R v Holland

[2022] NSWDC 118

District Court

New South Wales

Medium Neutral Citation:

R v Holland [2022] NSWDC 118

Hearing dates:

28 March 2022

Date of orders:

28 March 2022

Decision date:

28 March 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Orders at [52] – [54]

Catchwords:

SENTENCING – wound person intend to cause grievous bodily harm – domestic violence offence – blight on civil society – repeat domestic violence offender – wound to neck – use of a weapon – children witness to immediate aftermath – victim had a broken leg – vulnerable victim – no contrition – bleak prospects of rehabilitation

Legislation Cited:

Crimes Act1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

DPP v Tennison [2020] VCA 343

McKinnon v R [2020] NSWCCA 106

Morris v R [2007] NSWCCA 127

Ollis v R [2011] NSWCCA 155

Scott v R [2020] NSWCCA 81

Valentine v R [2020] NSWCCA 116

RC v R; R v RC [2020] NSWCCA 76

R v Hamid (2006) 164 A Crim R 179

R v Kelso [2020] NSWDC 157

R v Seymour [2012] NSWSC 1010

R v Tangi (No 12) [2020] NSWSC 547

R v Webb [2004] NSWCCA 330

Category:

Sentence

Parties:

Regina
Troy Anthony Holland

Representation:

Counsel:
Mr Paul Kerr (Crown)
Mr Irving Wallach (Offender)

Solicitors:
Mr Aaron Thomas (Crown)
Mr Timothy Hemsley (Offender)

File Number(s):

2020/00355816

Publication restriction:

Nil

Ex Tempore Judgment

Introduction

1. Troy Anthony Holland was listed for trial on 10 November 2021. He faced an indictment alleging that on 11 December 2020 in Lavington he did break and enter in the dwelling house of Shannon Polmear and committed a serious indictable offence, namely, intimidation, in circumstances of special aggravation, namely, that he did intentionally wound Shannon Polmear contrary to s 112(3) of the Crimes Act1900.

2. The indictment alleged a second count in the alternative, that on the same date and place he did wound Shannon Polmear with the intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900.

3. On the day the matter was listed for trial, the offender pleaded not guilty to count 1 and guilty to count 2, the alternative count. The Crown accepted that plea in full satisfaction of the indictment. The maximum penalty is 25 years imprisonment with a standard non-parole period of seven years. The maximum penalty and the standard non-parole period are important guides in the assessment of sentence. A sentencing judge should steer by the maximum penalty and standard non-parole period but not aim for it.

Plea of Guilty

4. Contrary to Mr Wallach’s submission, asserting that the offender pleaded guilty on 10 September 2021, Court records indicate that in fact on that date he entered a plea of not guilty. He pleaded guilty on arraignment on 10 November 2022. The offender pleaded guilty to the alternative count on the day of his trial. The relevant discount for the plea is 5% in accordance with the Crimes (Sentencing Procedure) Act 1999, pursuant to s 25D(2)(c).

The Facts

5. There is an extensive agreed facts document tendered as part of exhibit 1. I shall endeavour to summarise those facts to provide brevity in this judgment. For the full facts one should refer to the exhibit.

6. At about 8pm on Friday 11 December 2020 the victim was at home with her children when the offender knocked on the closed front gate to the premises. The offender wanted to talk to the children. The victim said he could see the children but could not come inside the house.

7. The children spoke to the offender on the veranda of the house. After about half an hour, the offender went inside the house to the kitchen where he picked up a black-handled kitchen knife. He went to the victim’s bedroom. The victim was on the bed with one of her children. The offender told the child to go outside, which the child did.

8. The victim had a broken leg at the time. She tried to get up off the bed. As she was lifting her head up the offender said “What’s this?” The victim looked up and saw the offender holding the knife in his hand. The victim said, “One of my kitchen knives”. While the victim was endeavouring to get to her feet, the offender cut the victim’s neck with the blade of the knife causing a wound.

9. The victim grabbed her throat and saw blood on her hands. The victim yelled at the offender to get out. The children attended the bedroom and assisted their mother whilst yelling at the offender to leave. The offender put the knife down on a chest in the hallway and sat down on the veranda outside. One of the children locked the front door and yelled at the offender to leave.

10. Emergency services were called and the victim was conveyed to the Albury Hospital.

Objective Seriousness

11. The offence is aggravated by use of the weapon, and by the fact that it occurred in the home of the victim, a place where she was entitled to feel safe. The children were at home at the time. They had to assist their mother and tell the offender to leave after he attacked her. They were witnesses as to the immediate aftermath of his offending behaviour, and I am entitled to take into account this factor as an aggravation: R v Seymour [2012] NSWSC 1010.

