R v Hollaway - [2016] NSWCCA 166

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Hollaway [2016] NSWCCA 166
Hearing dates: 8 August 2016
Decision date: 12 August 2016
Before: Payne JA at [1];
R A Hulme J at [2];
Adamson J at [45]
Decision:
Crown appeal against sentence dismissed

Catchwords: CRIMINAL LAW – Crown appeal against sentence – attempt to intentionally choke – s 37(1) of the Crimes Act – where offence committed whilst on parole – non-parole period substantially concurrent with service of balance of parole - no error in backdating sentence where parole revoked solely because of index offences – no failure to adequately consider the protection of the community or specific deterrence where previous violent offending occurred in significantly different circumstances – sentence not manifestly inadequate – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) ss 23A, 37(1), 195
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 24, 47
Cases Cited: Barnes v R [2014] NSWCCA 224
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
R v Baker [2000] NSWCCA 85
R v Hollaway [2013] NSWSC 218
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Category: Principal judgment
Parties: Regina (Applicant)
Karyna Hollaway (Respondent)
Representation:
Counsel:
Mr H Baker (Crown)
Ms A Francis with Mr Chhabra (Respondent)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid NSW

File Number(s): 2015/35383
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

27 May 2016

Before:

McClintock SC DCJ

File Number(s):

2015/35383

Judgment

PAYNE JA: I agree with R A Hulme J.
R A HULME J: The Crown has appealed against a sentence imposed in the District Court by McClintock SC DCJ on 27 May 2016 upon Ms Karyna Hollaway ("the respondent").
The respondent was found guilty by a jury of an offence of attempting to intentionally choke Ms Kay Skene so as to render her incapable of resistance. This is an offence which is contrary to s 37(1) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 10 years. I will refer to this as "the primary offence".
The respondent was also sentenced following pleas of guilty for offences of intentionally damaging property and breaching an apprehended domestic violence order (ADVO) (the latter appearing on a s 166 Certificate). These offences are contrary to s 195 of the Crimes Act and s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalties are imprisonment for 5 years and for 2 years and/or a fine of 50 penalty units respectively.
The learned judge sentenced the respondent for the primary offence to imprisonment for 1 year 9 months with a non-parole period of 1 year. He imposed fixed term sentences of 3 months and 1 month for the other offences and ordered that all of the sentences date from 4 November 2015.
Notice of the Crown appeal was filed promptly. It was made clear…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hollaway

Details

AGLC: R v Hollaway [2016] NSWCCA 166
Case: [2016] NSWCCA 166
Decision Date: 12 August 2016

CaseChat Overview and Summary

In the case of R v Hollaway, the respondent was convicted of an attempted intentional choking offence, with the incident occurring while the respondent was on parole. The Crown filed an appeal against the sentence, arguing that it was manifestly inadequate. The appeal was heard in the Court of Appeal, which needed to determine whether the original sentence was correct and whether the trial judge failed to adequately consider the protection of the community or specific deterrence in sentencing the respondent. The Court of Appeal considered the appropriate sentence for the offence, the effect of the respondent being on parole at the time of the offence, and the previous history of violent offending.

The Court of Appeal found that the sentence imposed by the trial judge was not manifestly inadequate, given the specific circumstances of the offence and the respondent's previous history of violent offending. The Court noted that the trial judge had considered the protection of the community and specific deterrence in sentencing, and that the non-parole period was substantially concurrent with the service of the balance of the parole. The Court also found that there was no error in backdating the sentence to the date of the parole revocation, as the parole was revoked solely due to the index offence. The Court of Appeal concluded that the sentence was appropriate and dismissed the Crown's appeal.

As a result of the Court of Appeal's decision, the original sentence imposed by the trial judge remains in place. The Court of Appeal found that the trial judge had appropriately considered the relevant factors in sentencing the respondent and that the sentence was not manifestly inadequate. The appeal was dismissed, and the original sentence remains effective.

Orders