Director of Public Prosecutions v Hollis

[2023] VCC 1704

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-00400

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY HOLLIS

---

JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2023, 11 September 2023
DATE OF SENTENCE:	20 September 2023
CASE MAY BE CITED AS:	DPP v Hollis
MEDIUM NEUTRAL CITATION:	[2023] VCC 1704

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Aggravated burglary – intent to assault person with weapon, namely a knife – threat to inflict serious injury – possess imitation firearms – prior criminal history – serious example of offence – victim not present is immaterial – early plea of guilty – Bugmy principles apply – uncertain prospects of rehabilitation – Verdins

Legislation Cited:      Firearms Act 1986; Sentencing Act 1991

Cases Cited:Worboyes v R [2021] VSCA 169; Bugmy v R [2013] 249 CLR 571; DPP v Herrmann [2021] VSCA 160; Sabbatucci v R [2021] VSCA 340; Newton v R [2023] VSCA 22; R v Verdins (2007) 16 VR 269

Sentence:                  Total effective sentence of 4 years imprisonment. Non-parole period of 2 years and eight months imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Mr J. Harris	Doogue + George Criminal Lawyers

HIS HONOUR: 

Introduction

1Ashley Hollis, I propose to sentence you to a total effective sentence of four years' imprisonment and fix a non-parole period of two years and eight months' imprisonment.  I will declare your 278 days of pre‑sentence detention as time served under my sentences.  For the firearm offences, I will fine you a total of $1,000.

2You pleaded guilty to a charge of aggravated burglary, a charge of making a threat to inflict serious injury and two charges of being a prohibited person in possession of imitation firearms.

3The charge of aggravated burglary here involves the ingredients of a burglary with the intent to assault a person and being armed with a knife.  

4The circumstances of your offending are set out in the prosecution's opening.  You agree with its contents.

Circumstances

5On Sunday 11 December 2022, you were visiting friends at their home in Capel Sound.  While drinking alcohol, one of your friends told you the victim was residing across the road.  

6At about 6:55 am, you and your friends walked to that property.  You asked one of them to point out the victim's room, which he did.  You entered the house and stood outside the room and yelled for him to open the door.  You yelled out for a couple of minutes, threatening to forcibly enter before you kicked the door several times, while holding a 15-centimetre knife in your right hand.

7As your friends stood close by, you told them you are 'going to stab this cunt in the throat' before yelling out to the victim he had two minutes to come out before you ripped him to pieces.  You then left the premises.  What you said constitutes Charge 2, a charge of threatening to inflict serious injury.  

8A few minutes later, at 7.01 am, you walked back and re-enter the premises.  You then rammed the door of the victim's room with your shoulder, forcing it open and causing major damage.  You entered the room and remained inside for about five seconds before realising the victim was not present. You left the room with the knife still in your right hand.  These circumstances constitute Charge 1, a charge of aggravated burglary.

9At 1.11 pm the same day, the victim sent his landlady a text message asking her to call him as urgently.  She phoned him and he explained the circumstances of the incident.

10At about 5.00 pm the landlady met the victim at the Rosebud police station where she formally reported the incident.  The victim sought help from the police to find him crisis accommodation through the Salvation Army.  He told the police he did not wish to make a statement about the incident.

11On 16 December 2022 you were arrested.  The police took you to your home, which they searched.  They found in the wardrobe of your bedroom a CA 870 pump action shotgun Gel Blaster and an imitation handgun in a wardrobe.  You are a prohibited person under the Firearms Act 1986.

12When later interviewed by the police you co‑operated fully, giving as much information as you could remember.  Relevantly, you said the victim had been a family friend, he had assaulted your mother who died two weeks earlier.  Your grandfather had also died recently.  At the time of the incident, you were in a bad way mentally.   

Victim impact statement

13The victim declined to give an impact statement.

Criminal history

14Between 21 October 2010 and 13 December 2022, excluding appeals, you have appeared in a criminal court on 11 occasions and have been convicted of 52 charges.  You have been sentenced to imprisonment on four occasions.  Your longest sentence was nine months' imprisonment, imposed on 15 April 2020.

