Director of Public Prosecutions v Holland
[2023] VSC 510
•29 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0388
| Director of Public Prosecutions | Crown |
| v | |
| Klay Holland | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 June 2023 |
DATE OF JUDGMENT: | 29 August 2023 |
CASE MAY BE CITED AS: | DPP v Holland |
MEDIUM NEUTRAL CITATION: | [2023] VSC 510 |
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SENTENCE — Offender acquitted of manslaughter but convicted of rape after trial by jury — Standard sentence offence — Insertion of barrel of fake rifle into victim’s anus then into victim’s mouth — Revenge for victim breaking into home and threatening occupants with a knife — Upper mid‑range example of offence of rape — Numerous prior convictions for assaults — Intellectual disability — Depression and anxiety — Verdins principles 1, 4, 5 & 6 applicable — Harsher prison conditions because of pandemic — Separation from young children also making incarceration harder — R v Empey [2004] VSCA 243 — R v Gill [2010] VSCA 67 — DPP v McMaster (2008) 19 VR 191 — DPP v Mirik [2007] VSCA 150 — R v Verdins (2007) 16 VR 269 — Sentencing Act 1991, ss 5, 5B and 11A.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill with Ms C Foot | Office of Public Prosecutions |
| For Klay Holland | Mr A Patton with Ms K Mildenhall | SLKQ Lawyers |
HIS HONOUR:
CIRCUMSTANCES OF OFFENDING
On the night of 15–16 March 2021, a man named Shane Cox broke into unit 1 at 12 Fay Street, Melton which was reputed to be a drug den. He was high on methylamphetamine and armed with a knife. There were a number of people in the unit at the time, including you, Klay Holland, Thomas Briody, Lewis Brown (who lived there), Dianne Cutmore and Mathew Fisher. Tania Kerr, who also lived there, was not home at the time of the home invasion.
Mr Cox threatened Mr Fisher with the knife and began rummaging through the house. You, Mr Holland, grabbed a baseball bat and struck Mr Cox repeatedly, overpowering him. But nobody called the police (although I accept Ms Cutmore’s evidence that you asked her to call Tania Kerr and the police).
Mr Cox was not allowed to leave. Various people came and went during the night whilst he was still there, including Tania Kerr and her then partner Heremoana Tauira. It appears that Tania Kerr did not want the police called.
I am satisfied by Ms Cutmore’s evidence[1] of the following matters. At some stage during the night, when Mr Cox was lying on the floor of the loungeroom, incapacitated, you, Mr Holland, told Cutmore to bring you an imitation rifle that was in a bag in the loungeroom. You took the rifle from her and placed it in Mr Cox’s mouth. You then pulled his pants down and pushed the rifle barrel into Mr Cox’s anus, at which point Mr Cox yelled out in pain. You then pulled the gun out of Mr Cox’s anus and put the rifle barrel back in Mr Cox’s mouth.
[1]Trial Transcript, 650-652, 688-689.
Your rape of Mr Cox was a callous, degrading and humiliating act of retribution. I reject your counsel’s submission that your offending was spontaneous. It was premeditated, albeit the premeditation was of limited duration.
Dispute regarding uncharged act
A matter in dispute at your plea hearing was whether there was a second act of penetration (an uncharged act), and if so, whether I should take it into account as a circumstance of aggravation in sentencing you. I am satisfied beyond reasonable doubt, based on the evidence of Cutmore[2] and Fisher,[3] that you inserted the barrel of the imitation rifle into Mr Cox’s anus a second time. But having regard to what the Court of Appeal said in DPP v McMaster,[4] I take the view that I would be sentencing you for an offence you are not charged with if I acceded to the prosecution’s submission that I should take the uncharged act into account in sentencing you for the charged act of rape. In McMaster, Ashley JA said this:
[If] the circumstances reveal an uncharged offence which is less serious, it is open to the sentencing court to have regard to those circumstances as aggravating the charged offence if it considers that as a matter of degree and fairness it should do so.[5]
[2]Trial transcript, 655.
[3]Trial transcript, 397 & 413.
[4]DPP v McMaster (2008) 19 VR 191.
