R v Holder
[2019] SASCFC 73
•3 July 2019
Supreme Court of South Australia
(Court of Criminal Appeal)
R v HOLDER
[2019] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
3 July 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - ATTEMPTED MURDER
This is an appeal against the sentence imposed on a conviction for the offence of attempted murder.
On 10 October 2017, the appellant attended at the pharmacy at which the victim (“V”) worked and violently attacked her with a knife which he had concealed under a bouquet of flowers. It was the prosecution case the appellant had planned to kill V, due to V having made a report to the Australian Health Practitioner Regulation Agency (“AHPRA”) regarding irregularities in prescriptions issued by the appellant in his capacity as a qualified medical practitioner.
The appellant argues that the sentencing Judge erred in relation to the following matters:
1. That she sentenced on the basis that the appellant will remain a dangerous man, contrary to the opinion of Dr Raeside.
2. That she erred in also sentencing on the basis that the appellant was not remorseful, contrary to the opinion of Dr Raeside.
3. That there was a general rejection of Dr Raeside’s opinion.
4. These mistakes were brought about by procedural unfairness in the way sentencing submissions and sentence proceeded.
5. That the sentence is manifestly excessive.
Held, per David AJ (Stanley and Parker JJ agreeing), dismissing the appeal on grounds 1, 4 and 7 and refusing permission on all remaining grounds:
1. The sentencing Judge’s remarks in sentencing as to why the appellant committed this crime do not cut across the diagnosis of Dr Raeside that the appellant has a schizoid personality disorder (at [33]-[34]).
2. The sentencing Judge, with all the material and evidence before her (including the graphic CCTV footage), was entitled and justified in the view that the appellant will be a danger to the public (at [35]-[37]).
3. On close analysis, it is clear that the sentencing Judge’s disagreement with the evidence of Dr Raeside is limited to two discrete topics; her Honour did not disagree with the psychiatric diagnosis of Dr Raeside (at [38]).
4. There was no procedural unfairness to the appellant (at [39]-[40]).
5. The sentence imposed on the appellant was not manifestly excessive (at [41]).
Criminal Law Consolidation Act 1935 (SA) s 11, s 23, s 270A, referred to.
R v Holder [2018] SASC 169, considered.
R v HOLDER
[2019] SASCFC 73Court of Criminal Appeal: Stanley and Parker JJ, David AJ
STANLEY J: For the reasons given by David AJ I would refuse permission to appeal on grounds 2, 3, 5, 6 and 8 and dismiss the appeal on grounds 1, 4 and 7.
PARKER J: I would dismiss the appeal. I agree with the reasons of David AJ.
DAVID AJ: This is an appeal against sentence. After a trial by Judge alone, the appellant was convicted of the offence of attempted murder committed on 10 October 2017 at Port Lincoln.[1]
[1] R v Holder [2018] SASC 169.
On 14 November 2018, at the Supreme Court sitting at Port Augusta, the trial Judge announced her verdict and then heard sentencing submissions. On that same occasion, having heard all submissions, the Judge imposed a head sentence of 15 years’ imprisonment with a non-parole period of 10 years backdated to 10 October 2017. The appellant now appeals against the severity of that sentence.
The appellant argues that the sentencing Judge erred in the sentencing process by rejecting certain aspects of a psychiatric report of Dr Craig Raeside, which was tendered at sentencing submissions by the appellant’s counsel. He also argues that as a result of that rejection of Dr Raeside’s opinions, the sentencing Judge was wrong in sentencing on the basis that the appellant showed a lack of remorse for his offending and that he was a danger to the public.
The appellant also complains that there was a lack of procedural fairness during the sentencing submissions in that the sentencing Judge, in rejecting aspects of Dr Raeside’s report, denied counsel having the chance to make submissions or call evidence about the basis of that rejection.
The appellant therefore argues that the sentencing process miscarried. He further argues that the sentence itself was manifestly excessive.
Background
The facts upon which the Judge sentenced are not disputed in this appeal. They are set out in both the Judge’s sentencing remarks and reasons for verdict. I set out the Information in full:
First Court
Statement of Offence
Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brian Holder on the 10th day of October 2017 at Port Lincoln, attempted to murder [V].
Second Count
Statement of Offence
Attempted Aggravated Causing Serious Harm with Intent to Cause Serious Harm. (Sections 23(1) and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brian Holder on the 10th day of October 2017 at Port Lincoln, attempted to cause serious harm to [V], intending to cause her serious harm.