15Your criminal history contains charges of burglary, recklessly causing serious injury, intentionally and recklessly causing injury, assaulting and resisting police, assault, affray, making a threat to kill, threatening to inflict serious injury, damaging property and contravening family violence intervention orders, including a persistent contravention of a family violence intervention order.

16The record establishes you are a violent offender for whom specific deterrence and protecting the community from you are important sentencing considerations.  

Personal  

17You are now 32 and were born in Victoria.  You have a younger brother, Brandon, who is supportive of you.

18Your parents separated when you were three and you live with your mother.  You were removed from her care at 12 and went to live with your father.  Your brother lived with your grandmother and this separation was difficult for both of you.  

19You describe your childhood as unstable with your father being physically violent towards you.  At 13 you were placed into foster care but were restored to your mother’s care within a year.

20Living with your mother and stepfather you were again exposed to violence and at 15 made the decision to live with your grandparents in New South Wales.  You had a close relationship with them.

21Tragically, your grandparents died in quick succession and your mother died from lung cancer in November 2022, two weeks prior to the offending before this court.

22You have not spoken to your father since you left him at 13.  You have the support of family and friends, who were present at court for the plea hearing and are today for your sentencing.  You are very close to your brother, describing him as your best mate.

23You have had one long term relationship with your ex-partner when you were 22 until 27.  There is a son. Your partner had a daughter from a previous relationship.  You became a psychological father to your stepdaughter.  Unfortunately, you have not seen either child in the last three years.  This is a source of considerable distress for you.

24You finished school in Year 9.  Due to the instability of your home life, you describe your school years as disruptive.  You were bullied.  You became an angry person, behaving badly at school and being suspended from secondary school many times.  

25Through the guidance of your friends and their parents you returned to secondary schooling, completing Year 11 at a TAFE.  After this, you started working as a labourer at 16 and assisted in financially supporting your mother.  Your work history of the past seven years has been with your brother and his bricklaying business. You have a good working history and ethic, sometimes working seven days a week.  You have worked continuously, except during the month following your son’s birth.  You intend to resume working with your brother upon your release from custody.

26You started drinking alcohol recreationally as an adolescent.  It became a problem from the age of 18. You used cannabis from 14 and from 16 used it heavily.  You did not use drugs for the six months after your last release from custody and participated in drug and alcohol counselling.  However, you returned to drugs after your mother’s death, which was two months before the present offending.  Your mother's funeral was two days before the offending. Following the funeral, you drank at least 20 cans of Jack Daniels doubles and used a 'lot' of cannabis, as you put it.  

Psychologist

27Naomi Cameron is a forensic psychologist.  At the request of your solicitors, she interviewed you on 30 January 2023[1].  Her colleague, Miriam Latif, had interviewed you on 11 May 2021.  

[1] Report dated 22 February 2023.

28Ms Cameron diagnosed you as suffering from the recognised psychological disorders of major depressive, generalised anxiety, alcohol use, cannabis use, post‑traumatic stress and borderline personality.  Without further testing she was unwilling to diagnose a bipolar disorder.

29She considered your adverse childhood experiences predisposed you to developing the post-traumatic stress and major depressive disorders.  These leave you with 'extreme difficulties' in controlling your anger.

30In paragraph 85 of her report, Ms Cameron summarised her opinion at considerable length:

'Taking into consideration Mr Hollis' history, the circumstances leading up to the alleged offences and his functioning at the time of the offences, a number of factors likely contributed to his offending behaviour.

It appears that his complex trauma and distrust of others have impacted his mental health functioning within society and predisposed him to have a higher susceptibility and lower threshold for psychological distress and emotional dysregulation.  His early exposure to violence may have normalised and predisposed him to model his behaviour as a form of intergenerational violence, and his early exposure to substance use likely desensitised him to his own problematic use.  

Further, his dysfunctional upbringing and personality vulnerabilities predisposed him to affective instability, intense experiences of emotions, distress, intolerance and anger.  