[5]DPP v McMaster (2008) 19 VR 191, 200. The full passage in Ashley JA’s judgment reads as follows:
“[A]t a time and in circumstances intimately connected with the commission of a charged offence, an offender may also commit a second offence, in respect of which no charge is laid. The circumstances of the uncharged offence cannot be taken into account as circumstances of aggravation of the offence charged if they would have warranted a conviction for a more serious offence. But if the circumstances reveal an uncharged offence which is less serious, it is open to the sentencing court to have regard to those circumstances as aggravating the charged offence if it considers that as a matter of degree and fairness it should do so.”
In my view, the second act of penetration was not a lesser offence. It was at least as serious as the first penetration and arguably more serious because it was a second rape, manifesting your complete contempt for Mr Cox. The prosecution should have laid a charge in respect of the second penetration if it wanted me to properly take it into account in sentencing you.
On the morning of 17 March 2021, police attended the unit and entered through an unlocked door. They were looking for you, Mr Holland, but they found Mr Cox instead, under some bedding in the loungeroom. He was already dead. He was also hogtied, his mouth was duct taped and his pants were pulled down to his upper thighs. Police also found the imitation rifle previously mentioned.
At the autopsy on 18 March 2021, the pathologist found that there was damage to Mr Cox’s rectum consistent with the insertion of an object such as the imitation rifle barrel.
At your trial, at which you did not give evidence (as was your right), causation and self‑defence were the two key issues in relation to the charge of manslaughter. Your counsel argued that, based on the evidence of the prosecution’s witnesses, Mr Cox was alive when you left the unit on the morning of 16 March 2021 and that another person summoned by Tania Kerr to deal with the situation may have intervened and caused Mr Cox’s death. Your counsel also argued that any blows struck by you were struck in self-defence. In relation to the charge of rape, your counsel argued unsuccessfully that the jury could not be satisfied beyond reasonable doubt that you had penetrated Mr Cox’s anus with the imitation firearm.
On 7 March 2023, the jury found you not guilty of one count of manslaughter and guilty of one count of rape. The maximum penalty for rape is 25 years’ imprisonment. The standard sentence for rape is 10 years’ imprisonment.
Victim Impact
Mr Cox was your main victim but not your only victim.
I have taken into account the victim impact statements that were made by Shane Cox’s former partner, Chantal Larder, and by his sister, Jennifer Dunstall. They are devastated at what happened to Mr Cox.
In reading those victim impact statements, which understandably focused mostly on Mr Cox’s death, and the circumstances of his death, I have borne in mind that you were acquitted of manslaughter. You are to be sentenced for rape, not manslaughter.
Assessment of seriousness of offending
I accept the prosecution’s submission that this was an upper mid‑range example of the offence of rape.[6] Though your degree of premeditation was limited, the insertion of the rifle barrel into the mouth, the anus and back into the mouth of Mr Cox was particularly degrading and humiliating. Your cognitive limitations (of which I will say more later) did not, in my opinion, obscure in any way your appreciation of those facts. On the contrary, I infer that it was your clear intention to degrade and humiliate Mr Cox in the presence of others, by way of retribution.
[6]See Prosecution’s written submissions at [17] & [19].
PROCEDURAL HISTORY
The procedural history of your case is as follows. You were arrested on 22 March 2021 — approximately a week after the incident — and you have been in custody since that time. You were charged with murder, rape and other offences.
You were committed by a magistrate on the charges of murder and rape but the murder charge fell away when the Director of Public Prosecutions filed an indictment in this court alleging manslaughter, not murder.
In your favour, I have regard to the fact that the charge of murder was hanging over your head for a considerable period, as was the charge of manslaughter thereafter, of which charge you were ultimately acquitted.
CIRCUMSTANCES OF OFFENDER
Biography
Turning to your personal history and circumstances, you were born on 5 September 1990, making you 30 at the time of the offence and 32 now.
Your mother and father had five boys. You are the second youngest. Your mother was an aged care worker. Your father held various jobs, including council worker, motel manager and proprietor of a fish and chip shop.
You attended St Mary’s Primary School in Ararat, then Ararat Secondary College. You struggled academically. From Grade 2, you had a teacher’s aide assigned to you.
When you were 12, your family moved to Inverloch. You attended Leongatha Secondary College and Wonthaggi Secondary School, getting expelled from both for fighting. Your secondary education ended a few weeks into Year 9.
As an adolescent, the relationship you had with your father was very strained. It seems this was a byproduct of your parents’ rocky relationship. According to you, they separated frequently due to your father’s long‑term relationship with another woman.