It is further alleged that Brian Holder used an offensive weapon, namely a knife, to commit the offence.
The appellant pleaded not guilty at trial to attempted murder, but guilty to the alternative charge set out above. That plea was not accepted by the prosecution and consequently, consistent with authority, the plea was deemed to have been withdrawn. However, by his plea, the appellant refined the issues at trial to the question of his state of mind when he admittedly attacked the victim (“V”) with a knife.
At the date of trial, the appellant was 69 years of age and was a legally qualified medical practitioner, having graduated from the University of Adelaide in 1972. He is married with one adult daughter and in October 2017 was living in the suburb of Urrbrae with his wife. He has, for many years, worked as a medical practitioner at the Reynella Medical Centre.
V is a 28-year-old female pharmacist who, in 2017, was working at the Terry White Pharmacy in Port Lincoln. In April 2017, whilst carrying out her duties at that pharmacy, she became concerned about certain irregularities in prescriptions given by the appellant to eight indigenous women in Port Lincoln. As a result, V made a report of these irregularities to the Australian Health Practitioner Regulation Agency (“AHPRA”). When V made the report, she was advised by AHPRA that her concerns would be expedited if she authorised the release of her name, which she did.
In June 2017, AHPRA wrote to the appellant notifying him of those concerns and advising him that the Medical Board of Australia had decided to conduct an investigation into them. That letter contained V’s full name. As a result of that investigation, the appellant was advised that certain draft conditions would be placed upon him, limiting his ability to prescribe certain medications. These draft conditions were as a result of V’s notifications.
It was the prosecution case that from that stage onwards the appellant planned to kill V. In assessing the appropriateness of the severity of the sentence, it is important to set out those steps that he then took to bring this about.
It was on 22 September 2017 that the appellant was advised that certain conditions were to be placed upon his registration as a medical practitioner. There was undisputed evidence at trial that on 26 September 2017 he made a booking for a room at the Port Lincoln Hotel for the nights of 8, 9, and 10 October 2017. On 27 September 2017, he caused a booking to be made for a room at the Novotel Barossa Valley Resort, near Tanunda.
On 8 October 2017, the accused checked into the Novotel Barossa Valley Resort. On 9 October 2017, he checked into the Port Lincoln Hotel, having travelled from the Barossa Valley to Port Lincoln. On that same day in the afternoon, the appellant went to the shopping centre in which the Liverpool Street pharmacy is located and the next morning drove past V’s house.
Later on in the morning of 10 October 2017, the appellant called the pharmacy to find out where V was working and then, at around about noon, he went to a florist in Port Lincoln and selected a bouquet of carnations. He then attended at a post office and sent an Express Post package to his wife (among the contents of which was a suicide note). Later on that day, he attended at the reception of the Port Lincoln Hotel and sought assistance in the opening of a package which contained a knife. Then, at around about 5.00 pm while carrying the bouquet of carnations, he entered the Terry White pharmacy on Liverpool Street, Port Lincoln, approached the dispensary, and asked whether V was there. He was told that she was on the phone and would not be too long. When V appeared, the appellant violently attacked her with a knife that he had concealed under the flowers and was only stopped by the effectiveness of V defending herself, together with the actions of a customer who took a hold of the appellant’s belt and pulled on it.
The attack was caught on CCTV footage which was shown to both the sentencing Judge at trial and to this Court. The attack was violent and graphic. It is clear that the appellant was trying to stab V in the area of the throat and neck.
The appellant escaped in his car, having collided with another vehicle. He returned to the Port Lincoln Hotel, where the police later found him barely conscious, plainly having taken a number of insulin injections and some other drugs. A suicide note addressed to his wife and daughter was found in the room.
At trial, the appellant gave evidence and called two character witnesses. In short, his defence was that when he received the AHPRA notification he thought that it would virtually end his practice and that he would most likely kill himself. He said in evidence that he noted the name of the person who made the complaint to AHPRA and that he was a little bit angry but he did not have any feelings about her personally. He gave evidence that, about two weeks before the attack, he thought of going to Port Lincoln to confront the pharmacist and explain to her what effect her actions had had on him. He said that he wanted to make her feel a little bit guilty, but at no stage did he think of killing her or, indeed, harming her. He said that when he went into the pharmacy to confront V he had no intention of using the knife against her and, when giving her the flowers, he really had no recollection of making a decision to take out the knife to stab her. He denied trying to kill her. He said that he only remembered the first stabbing motion.