At the time of the offending his capacity to engage in rational decision-making and appreciate the wrongfulness and consequences of his conduct were impaired.  He was grieving his mother’s death and was consuming very heavy amounts of substances following her funeral. Emotional dysregulation impairs problem-solving and healthy information processing and can lead to an increase in negative emotions and a decrease in prosocial responses, as has been the case with Mr Hollis.  

His acute alcohol intoxication would have heightened his risk-taking behaviour, impulsivity, and behavioural disinhibition.  Substance use increases levels of impulsivity, risk-taking, and behavioural disinhibition (i.e., a lack of restraint and self‑control), which were already at a higher baseline due to his personality vulnerabilities and poor anger controls.  These factors increase the risk of criminal misconduct.

Discovering that his late mother's alleged abuser was living nearby precipitated his intense feelings of anger and he likely engaged in the offending behaviour in the absence of effective coping strategies or problem‑solving skills to regulate his emotions and resolve interpersonal conflict, and due to implicit offence supportive attitudes such as 'violence as retribution.'

31Psychologically, Ms Cameron assessed your risk of general re-offending as medium to high.

32She observed imprisonment would weigh more heavily on you than a person without your mental health vulnerabilities. She did not believe your mental health would be adequately treated while you are in custody. Interestingly, the clinical notes of the practitioners who attended you in custody suggest the contrary. You have received, and I expect will continue to receive, a great deal of treatment for your mental health issues.

33In prison, your substance use disorders are controlled. Your risk of re-offending is contained in prison. Outside of prison, and without intensive support, you have a high likelihood of destabilisation and relapse into substance use when faced with stressors. Assuming I were to impose what Ms Cameron called a 'supervision order', she recommended:

(a)   drug and alcohol counselling including a referral to a residential rehabilitation programme;

(b)   psychological counselling, including attention to your anger management; and

(c)   assistance to build your recreational activities.     

Discussion  

Purposes

34Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

35Each of these purposes is relevant to you.

36Your criminal history and psychological makeup bring into focus the purposes of specific deterrence and protecting the community from you. In some stressful situations you become very angry, which you cannot control, leading to violence.  

37Section 5(2) of the Sentencing Act sets out matters which I must consider if they are relevant to you.  

Maximum penalties

38As a starting point, it is important to bear in mind the maximum penalties for each of the offences contained in the charges. In terms of imprisonment, the maximum penalties are:

(a)   aggravated burglary – 25 years;

(b)   prohibited person possessing an imitation firearm – 10 years. As an alternative, this offence carries a maximum fine of 1,200 penalty units. At present, a penalty unit is $192.31. Accordingly, 1,200 penalty units is almost $230,000;  

(c)   threat to inflict serious injury – 5 years.  

Gravity

39The next thing I would look at is the gravity or seriousness of your offending and your blameworthiness.

40You entered the victim's room intending to assault him. You were angry with him because of your belief he had assaulted your mother some time earlier and the police had done little about it. You were armed with a knife. It is fortunate he was not present. You even told Ms Cameron of your 'violent and homicidal ideation at the time of offending'.

41This is a serious example of the offence of aggravated burglary. For the purposes of that offence, the fact the victim was not present is immaterial. It is your intention as you entered his bedroom which is essential. It was to assault him, and you were armed with a knife. If he had been present and you had assaulted him or attempted to do so, then that action would have been the subject of a separate charge.

42Apart from the Bugmy considerations, which I will discuss shortly, there is nothing in the circumstances leading up to this offence which reduces your culpability. You knew you had problems with anger. You knew you offended in the past after drinking alcohol and using drugs to excess.

43The imitation firearms were found in the wardrobe of your bedroom. Although not described in the prosecution's opening, with your consent and that of the prosecution, I have looked at the photographs in the prosecution's brief of evidence. They show the firearms and where they were found in the wardrobe. There they were in boxes. In one photograph, they appear to be lying under a model of a motor vehicle.