You have worked in various jobs since leaving school, including spray painting cars, sandblasting, roof tiling and concreting. You have often worked with your brothers. You have also had significant periods of unemployment.
You commenced receiving the Disability Support Pension in your early twenties after being diagnosed with an intellectual disability.
You have used illicit drugs and alcohol heavily from the age of 12 onwards. The drugs have included cannabis, speed, ecstasy and methylamphetamine.
In your late teens, early twenties you fathered three children to a Krystal Janzten with whom you had been in an on‑again, off‑again relationship since you were 15. Ms Jantzen has written you a character reference. She supports contact between you and your children, who, as at the date of your plea hearing, were aged 10, 11 and 13.
As regards your physical health, you have been diagnosed with Ankylosing Spondylitis (arthritis of the spine) and Chronic Nerve Pain.
You say that when you were about 15 to 16, you were assaulted in a nightclub and suffered a head injury.
When you were about 18, according to the history you gave psychologist Carla Ferrari, you had a serious car accident in which you lost consciousness. You report mood changes since that accident as well as back and hip pain for which you are medicated.
When you were 27, you were hospitalised at the Royal Melbourne Hospital with facial fractures. According to you, you were assaulted, being struck in the head with a pole, causing you to again lose consciousness. I was supplied with a discharge summary from the Royal Melbourne Hospital about that matter.
As regards your mental health, you report long standing depression and anxiety. I will say more about this later. You also report a suicide attempt when you were about 20 in the context of relationship difficulties.
Criminal History
Your criminal record runs to some 17 pages, from 24 May 2010, when you were 19, to 30 September 2019, when you were 29. You have no priors for sex offences but you have numerous priors for assaults and making threats, to wit:
·24 May 2010, assault with a weapon (x2);
·3 October 2013, make threat to kill;
·17 February 2015, recklessly cause injury, make threat to kill (x2), use threatening words in a public place, intentionally cause injury;
·19 October 2016, unlawful assault, recklessly cause serious injury;
·8 December 2017, recklessly cause injury, aggravated assault of female, use threatening words in public place, unlawful assault; and
·30 September 2019, unlawful assault.
Your other prior offences include contraventions of intervention orders, contravention of Community Correction Orders, criminal damage, using, possessing and cultivating cannabis, driving offences, bail offences, burglary and possession of a prohibited weapon. As a condition of some of your CCOs, you have been placed on a Justice Plan which reflects the fact that you have an intellectual disability. Drug and alcohol treatment has also been ordered under the CCOs.
The sentences that have been imposed on you have included sentences of imprisonment of seven days, 69 days, four months, five months, and 149 days respectively, the last of those sentences being imposed in 2019.
Character References
I received character references from:
·Krystal Jantzen, your former partner and mother of your three children;
·Carolyn Holland, your mother;
·Thomas Holland, your father;
·Jay Holland, your oldest brother;
·Kate Walker, your paternal aunty;
·Colleen Frichot, another aunty; and
·Lorraine Fernando, your father’s partner.
All of the references stress that you continue to deny your guilt of the rape. All your referees describe such offending as out of character.
Your former partner and your parents maintain frequent contact with you. They, and others, speak of your commitment to your children. Your father links your early use of illicit drugs to your struggles at school due to your learning disability. Your mother links your abuse of illicit drugs at least in part to the pain you experience from your physical ailments. Your paternal aunty links your drug abuse to mixing with the wrong peer groups.
I note that your mother says you have been clean of illicit drugs whilst in prison. That opinion is supported by the clean drug screens tendered on your behalf.
Medical Reports
Six medical reports were tendered at your plea hearing. In chronological order, they were reports from:
·Psychologist Warren Simmons, dated 5 April 2013;
·Neuropsychologist Dr Melissa Slayo, dated 15 May 2013;
·Neuropsychologist Dr Linda Borg, dated 5 December 2014;
·Royal Melbourne Hospital, being a discharge summary dated 17 November 2017;
·Your GP, Dr Dusan Sajdak, dated 23 April 2021; and
·Psychologist Carla Ferrari, dated 30 May 2023.
The main points I take from psychologist Simmons’ report, which was written for other court proceedings when you were 22, are these:
·You always struggled academically and did not like school;
·As you were growing up, your parents’ relationship was very rocky because of your father’s long‑term relationship with another woman;
·You told Mr Simmons that you were “angry as a child” (p3). You were often fighting with your brothers and you were expelled from two secondary schools for fighting;
·You began using alcohol and cannabis heavily when you were 12. By your mid‑teens, you were using methylamphetamine on a daily basis, as well as experimenting with other drugs; and
·On intelligence testing, your composite IQ score was 53 (p5).