12. A wound to a person’s throat is an extremely dangerous attack. Mere millimetres could have resulted in loss of life. This particular wound was not significantly serious or life-threatening. Dr Felicity Leahy described the wound as a “A 5 centimetre anterior neck and superficial cut, the cut has clean edges and had dissected all subcutaneous layers of the skin. It had not transected the deeper platysma layer.” It was an open wound across her neck which required stitches. The intent to cause grievous bodily harm and the location of the wound increases the objective seriousness of this offence.

13. The offender has an appalling record including serious violence and domestic violence offences. He was on conditional liberty for a Victorian offence of intentionally cause injury when he committed this offence.

14. At the time of the offence the victim had a broken leg. It is an aggravating factor if the victim is vulnerable by virtue of their age, disability, geographical isolation or because of the victim’s employment: s 21(2)(l) of the Crimes (Sentencing Procedure) Act 1999.

15. The provision does not purport to be an exhaustive list of circumstances of vulnerability. There are a number of reasons why a victim may be vulnerable: Ollis v R [2011] NSWCCA 155; Morris v R [2007] NSWCCA 127. By virtue of her broken leg, the victim was less able to respond to the attack than she otherwise would have been. She could not run away or fight back. I am satisfied that she was a vulnerable victim for the purpose of s 21A(2)(l).

16. This offending falls slightly below the mid-range of objective seriousness.

Domestic Violence

17. This offending is a serious example of domestic violence. Domestic violence is a blight on civil society. Courts must impose significant sentences to reflect the Court and the community’s concern of the level of domestic violence in the community perpetrated by men against women.

18. There is a need to reflect specific deterrence, general deterrence, denunciation and protection of the community in the sentence imposed.

19. What do I mean by general deterrence? It is the need to protect the public from the commission of a crime by making it clear to other people who may have impulses or inclination to commit the same or similar offences that they will meet severe punishment should they choose to offend. It is to operate as a powerful tool to prevent the commission of similar crimes.

20. No man should strike a woman, nor should he do so with a weapon. To do so is cowardly, abhorrent, and contrary to the rules of civilised society. If you strike a woman you forfeit your opportunity to live in a civilised society. You forfeit the privilege. You must be removed; gaol is the only option for you. Your conduct was humiliating, disrespectful, brutal and an abuse of the relationship of trust between you and your partner. You were aggressive, you were physically stronger than she. You knew that there was no real prospect of spontaneous physical retaliation because of the disparity between you and her because of your strength and you being armed with a weapon.

21. It is the longstanding obligation of the State to indicate the dignity of each victim of violence, to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against a repetition of violence.

22. The criminal law in the area of domestic violence requires rigorous and demanding consequences of perpetrators for the purpose of protecting partners, family members and the wider community.

23. A civilised society is rules based. One of those rules is that men do not attack women or attack them with weapons. If you do so you forfeit the right to remain in the community, you must go to gaol as a result of your uncivilised behaviour.

24. An appropriate sentence must accord due recognition to the human dignity of the victims of domestic violence and the legitimate interests of the general community in the denunciation of domestic violence. You are a repeat domestic violence offender who thumbs your nose at the Courts and the community. Specific and general deterrence are important factors together with the requirement of powerful denunciation and the need for protection in the community: R v Hamid (2006) 164 A Crim R 179 at [86].

25. Your children were at home when you attacked her. What a terrible example you have set for them.

26. You need to go to gaol for a long period of time to protect the victim and the community. Thuggish brutal conduct will not be tolerated.

Subjective Circumstances

27. I have before me a report of Dr Anne Lucas, forensic psychologist, dated 9 March 2022. The offender disclosed to Dr Lucas that he commenced using cannabis at the age of 14 and amphetamines around 16. Mr Holland reports that he began methamphetamine use around 2012.

28. Mr Holland has four children, three of whom are with the victim in this matter. His eldest child is 22 years of age and the offender attributes his amphetamine uptake and use to his eldest child’s mother who was several years older than him when they had been in relationship.

29. I accept on the balance of probabilities that the offender formed the intention to attack the victim after he arrived at the premises and that he did not go to the home with the intention to attack the victim.

30. Mr Holland has suffered extra curial punishment. He was stabbed a number of times in the stomach, chest, forehead and left arm and hand. This attack was inflicted by family members and friends of the victim immediately after Mr Holland’s attack on the victim. The offender was placed in an induced coma and underwent lifesaving surgery.

31. There is a causal connection between the offending and the injuries the offender sustained after being assaulted immediately following this offending.

32. The Crown concedes the offender has suffered extra curial punishment. Where serious injury has been sustained by an offender in the course of an offence the extra curial punishment principle should be invoked in the offender’s favour on sentence: R v Webb [2004] NSWCCA 330.

Prospects of Rehabilitation

33. The offender is 45 years of age with a lengthy criminal history.

34. Mr Holland identified a link between his use of the drug ice and his offending behaviour. He has been on the methadone program for approximately 14 months, and has expressed a willingness to continue with treatment and engage in intervention/rehabilitation. However his substance abuse issues remain largely unresolved.

