R v Holliday
[2015] ACTSC 222
•24 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Holliday |
Citation: | [2015] ACTSC 222 |
Hearing Date(s): | 15 April 2015 |
DecisionDate: | 24 July 2015 |
Before: | Burns J |
Decision: | See [25]-[29] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – Particular Offences – offences committed while in custody –incitement to kidnap – attempt to intentionally pervert the course of justice – s 72 of the Crimes (Sentencing) Act 2005 (ACT) – whether sentences are to be served consecutively – principle of totality. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 72 |
Cases Cited: | TM v Karapanos and Bakes [2011] ACTSC 74 |
Parties: | The Queen (Crown) Aaron James Holliday (Offender) |
Representation: | Counsel Mr S Drumgold (Crown) Mr R Livingston (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Pappas, J. - attorney (Offender) | |
File Number(s): | SCC 10 of 2014 |
BURNS J:
Background
Aaron Holliday, on 16 September 2014, you were arraigned before a jury on an indictment dated 24 January 2014 and you entered pleas of not guilty to all five counts on the indictment. On 23 September 2014, you were found not guilty by a jury of counts 2 and 3 but guilty of counts 1, 4 and 5. Counts 2 and 3 were allegations of incitement to murder. Counts 4 and 5 were counts of incitement to kidnap AA and RO, respectively. Count 1 was a count of attempting to intentionally pervert the course of justice.
Each of the charges of which you were convicted carries a maximum penalty of 7 years' imprisonment, 700 penalty units or both. I am satisfied of the following facts.
The offences
In May 2010, you were on remand in the Alexander Maconachie Centre awaiting sentence for sex offences against two males. These males were the brothers of AA and RO, respectively. You had entered pleas of guilty to those charges. You incited another inmate of the Alexander Maconachie Centre, Darren Powell, to kidnap AA and RO or to arrange for them to be kidnapped.
The purpose of this kidnapping was to force them to recite a prepared script designed to exculpate you of the offences for which you were awaiting sentence and to record that recitation. Your plan was to then provide the recording to your lawyer and apply to withdraw your pleas of guilty. It was your hope that the Director of Public Prosecutions would then withdraw the charges in the light of those recordings. In pursuit of your aim, you prepared a number of written documents seeking assistance with your plan and setting out the scenarios you wanted the proposed victims to recite while being recorded. You attempted to enlist Darren Powell in your plan, urging him to arrange the kidnappings and the recording of the false scenarios.
The jury’s verdicts mean that they clearly rejected your evidence in which you denied formulating any such plan and attempted to explain the written documents which were located by police. This is unsurprising, as your explanations were absurd. In particular, I reject the proposition that it was Darren Powell who approached you in the Alexander Maconachie Centre with the suggestion that he could fix your legal problems, that you prepared a number of documents at the direction of Darren Powell and that the handwritten documents located in your cell were notes for a work of fiction you proposed to write.
Consideration
I note that you have a criminal history. On 20 November 2010, you were sentenced to terms of imprisonment by Refshauge J for two offences of possessing child pornography, seven offences of sexual intercourse with a child under the age of 16 but over the age of 10, one offence of committing an act of indecency on a person under 16 years of age and one offence of theft. Refshauge J sentenced you to an aggregate term of 16 years and 6 months' imprisonment with a non-parole period of 7 years.
On appeal, this was reduced to an aggregate term of eight years' imprisonment commencing on 9 April 2009 and expiring on 8 April 2017 with a non-parole period of five years and six months commencing on 9 April 2009. The offences for which I must sentence you occurred before you were sentenced by Refshauge J but after the commission of the offences that were before Refshauge J. The current offences were part of a plan to avoid sentence with respect to the offences before Refshauge J.
A Pre Sentence Report was not specifically prepared for sentence in this matter. Your counsel was content to rely upon the material contained in a Pre Release Report dated 30 August 2014, prepared by ACT Corrective Services for the Sentence Administration Board presumably for the purposes of considering an application for release on parole with respect to the sentences imposed by Refshauge J.
I note that you are now 29 years old and that you were born in Darwin in the Northern Territory. You are an only child and you were sent to boarding school at an early age. You reported that you were subject to physical and sexual abuse during the time you remained at boarding school. You told the author of the Report that your education suffered due to the ongoing abuse at boarding school and you left upon completion of year 10. You later completed year 12 at the Canberra Institute of Technology. Since leaving school, you have completed certified IT operating systems and software courses. You have worked in various industries. You were working in the IT industry during the period of the offences for which you were sentenced by Refshauge J.
