival and death. The children witnessing the immediate aftermath was treated as a further aggravating feature, consistent with R v Seymour [2012] NSWSC 1010.

Vulnerable victim. The court found that the victim's broken leg constituted a vulnerability for the purposes of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999. Because of her injury, she was unable to run or fight back. The court noted the provision does not provide an exhaustive list of vulnerabilities, relying on Ollis v R [2011] NSWCCA 155 and Morris v R [2007] NSWCCA 127.

Subjective circumstances and special circumstances. The court received a forensic psychology report from Dr Anne Lucas. The offender had a history of substance misuse beginning in adolescence and scored a composite 71 on an abbreviated intelligence scale, placing him at the third percentile. The court found this warranted some moderation of general deterrence, though it did not substantially reduce the sentence given his appalling criminal record, repeat domestic violence offending, conditional liberty at the time of the offence, and absence of contrition. The court found special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, given the offender's need for a high level of support on release, and set the non-parole period at 66% of the head sentence rather than the standard 75%.

Orders Made

  • Sentence of 4 years and 6 months imprisonment, commencing 11 December 2020 and expiring 10 June 2025.
  • Non-parole period of 3 years, with eligibility for parole from 10 December 2023.
  • Final Apprehended Violence Order (AVO) made for the protection of the victim for a period of two years, with the following conditions:
  • The offender must not assault, threaten, stalk, harass, or intimidate the victim or anyone she has a domestic relationship with.
  • The offender must not intentionally or recklessly destroy or damage property or harm any animal belonging to the victim.
  • The offender must not approach or contact the victim in any way, except through a lawyer.
  • The offender must not go within 900 metres of any place where the victim lives, works, or any listed place.
  • Breach of the AVO carries a maximum penalty of 2 years imprisonment and/or a fine of $5,500.

Key Takeaways

  • A victim's physical incapacity at the time of an attack, such as a broken leg preventing flight or self-defence, can constitute vulnerability under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, even though the provision does not list physical injury as a prescribed category.
  • Children witnessing the immediate aftermath of a domestic violence attack, rather than the attack itself, is a recognised aggravating factor in NSW sentencing: R v Seymour [2012] NSWSC 1010.
  • A guilty plea entered on the day of trial attracts only a 5% discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, regardless of defence submissions as to when the intention to plead guilty may have formed.
  • Below-average intellectual functioning, demonstrated through psychometric testing, may warrant some moderation of the weight given to general deterrence, though it does not override other significant sentencing considerations such as criminal history and absence of contrition.
  • The District Court reiterated that repeat domestic violence offending involving weapons demands substantial sentences that reflect specific and general deterrence, denunciation, and community protection, consistent with R v Hamid (2006) 164 ACrimR 179.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 112(3)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(2)(l), 25D(2)(c), 44(2)

Cases:
- DPP v Tennison [2020] VCA 343
- McKinnon v R [2020] NSWCCA 106
- Morris v R [2007] NSWCCA 127
- Ollis v R [2011] NSWCCA 155
- RC v R; R v RC [2020] NSWCCA 76
- R v Hamid (2006) 164 ACrimR 179
- R v Kelso [2020] NSWDC 157
- R v Seymour [2012] NSWSC 1010
- R v Tangi (No 12) [2020] NSWSC 547
- R v Webb [2004] NSWCCA 330
- Scott v R [2020] NSWCCA 81
- Valentine v R [2020] NSWCCA 116