44You bought these firearms in Queensland. Your counsel submits you were unaware of their illegality in Victoria. Whether they are legal or illegal in this State is beside the point, your possession of them is criminalised because of your criminal history. You were a prohibited person. I accept they were rarely used by you recreationally and not for any criminal activity or for your protection.

45The possession of imitation firearms by prohibited persons is forbidden. So much so, in 2012, Parliament dramatically increased the maximum penalties from 240 penalty units or 2 years' imprisonment to 1,200 penalty units or 10 years' imprisonment[2]. The purpose of this change was to provide a stronger deterrence[3]. Deterrence has two aspects: to deter you and to deter others from committing that offence or similar offences.        

[2] Control of Weapons and Firearms Acts Amendment Act 2012.

[3] Minister’s Second Reading Speech. Hansard, Legislative Assembly, 7 December 2011 at p 6213.    

Guilty pleas

46This proceeding came quickly to a plea hearing. From the filing hearing in the Magistrates' Court, it reached a committal case conference, which is the equivalent of a committal mention hearing for the offending in Charge 1. You were committed on the basis of the prosecution's brief of evidence. There was no committal hearing. In this Court, it proceeded to a plea hearing. In terms of the timing of the entry of your guilty pleas, they occurred at the earliest reasonable opportunity.  

47By pleading guilty, you have taken responsibility for your offending. Your guilty pleas have the practical effect of assisting the criminal justice system. It creates room for those proceedings which genuinely require a jury trial. It relieves witnesses of the burden of giving evidence in this Court, especially the victim.    

48Even though the problems caused by the virus to the criminal justice system have lessened, they have not disappeared. The sense of crisis expressed by the Court in Worboyes v R[4] has also lessened. Nevertheless, this Court is still faced with the backlog of cases arising when there were no jury trials during the period of greatest restrictions. To an outsider, these considerations may seem irrelevant. However, they are not. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.

[4][2021] VSCA 169.

49Your guilty pleas deserve a significant discount on the sentences which would have been imposed in their absence.

Bugmy

50You rely upon the principles stated by the Court in Bugmy v R[5]:

'…The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending'.

[5][2013] 249 CLR 571 at [43].

51These observations were influenced by the particular facts of Bugmy’s case. The underlying reason for assessing the consequences of a person's upbringing was made clear in DPP v Herrmann[6]:

'It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years'.

[6][2021] VSCA 160 at [46].

52In Sabbatucci v R[7], the Court explained the elements requiring evaluation:

'Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending'.

[7][2021] VSCA 340 at [6].

53In Newton v R[8], the Court noted in Bugmy’s case there were two ways in which childhood deprivation may be relevant to the assessment of moral culpability: the general and the specific.

[8] [2023] VSCA 22 at [36].

54The general was captured in this passage[9]:

'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way'.

[9]Bugmy at [40].

55And the specific[10]:

'An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender'.

[10]Bugmy at [44].

56In your case, in the passage I quoted, Ms Cameron described in considerable detail your psychological make‑up, the origins of which she traced largely to your early years. You are the product of an unfortunate upbringing. It is not one of 'profound deprivation' but 'remains relevant to the determination of the appropriate sentence'. Both the general and specific are captured in your case.

57From the perspective of moral culpability, the damage to you results in a moderation of my sentences.

58Paragraph 44 of Bugmy’s case highlights the potential for the consequences of childhood deprivation to engage the punitive purposes of sentences. Here, there is the coming together of circumstances, leading to a potentially dangerous situation where you, a violent person, substance affected, believing the victim had sexually abused your mother who had died recently and whose funeral you attended only days earlier, armed with a knife, forcibly entered his room with intent to assault him. Fortunately, he was not in the room. Those circumstances engage the sentencing purposes of specific deterrence and protecting of the community from you. To what extent depends largely on my assessment of your prospects of rehabilitation.

Prospects of rehabilitation

59Your counsel submitted your prospects of rehabilitation are guarded. That is another way of submitting they are uncertain. He submitted you are likely to re-offend unless supported in the community by the therapeutic services attached to a community correction order. He drew my attention to entries in your clinical records while you have been custody.