The trial Judge rejected his evidence beyond reasonable doubt. She found it proved that the appellant went to the Liverpool Street pharmacy with the intention of killing V. The Judge found that he put into action a plan that he had developed over some time and followed it. She rejected his denials to the contrary. She found that he was only prevented from fulfilling his aim by the actions of V and the intervention of a customer.
Having looked at the CCTV footage (exhibit P1 at the trial), those findings are clearly correct. In short, this was a carefully planned attack, carried out for the purpose of vengeance.
Sentencing submissions
Senior Counsel for the appellant at sentencing submissions tendered a report from a psychiatrist, Dr Craig Raeside, dated 10 November 2018. It is to be noted that this was some four days before the verdict was announced and the reasons for verdict produced. By virtue of his plea to the alternative charge (which was not accepted), there was a chance that the appellant was going to be found guilty of, at the very least, a serious criminal offence. The report from Dr Raeside was obviously prepared in anticipation of that.
As Dr Raeside’s report is the focus of much of this appeal, it is important to highlight the more important aspects of it. Dr Raeside set out the appellant’s physical disabilities, namely, he suffers from Type 2 Diabetes and has so for the last 10 years, he has medication for hypertension and high cholesterol, and has had problems with his heart. He also suffers from acute shortage of breath and gastric ulcers.
Dr Raeside then dealt with the appellant’s mental health. In short, he was of the opinion that the appellant qualifies for a diagnosis of “autism spectrum disorder”. His opinion was that, based on the information available to him, the appellant has an “underlying Schizoid Personality Disorder and/or Autism Spectrum Disorder (Asperger’s syndrome)”. He had also suffered bouts of depression. Dr Raeside was also of the opinion that, in the months leading up to the offence, he would diagnose the appellant’s mental state as an “Adjustment Disorder with Mixed Anxiety and Depressed Mood”. Dr Raeside added:
Although Dr Holder has never presented as outwardly remorseful of his criminal behaviour, or the impact on his family, this needs to be seen in the context of his underlying impairments in emotional expression, particularly in interpersonal settings. As is characteristic of him I believe that intellectually he has processed the event in a way that displays regret over his behaviour and the impact on his family and victim. He has never expressed to me concern for the victim as such, but again his appearance of indifference is probably best understood by his Autism Spectrum Disorder and egocentric views. I do not think it represents an antisocial or psychopathic character style. He has not indicated any desire to contact the alleged victim and this does not appear to be an ongoing preoccupation. I do not think [that] he represents an ongoing risk to her.
Dr Raeside proffered the opinion that the appellant was at low risk of further offending, because when this offence occurred there were specific personal and professional circumstances leading up to the offence that are unlikely to be present in the future. In other words, the stressors which applied then will not be present and there is a low risk of reoffending.
It is these two aspects of Dr Raeside’s report, namely, the question of remorse and the question of reoffending that the sentencing Judge took issue with and are a major focus of this appeal.
Sentencing remarks
In dealing with both remorse and risk of reoffending, the sentencing Judge said the following:
That a person with your education, background and record of serving the community could plan and execute this event is extraordinary. It suggests to me that there is some underlying pathology in you which remains undiagnosed. On the face of it, there appears to be a moral dimension missing. Your own evidence that you had always felt unconnected with the world provides some sort of insight as to that. I have been given a report by Dr Raeside which addresses this issue. He diagnoses you as having a schizoid personality disorder and/or autism spectrum disorder. He sees your crime as arising from stressors upon you in the weeks leading up to the crime. Dr Raeside puts the crime down to these stressors and expresses the view that, now they are removed, there is a ‘low risk’ of further offending. I do not consider that Dr Raeside is aware of the full details of your crime. Certainly, he does not have my findings. That is not to criticise anyone, but rather to explain why I cannot accept his opinion, either that you are remorseful or that there is a low risk of reoffending. There was no hint of remorse in your evidence. In my view, the risk you pose in the future cannot be quantified. Whatever the reason for your crime, I have reached the conclusion that you are and will remain a dangerous man.
She also said that the offending was at the higher end of the scale of such crimes. The Judge took into account the appellant’s good character, age and less than robust health leading up to the offending, but was of the view that he was a present danger to the public.
Appeal
There are eight grounds of appeal. I set them out in full:
1.The Court erred in finding that the defendant was “and will remain a dangerous man” which finding was against the evidence and the weight of the evidence.