35. Ms Lucas is of the view that he has several factors in his presentation and history which do suggest the presence of personality pathology, such as antisocial personality disorder.

36. Mr Holland has been assessed as having a high risk of reoffending. In my view his itinerate and antisocial lifestyle makes for bleak prospects of rehabilitation.

Prior Offending

37. The offender has a substantial criminal history in both New South Wales and Victoria, having served periods of full-time imprisonment in both States since the 1990s.

38. In New South Wales, he has a number of convictions for assault occasioning actual bodily harm, which is a ‘serious personal violence offence’ as defined by s 21A(6) of the Crimes (Sentencing Procedure) Act 1999 and is punishable by a term of imprisonment of five years. It is a personal violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007. The present offence is also a ‘serious personal violence offence’. Mr Holland’s criminal antecedents is an aggravating factor pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999.

39. His extensive criminal record disentitles him to any leniency. The concept of specific deterrence plays a role in the sentencing exercise in light of his prior history.

Contrition/Remorse

40. Mr Holland minimised the offending describing the injury as “a little scratch” to the Community Corrections officer who prepared the sentence assessment report. He has “no idea” how this offending has impacted the victim.

41. In fact Mr Holland blames the victim saying that she gave him ice knowing that it makes him angry and erratic. His drug use and the consequences that flow from it are his issues. The victim is not to blame here for his violent attack.

42. Mr Holland is not contrite and shows no insight into his offending behaviour and has engaged in victim blaming.

COVID-19

43. The impact and restrictions of COVID-19 in a prison environment are multifaceted. Both Appellate and Courts of first instance in New South Wales have recognised a variety of species of hardship that inmates presently suffer in the custodial environment, including:

1. The suspension of social and family visits: McKinnon v R [2020] NSWCCA 106 at [32].

2. Restrictions to movement and subsequent isolation of inmates: R v Tangi (No 12) [2020] NSWSC 547 at [57] to [58]; R v Kelso [2020] NSWDC 157 at [46].

3. Negative impacts on wellbeing, including stress and anxiety: Valentine v R [2020] NSWCCA 116; and;

4. The greater risk of infection and serious harm to inmates of advanced years: RC v R; R v RC [2020] NSWCCA 76 at [27] 253 to 255; Scott v R [2020] NSWCCA 81 at [166].

44. Furthermore Courts across the different jurisdictions of the Commonwealth have further recognised additional hardships including work opportunities during the pandemic when available at all are limited: DPP v Tennison [2020] VCA 343 at [36] to [39].

45. I take all those matters into account in coming to what is an appropriate sentence.

Special Circumstances

46. It is submitted that a longer period of supervision is necessary in order for the offender to address his substance abuse and aggression issues.

47. Mr Wallach relies upon paragraphs [42] to [45] and [53] to [55] of Ms Lucas’ report. I do take those matters into account. I accept that Mr Holland will need a high level of support when he is released from custody.

48. I find that there are special circumstances in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act1999.

Sentence

49. The threshold under s 5 of the Crimes (Sentencing Procedure) Act is crossed. No penalty other than one by way of fulltime imprisonment is appropriate.

50. Mr Holland has been refused bail on this matter and went into custody on 11 December 2020. It is agreed between the parties that the sentence should commence from that date.

51. Two subtests of the Wechsler Abbreviated Scale of Intelligence were administered. They yielded a composite score of 71. It fell on the third percentile, suggesting 97% of similar aged individuals would score better. I conclude that there should be some moderation of general deterrence due to him functioning below the normal intellectual line.

52. I sentence Mr Holland to 4 years and 6 months imprisonment. But for the 5% the sentence with rounding down, it would have been 4 years and 9 months, commencing on 11 December 2020. It will expire on 10 June 2025. I impose a non-parole period of 3 years whereby he will be eligible for parole on 10 December 2023. The non-parole period is 66% of the head sentence in accordance with my finding of special circumstances.

53. I make a final apprehended violence order for the protection of Shannon Polmear. The conditions are as follows:

1. He must not do any of the following to Shannon Polmear or anyone she has a domestic relationship with:

1. assault or threaten her;

2. stalk, harass or intimidate her; and

3. intentionally or recklessly destroy or damage any property or harm any animal that belongs to or is in the possession of Shannon Polmear;

2. You must not approach Shannon Polmear or contact her in any way unless the contact is through a lawyer.

3. You must not go within 900 metres of:

1. Any place where the protected person lives; or

2. Any place where they work; or

3. Any place listed here.

54. The order is made for a period of two years. If you are convicted of contravening that order, the maximum penalty applicable is two years imprisonment and/or a fine of $5,000.

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Decision last updated: 20 April 2022