60The offending occurred while you were subject to a community correction order. In fact, you were seeking to vary it to allow for the completion of a condition of the order. A report accompanied the application[11]. Despite failing to attend 13 appointments over 3 conditions of the order, your engagement was considered satisfactory overall.  

[11] Report dated 29 November 2022.    

61You completed a remote anger management programme. Clearly, during your supervision appointments, you were able to identify strategies to use when you feel angry, for example, breathing techniques and removing yourself from high-risk situations. In light of this offending, what you learnt in this programme and the discussions at supervision appointments were insufficient to overcome the anger you felt on this occasion and what occurred afterwards. To that point, the depth of your problems was too much to be overcome by the measures offered under the order.

62You rely on seven entries in the clinical records of your treatment while in custody between February and July 2023. Each records an attendance upon a psychiatric nurse. It appears you are taking a medicine which controls your anger. You gave two examples of reacting rationally rather than angrily. You acknowledge the link between drinking alcohol and committing crimes.

63You are a qualified bricklayer. Your brother, Brendon, has employed you in his business. You were a team leader in the business and, according to your brother, 'a massive part' of the business. On your release from custody, you intend to return to the business.

64In custody and during the community correction order, you showed positive signs of rehabilitating yourself. Yet you failed so dramatically in December 2022.

65Finally, the sentence I will impose should act as a strong deterrent to future offending and may encourage you to continue your rehabilitation. At present, I too consider your prospects of rehabilitation are uncertain.

Verdins

66You rely upon principles or limbs 4 and 5 of the case of R v Verdins[12]. They provide:

'4, ….  Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5, The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.'

[12] (2007) 16 VR 269.

67You rely on paragraph 90 of Ms Cameron's report. In saying imprisonment would weigh more heavily upon you, she assumes you will not receive appropriate treatment for your post-traumatic stress disorder and the comorbidities. Judging from the clinical records that is unlikely to be so. Again, she speaks of the volatile nature of the prison environment, which is true, but again, judging from those records you appear to be able to cope without decompensating or reacting disproportionately. Nevertheless, you suffer from conditions, the essential component of which is anxiety. A prison is an unpleasant place at the best of times. Suffering anxiety at the level of a recognised disorder would make your experience of imprisonment more burdensome than for someone without those symptoms.     

68I consider principle 5, but not principle 4, applies.

Current sentencing practices

69Neither counsel drew my attention to comparable cases in an attempt to understand current sentencing practices. That is understandable for the circumstances of aggravated burglaries vary enormously.

Disposition

70Your counsel submitted I should impose what is known as a combination sentence, that is, a sentence of imprisonment combined with a community correction order. There are now significant limitations on the length of imprisonment a court can impose if it adopted that course. The limitation is too great to enable me to impose an appropriate sentence on the charge of aggravated burglary in your case.  

Sentence

71On Charge 1, the charge of aggravated burglary, you are sentenced to 3 years and 9 months' imprisonment.

72On Charge 2, a charge of threatening to inflict serious injury, you are sentenced to 9 months' imprisonment.

73On Charge 3, a charge of being a prohibited person possessing an imitation firearm, the gel blaster, you are fined $500.  

74On Charge 4, a charge of being a prohibited person possessing an imitation firearm, being an imitation pistol, you are fined $500.

75The sentence on Charge 1 is the base sentence. 3 months of the sentence on Charge 2 will be served cumulatively upon the base sentence. The total effective sentence is 4 years' imprisonment. I will fix a non-parole period of 2 years and 8 months' imprisonment.

76I will declare your 278 days of pre-sentence detention (excluding today) as time served under my sentences.  

S 6AAA  

77If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total sentence of 5 years and 6 months' imprisonment and fixed a non-parole period of 3 years and 6 months' imprisonment.

78I will refer the fines to Fines Victoria for collection.

Forfeiture order  

79I will make the forfeiture order in the terms sought.

‑ ‑ ‑