2.The Court failed to adequately take into account the defendant’s good character.
3.The Court failed to have due regard to hardships the defendant would endure in prison, due to his age, medical conditions and health.
4.The Court erred in rejecting the evidence of Dr Raeside who diagnosed the defendant as having a schizoid personality disorder and/or autism spectrum disorder and adequately taking that condition and his explanation as to its contribution to the offending conduct and risk of offending into account when imposing sentence.
5.The Court erred in holding that the defendant was not remorseful.
6.The Court erred in placing undue emphasis on the deterrent and protective purposes of punishment.
7.The Court failed to accord the appellant procedural fairness (and thereby failed to conduct a fair trial) by reason that the potential findings with a tendency to increase penalty that:
(i) the appellant’s risk to the community was unquantifiable and he was, and will remain a dangerous man;
(ii) the appellant was not remorseful;
(iii) that the opinion of Dr Raeside could be rejected because he was not aware of the Court’s finding as to guilt and was not aware of the full details of the offending were:
(a)not raised with counsel for the appellant prior to the imposition of sentence;
(b)by positively stating to the contrary of (i) that the Court accepted the offending conduct was “apparently out of character”)
such that counsel could call Dr Raeside or adduce other evidence available to the appellant.
8.The Court erred in finding that the weight it could give to the appellant’s lack of offending history, could be reduced by reason of his prescribing conduct as a medial practitioner and his interactions with the regulator, AHPRA.
A single Judge of this Court granted permission to appeal on grounds 1, 4 and 7, and the other grounds were referred to this Court for argument.
However, as the case was argued in this Court, the issues can be distilled down to the following topics. The appellant argues that the sentencing Judge erred in relation to the following matters:
1That she sentenced on the basis that the appellant will remain a dangerous man. The appellant argues that this was contrary to the opinion of Dr Raeside.
2That she erred in also sentencing on the basis that the appellant was not remorseful. The argument presented now is that also is contrary to what Dr Raeside said.
3That there was a general rejection of Dr Raeside’s opinion.
4These mistakes were brought about by what the appellant now claims is a procedural unfairness in the way sentencing submissions and sentence proceeded.
There is also an overarching argument that the head sentence and non‑parole period are manifestly excessive. There is, of course, a merging of a number of these arguments, but I will deal with each in turn.
Lack of remorse
The appellant argues that there was no reason for the sentencing Judge to sentence on the basis of a lack of remorse by the appellant when, on his argument, Dr Raeside with his psychiatric expertise has a contrary opinion. There are two points to be made at the outset. It does not appear that, in fact, Dr Raeside is of the opinion that there was remorse. He said, as indicated above, that the appellant’s appearance of indifference showing lack of remorse is best understood by the appellant’s autism spectrum disorder. Dr Raeside does not at any time or at any stage say that the appellant showed remorse. The sentencing Judge clearly based her view that there was a lack of remorse on the conduct of the appellant at trial, as well as the opinion of Dr Raeside set out above. On her findings, his evidence was clearly fabricated and was hardly the response of a person who was at all remorseful. She was clearly entitled to form that view.
Related to this topic, the appellant further argues that her Honour erred in her sentencing remarks when she said, in trying to understand why a person of the appellant’s education and background could commit such a crime, that “there [was] some underlying pathology in [the appellant] which remains undiagnosed. On the face of it, there appears to be a moral dimension missing”. The appellant argues that this cuts across the opinion of Dr Raeside and is without basis. If one reads the whole of that passage of her Honour’s sentencing remarks, it is clear that her musings as to why such a man could commit this crime do not cut across the diagnosis of Dr Raeside that the appellant has a schizoid personality disorder.
The appellant will be a danger to the public
The appellant argues that this finding of the sentencing Judge is at odds with the diagnosis of Dr Raeside. Dr Raeside’s opinion was, in short, that the stressors which brought about this offending now do not apply and therefore he would be of low risk to the public. Her Honour disagreed and the basis of her disagreement was founded in the careful planning preceding the attack and the very nature of the attack itself. Although those stressors mentioned by Dr Raeside might not exist anymore, nevertheless, her Honour was clearly concerned about the likelihood of any other stressors affecting the appellant to the extent that he would be a danger to the public.
As the trier of fact and the sentencing Judge, with all the material and evidence before her (including the graphic vision on the CCTV footage), she was entitled and justified in holding that view.
In my view, there is no merit in the argument.