The main points I take from the report of neuropsychologist Slayo, who assessed you when you were 22, are these:
·She found that your overall intellectual abilities fell between the extremely low and borderline range (2nd percentile) (p4);
·She found that “[Your] compromised intelligence is relevant to [your history of] offending, as [you lack] the cognitive ability to consistently exercise proper judgment and self-responsibility” (p6); and
·She opined that “[your] intellectual disability will likely place [you] at greater risk of vulnerability than the average prisoner [and] prison could impair [your] prognosis”(p6).
The main points I take from the report of neuropsychologist Borg, who assessed you when you were 24, are these:
·You claimed to have used speed and ecstasy every day between the ages of 15 and 18 and you used methylamphetamine daily from the age of 16 for a couple of years (p3);
·Dr Borg opined that “by using substances from such an early age, it is quite likely that [your] prefrontal cortex has failed to fully develop or mature. Therefore, in situations of stress or crisis [you] will tend to revert back to an adolescent, egocentric way of coping”(p8);
·On formal mood assessment, you endorsed severe depression and stress, as well as extremely severe anxiety (p6);
·Dr Borg assessed your full scale IQ as 75, placing you in the borderline range of intellectual disability. She credited your improved IQ result to you refraining from cannabis use for a couple of months prior to her assessment of you (p7);
·She found that you demonstrate “at least a mild degree of substance related brain injury related to [your] cannabis abuse in addition to [your] impaired intellectual skills” (p8); and
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She stated that “[you] will tend to be quite rigid in [your] thinking and this can often manifest in [you] being quite egocentric with a heightened sense of self‑importance. When in situations of stress this impairment is likely to be more noticeable and [your] behaviour may often be likened to that of a
12–13 year old in such instances”(p9).
The main point I take from the Royal Melbourne Hospital discharge summary report is that you suffered bilateral mandible fractures in November 2017.
The main points I take from the report of Dr Sajdak, your GP, are that your medical history includes anger management issues, depression and anxiety as well as physical pain.
The main points I take from psychologist Carla Ferrari’s report are these:
·You continue to deny having raped Mr Cox [86];
·Whilst you had been using cannabis and methylamphetamine in the weeks leading up to your offence, you did not use substances other than a “few cans” of alcohol on the day of the offence [87];
·As well as an Intellectual Disability, you have a number of Clinical Disorders, namely, Major Depressive Disorder (recurrent, moderate to severe), Generalized Anxiety Disorder, Alcohol Use Disorder, Cannabis Use Disorder, and Stimulant Use Disorder [99];[7]
·Ms Ferrari assessed you as a moderate to high risk of future physical violence according to the HCR-20 V3 “if [your] conditions remain untreated and [you] continue to abuse substances to cope”[121];
·Ms Ferrari opined that imprisonment would likely “weigh more heavily on [you] than an individual without [your] conditions” [126] and could “exacerbate [your] symptoms” [127].
[7]According to Ferrari, you may have symptoms of a Post Traumatic Stress Disorder but that was a provisional diagnosis only [107]. There is also the possibility that you have an Attention Deficit Hyperactivity Disorder [108].
Verdins
I consider that your intellectual disability, in combination with your long‑term depression and anxiety, compromises your emotional regulation. I find that that in turn reduces to some extent your moral culpability for the current offending, given the circumstances in which your offending occurred, namely, that Mr Cox entered the unit as an intruder, with a knife, threatening you and others, ignoring entreaties to leave and had to be overpowered (Verdins 1). Having regard to the seriousness of the current offence, and your violent criminal history, I reject your counsel’s submission that I should, by reason of your impaired mental functioning, moderate specific deterrence in working out the sentence to impose on you. However, making an example of you to others is less appropriate because of your cognitive limitations and so I will moderate the weight to be given to general deterrence (Verdins 4). I will also take into account in your favour that, by reason of your impaired mental functioning, imprisonment will be harder for you than the ordinary prisoner (Verdins 5) and there is a real risk that it will aggravate your depression and anxiety (Verdins 6).
Progress in Custody
As regards your progress in custody, you have completed a number of courses whilst on remand. The relevant certificates were tendered on your behalf.
