Hollis v The Queen

[2015] NSWDC 352

District Court

New South Wales

Medium Neutral Citation:

Hollis v R [2015] NSWDC 352

Hearing dates:

14 August 2015

Date of orders:

14 August 2015

Decision date:

14 August 2015

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Appeals allowed

 

Offender sentenced to one year’s imprisonment to be served by way of correction in the community

 

Offender sentenced to imprisonment for period of six months to be served by way of intensive corrections in the community

 Each sentence is wholly concurrent

Catchwords:

CRIMINAL LAW – Severity appeal – Using false document to obtain financial advantage or disadvantage/Possessing identification information to commit or facilitate the commission of indictable offence – Whether appellant suitable for ICO –History of drug addiction – Appellant drug-free

Category:

Principal judgment

Parties:

Cara Hollis (Appellant)
Crown (Respondent)

Representation:

Solicitors:
Macquarie Lawyers    (Appellant)
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2012/319551; 2013/3394; 2014/83604

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Downing Centre Local Court

Date of Decision:

19 July 2013

Before:

Milledge LCM

File Number(s):

2012/319551; 2013/3394; 2014/83604

Judgment

1. HIS HONOUR: This is an appeal against the severity of a sentence imposed by Magistrate Milledge on 10 October 2014 when her Honour was sitting in the Downing Centre Local Court. The orders which her Honour made concerned a series of offences which came before the Court on three different dates.

2. On 19 July 2013, Magistrate Milledge, sitting in the Downing Centre Local Court, dealt with the appellant for six offences. The first offence was using a false document to obtain a financial advantage or to cause a disadvantage. The second offence was using a false document to obtain a financial advantage or to cause a disadvantage. The third offence was possessing identification information to commit or to facilitate the commission of an indictable offence. The fourth offence was using a false document to obtain a financial advantage or to cause a disadvantage. The fifth offence was using a false document to obtain a financial advantage or cause disadvantage. The final offence was another of possessing identification information to commit or to facilitate the commission of an indictable offence. In essence, her Honour imposed a s 9 bond to be of good behaviour for a period of four years.

3. The appellant appealed to this Court and her appeal came on for hearing before her Honour Judge Woodburne on 18 September 2013. My learned colleague allowed the appeal, reducing the duration of the s 9 bond to three years, commencing on 18 September 2013.

4. The appellant appeared before Magistrate O’Brien in the Burwood Local Court on 5 August 2013. On that occasion she had been charged with possessing identification information to commit or to facilitate the commission of an indictable offence. That was the third occasion on which she had committed that offence. The learned Magistrate imposed a s 9 bond for a period of two years.

5. On 10 October 2014 the appellant again appeared before Magistrate Milledge, sitting in the Downing Centre Local Court. On that occasion she was charged with having unlawfully obtained goods in her personal custody. Magistrate Milledge revoked the earlier s 9 bonds, and in respect of the offence she imposed a sentence of imprisonment of six months and passed concurrent sentences of six months imprisonment in respect of each of the offences which had been earlier dealt with by s 9 bonds.

6. The appellant appealed to this Court from the orders directing that she be incarcerated for six months. Initially the appellant appealed against the conviction recorded by Magistrate Milledge on 10 October 2014, but the conviction appeal was not pursued.

7. On 18 February 2015 the matter came before me. I indicated that I ought to impose a sentence of imprisonment of one year. Prior to making that indication, I gave the appellant a Parker warning. Nevertheless she wished to proceed with the appeal, bearing in mind that I also expressed the view that it was appropriate that such a sentence be served by way of intensive correction in the community. I then referred the appellant for assessment as to her suitability for intensive correction in the community. Proceedings were adjourned until 24 April 2015.

8. An ICO assessment report, bearing dated 20 April 2015, recommended that the appellant was unsuitable for an ICO at that time, but sought an adjournment for six weeks in order that further urinalysis be made. Urinalysis had been conducted between 18 February 2015 and 20 April 2015 and returned some positive results and some negative results.

9. The matter could not proceed before me on 24 April 2015 because, firstly, the appellant was unwell and provided to the Court a medical certificate certifying her incapacity to attend Court. I also noted that Community Corrections sought a six week adjournment in order to conduct further urinalysis, and I had before me a report of a general practitioner indicating that psychiatric assessment of the appellant was required. I was also at that time without the remarks on sentence of my colleague, Judge Woodburne. The matter was then adjourned to 12 June. On 6 June the matter was mentioned before me and I adjourned the matter and set it down for hearing today. The reason for that adjournment was that the appellant was about to enter the St John of God Hospital to undergo a residential rehabilitation program to seek to treat her drug addiction.