The general rejection of Dr Raeside’s opinion
This complaint, in essence, is a part of the first two grounds of appeal, namely, that the Judge sentenced on the basis of lack of remorse and the appellant being a danger to the public. On closer analysis, it is clear that her Honour did not disagree with the psychiatric diagnosis of Dr Raeside. The area of disagreement is in relation to the above two topics and is based upon her view of the evidence. As I have indicated, she was entitled to sentence accordingly. It is to be noted that nowhere in her sentencing remarks or in the dialogue with counsel does she disagree with the psychiatric diagnosis of Dr Raeside.
Procedural unfairness
The appellant argues that the way in which sentencing submissions were conducted by the sentencing Judge amounted to unfairness. The matter was tried in the Port Augusta circuit and the Judge had indicated that after she announced her verdict she would be inviting sentencing submissions and she would sentence. That is, in fact, what happened. The appellant now argues that the timetable set out by her Honour did not allow the appellant’s counsel to address the sentencing Judge if it became clear that she disagreed with aspects of Dr Raeside’s report. In other words, that having tendered Dr Raeside’s report and her Honour sentencing later that day caused unfairness because the sentencing Judge’s remarks, in disagreeing with aspects of the report, came at such a stage that the appellant was not able to deal with those issues. That is as I understand the argument. However, during defence counsel’s submissions, her Honour on a number of occasions clearly indicated that she may not accept Dr Raeside’s opinion, especially about the question about there being a low risk of further offending. Defence counsel was put on clear notice that in relation to that topic her Honour, at the very least, had reservations about Dr Raeside’s opinion. I set out the following passage of dialogue during sentencing submissions:
HER HONOUR: Why should I accept Dr Raeside’s opinion that there’s a low risk of further offending?
MR BOUCAUT: Dr Raeside seems to be saying that there is insightfulness in respect to what he’s done. I accept that Dr Holder was not accepting of an intention to kill and that your Honour has found against him on that, but Dr Raeside seems to have put the offending conduct down to stressors that existed within Dr Holder’s life at that time. Those stressors now don’t exist.
HER HONOUR: Those particular ones?
MR BOUCAUT: Those particular ones don’t seem to exist and he’s done nothing in the past that would indicate a violent disposition. On the contrary; he’s been seen as a gentle, caring sort of a man and this conduct is just remarkably out of character for him.
HER HONOUR: But that submission would have more weight if it was a spur of the moment decision, I suppose, but this was a planned event over a couple weeks.
MR BOUCAUT: I accept that’s your Honour’s finding.
HER HONOUR: That tells against just writing it off as due to stress, even if one could otherwise.
MR BOUCAUT: I am not sure that, with respect, enjoin that proposition. If the conduct is brought about by particular stressors, and those stressors are taken out of the equation, the risk goes, seems to be what Dr Raeside is saying. Your Honour knows that he’s not going to be working again. He’s certainly not going to be anything other than much older when he is eligible for release. The chances of reoffending are remote in the extreme, I would have thought.
HER HONOUR: It’s not as if he had any valid reason to bear the victim resentment. If she had - let’s say, someone had defamed him or had an affair with his wife or done something really insidious then one could understand this, but this is just completely illogical without foundation, out of the blue.
MR BOUCAUT: Yes.
HER HONOUR: So, it seems to me, it’s very difficult to say there’s a low risk of further offending. There might be some new stressors in his life and he will take some set against someone else and act without restraint, conceivably.
In my view, it cannot be said that there was unfairness to the defence as they were clearly well aware of her Honour’s position. That being so, it is very difficult to say what the defence could do in those circumstances. Perhaps calling Dr Raeside to give oral evidence might have been appropriate, but it would seem that that would add very little to his report. In my view, there is no unfairness and her Honour’s view of the material presented by Dr Raeside was open.
Manifestly excessive
The appellant argues that the sentence overall was manifestly excessive, especially due to the previous good character of the appellant and his age, physical infirmities and mental condition. Her Honour took all of those matters into account in her sentencing remarks but came to the conclusion that such factors were outweighed by the seriousness of the offending. There were very few mitigating factors. Despite his ailments, the appellant was an intelligent, educated man who carefully planned what could have been the most horrific outcome out of sheer vengeance. In my view, the sentence was not manifestly excessive.
Conclusion
I would dismiss grounds 1, 4 and 7 and refuse permission to appeal on all the remaining grounds.
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Appeal
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Charge
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Intention
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Sentencing