I will take into account that a substantial portion of your pre-sentence detention involved harsher conditions because of the pandemic.
You have also been receiving counselling pursuant to an NDIS plan which I will refer to in more detail in a moment. I encourage you to continue with that counselling.
Prospects of Rehabilitation
Your counsel submitted that your prospects of rehabilitation are fair to good. Given the seriousness of your offending, your extensive priors for violence, your failure to accept responsibility for this rape, and your long history of substance abuse, I am not persuaded on the balance of probabilities that you have good rehabilitative prospects. On the other hand, it is a positive that you have tendered seven clean drug screens whilst in custody (between 28 May 2021 and 20 December 2022) and that you have signed onto an NDIS plan, which, according to the letter from Kristy Davis of NDIS, has been in place since December 2021. Under the NDIS plan, you are receiving counselling and will be assisted to find appropriate work upon your release from custody. You also have strong family support. In light of these considerations, I will accept that your prospects of rehabilitation are fair.[8] But specific deterrence still needs to be given considerable weight for the reasons indicated above.
[8]See National Disability Insurance Scheme Plan Approval letter, dated 30 May 2023.
Mitigating Circumstances
To summarise the circumstances of mitigation that I will take into account in sentencing you , I am satisfied of the following:
·Because of your impaired mental functioning, principles 1, 4, 5 & 6 of Verdins apply to the extent I have already outlined;
·You have experienced harsher prison conditions for an extended period because of the pandemic;
·You have had the stress of being on trial for homicide (murder originally, and later, manslaughter) for over two years;
·You are separated from your three young children and, according to their mother, your oldest child is particularly struggling, which no doubt adds to the hardship of prison for you; and
·You have fair prospects of rehabilitation.
SENTENCE
Current Sentencing Practices
Turning to current sentencing practices, to which I am obliged to have regard, your counsel referred me to DPP v Mirik[9] which your counsel described as an analogous but a worse offence. In that case, Cetin Mirik inserted six tree branches into the victim’s anus, causing serious internal injuries. He did so to punish, humiliate and degrade, not for sexual gratification. Cetin Mirik, who pleaded guilty and had an IQ of 54, received from the Court of Appeal, on a Directors Appeal,[10] a sentence of eight years’ imprisonment for the rape. But Mirik, which concerned offending back in 2005, was not a standard sentence rape case.[11] Pursuant to s 5B(2)(b) of the Sentencing Act 1991, I may only have regard to current sentencing practices for standard sentence rapes.
[9][2007] VSCA 150.
[10]The principle of double jeopardy meant that the Court of Appeal imposed a lesser sentence than the one it would have imposed if it had been the primary sentencer: see DPP v Mirik [2007] VSCA 150, [50].
[11]Neither are R v Empey [2004] VSCA 243 nor R v Gill [2010] VSCA 67 which were mentioned in passing by the prosecution in its written submissions because they were rapes involving the use of an instrument and were not committed for the purpose of sexual gratification.
The prosecution stated in their written submissions that “there are simply no cases post standard sentence regime that are remotely comparable that can be provided to the Court to assist in the sentencing task in this case.”[12]
[12]Prosecution’s written submissions at [31].
Purposes of Sentencing
The purposes of sentencing are set out in s 5 of the Sentencing Act 1991.
All of those purposes — just punishment, denunciation, specific and general deterrence, rehabilitation and protection of the community — must be factored into your sentence for this serious offence, though, as I mentioned, I will moderate general deterrence because of your impaired mental functioning.
Having regard to s 11A(4) of the Sentencing Act 1991, and your counsel’s submissions, I consider that a non‑parole period of approximately 60% of the head sentence is appropriate. That will hopefully promote your rehabilitation.
As mentioned, rape is a standard sentence offence. I will be imposing a lesser sentence than the standard sentence of 10 years’ imprisonment but I consider that is appropriate for the reasons given above.
Mr Holland, please stand.
For the offence of rape, I impose a sentence of eight years’ imprisonment.
I impose a non-parole period of four years and 10 months.
I declare that you have served 858 days of your sentence by way of presentence detention. Since your arrest on 22 March 2021, you have spent a total of 890 days in custody, however, 32 of those days concern a sentence imposed for another matter.
Ancillary Orders
Finally, I grant the prosecution’s unopposed application for a disposal order.
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