10. There is now before me an updated ICO assessment report indicating that the appellant is suitable for an intensive correction order. She completed an AOD residential rehabilitation program at St John of God Hospital on 13 July 2015. The appellant was interviewed on 27 July 2015 by Community Corrections and advised the interviewing officer, Mr Stevenson, that she had benefited from the support she had received whilst an inpatient and since completing the inpatient program. However, she did admit that her mental health and emotional issues had become problematic and she was now being seen by a treating psychiatrist who believed that she should undergo hospitalisation for her psychiatric condition. The urinalysis carried out on 27 July 2015 was found to be negative. A report made by Dr Maree Chanter, a consultant psychiatrist practising at the St John of God Medical Centre at Burwood, confirms that the appellant is an inpatient under her care in the anxiety and depression program, a three week inpatient program. The report from Dr Chanter confirms that the appellant successfully completed the AOD inpatient program and had benefited greatly from it. She has continued to attend the St John of God Hospital outpatient program for those who have undergone the AOD treatment program. However, it was decided that the appellant needed inpatient admission for her anxiety in order to give her greater management skills for her anxiety condition. The appellant is still undergoing that inpatient treatment although has been given leave to be in court today. It is anticipated that she will be discharged from that three week inpatient program next Thursday, 20 August 2015.

11. The updated ICO assessment report indicates that the Burwood Community Corrections community service organiser has confirmed that the appellant can start an ICO once she has completed the current program at the St John of God Hospital. Neither the solicitor appearing for the Crown today, nor the solicitor appearing for the appellant today, object to or wish to make any further submissions about my imposing an ICO for a period of one year commencing on 20 August 2015. I shall do so.

12. Before me are remarks on sentence made by Magistrate Milledge and by my colleague Judge Woodburne. Those remarks on sentence were addressed personally to her. It is not my practice to use the second person when imposing any sentence. In light of the “lectures” delivered to the appellant by my learned colleague and by Magistrate Milledge, it would avail little my repeating their “admonitions” to her. Suffice to say that I am gratified that we have reached the present position.

13. The appellant is now drug free. She has undergone the three week residential program to wean her from her addiction to alcohol but, more importantly, other drugs, in particular crystal methamphetamine and her psychiatric illness has been the subject of treatment and when the treatment is completed life should be more comfortable for her.

14. She has now been living at home with her parents for some time in a stable and caring environment. She has found herself a worthwhile business giving her employment and that business flourishes when she is able to attend to it. All that has stopped her attending to it are the need to undergo residential treatment courses for her drug addiction and for her mental illness. It is in the long term interests of the appellant, the community in general and the government that offenders rehabilitate themselves. Much crime in our community results from drug addiction. If the appellant stays off drugs, I am confident she will not offend again.

15. However, I must point out to the appellant this is her last chance of staying off of drugs. The offences which she has committed in the past are serious. She has been “lectured” on that by Magistrate Milledge and by Judge Woodburne. I need only point this out: if the maximum penalties for each of the offences for which the appellant has been dealt in the Local Court were applied she would have been sentenced to eight and a half years imprisonment. A large number of the offence are indictable. If she had been dealt with in this Court for all her offences, and if the maximum penalties were applied, she would have been incarcerated for some 43 and a half years.

16. If the appellant does not comply with the intensive corrections order, it will be revoked by the Commissioner for Corrective Services and there is no recourse to this Court or to any court. If the ICO is broken a week after it is imposed and is revoked by the Commissioner for Corrective Services, the appellant will spend the next 51 weeks in gaol. If she successfully completes the ICO but again offends, it would be almost impossible for any judicial officer not to impose a sentence of imprisonment if the offender again commits any serious criminal offence.

17. I am gratified that we have reached the stage we have, but the offender must realise that she must maintain her abstinence from drugs, comply with the ICO and stay away from crime.

18. For those reasons I allow each of the appeals. In respect of each of the offences for which the appellant currently stands for sentence, I order that the offender serve a sentence of one year’s imprisonment to be served by way of correction in the community. The intensive correction order will commence on Monday 24 August 2015.

19. HIS HONOUR: Is the form of that order all right? We don’t have standard for ICOs?

20. SERCOMBE: I think it’s suitable if your Honour makes the mandatory conditions or imposes the mandatory conditions, but may I raise--

21. HIS HONOUR: If they’re mandatory I don’t need to impose.

22. SERCOMBE: Yes, your Honour. I just wish to raise one matter with your Honour and obviously a matter for your Honour's discretion, but I have a concern in relation to the penalty of the goods in custody offence given that the maximum penalty is six months imprisonment that there is a lengthy--

23. HIS HONOUR: Yes, you’re right.

24. CARROLL: Perhaps they could be concurrent intensive corrections orders.

25. HIS HONOUR: Yes.

26. In respect of the appeal from the sentence imposed by Magistrate Milledge on 10 October 2014 in respect of H54056876, the sentence is a period of six months imprisonment to be served by way of intensive corrections in the community. Each sentence is wholly concurrent.

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Decision last updated: 08 February 2016