Your parents separated when you were at boarding school and you believe that you spent some time living with your father on the Gold Coast. You came to the ACT for employment and remained in the ACT until you were incarcerated. While you were on bail in the ACT, you reported living with your mother. You reported that you remain very close to both your parents, however, neither at the time of the preparation of this Report were living in the ACT and you had little opportunity for close contact. You nevertheless maintained regular contact by telephone and email with occasional visits.
The Report notes that there was no evidence of you using illicit substances and you asserted only minimal alcohol consumption. There were no reports of ongoing mental or physical health issues. The Report does note that you had intermittent contact with Mental Health Services in the second half of 2014 at the Alexander Maconachie Centre due to situational stresses and adjusting to custody. I note that, at the time of the preparation of the Report, you held a minimum security classification.
You told the author of the Report that, after arriving in the ACT, you had success in finding employment and also financial security but you struggled to establish a network of supportive relationships. You believed that there was something wrong with you and you felt powerless to influence this. You said that you experienced a downward cycle of negative and confusing thoughts.
Whilst you understood that the offending behaviour for which you were sentenced by Refshauge J was illegal, you justified it as a private matter. Nevertheless, you reported that you felt awful and disgusted by what you had done. You said that you did not want to be in a position where you would act again in a similar way. You told the author of the Report that you wanted to pursue a balanced life and avoid practices and behaviour that did not provide balance.
The Report notes that you have completed a number of vocational certificates in the Alexander Maconachie Centre. You were reported to be an active art student from 2009 to 2013 and you won an award for your art in the 2012 Prison Fellowship. In November 2013, you completed the Positive Lifestyle Program and you also participated in the Adult Sex Offender Program, although you had not completed the program at the date the Report was prepared. As part of that latter program, you made connections between your early sexualisation and exposure to child pornography and your later offending behaviour. The author of the Report noted that you had not attempted to overtly justify your offending because of your personal experience as a victim and you appeared to be genuinely seeking to understand your motivation.
I was also provided with a Report prepared by Dr Stephen Allnutt, a forensic psychiatrist dated 26 March this year. It is clear that you told Dr Allnutt many of the same lies that you told the jury about your relationship with Darren Powell and, in particular, that you felt intimidated by Darren Powell. Dr Allnutt expressed the opinion that, at the time he saw you, you did not manifest active symptoms of a major psychiatric problem such as a major depressive disorder, cognitive psychosis or anxiety disorder.
You described some mild depressive symptoms consistent with a chronic adjustment disorder with a depressed and anxious mood secondary to your current circumstances. He noted your history of sexual abuse, which he believed would have had a significant impact on your developing self-esteem and confidence. You described a number of depressive symptoms at the time of your offences, including poor sleep, reduced appetite, fluctuating energy levels, reduced motivation, poor self-esteem, loss of interest in activities, anhedonia and poor concentration. This would be consistent, he felt, with a depressive episode.
Dr Allnutt ruled out the view that you were living in two worlds at the time of these offences and he would not have diagnosed you with a psychotic disorder. With depressive symptoms active at the material time, he considered that you would have had a mental impairment, being depression, at the time but not to the extent that you had a defence of mental impairment. He recommended that you continue to engage in psychological therapy.
You maintained pleas of not guilty to the charges which the jury found proved. That was your right. The sentences that I impose must not be increased because of your pleas of not guilty, but you are not entitled to any reduction in sentence that would have followed pleas of guilty. I am satisfied that you have demonstrated no remorse for your actions with respect to these offences. These offences occurred whilst you were in custody.
Section 72 of the Crimes (Sentencing) Act 2005 (ACT) provides that, unless I make some other order, the sentences for these offences, being offences committed whilst you were in lawful custody, are to be served consecutively with your existing sentences. Sentencing for these offences was delayed whilst I received written submissions from the parties about the application of s 72 and, in particular, whether it operated to negate the operation of the principle of totality.
Your counsel, Mr Livingston, helpfully provided me with a number of authorities. In the case of TM v Karapanos and Bakes [2011] ACTSC 74, Refshauge J expressed the view that s 72 (2) of the Crimes (Sentencing) Act does not express a legislative preference for accumulation of sentences, but are simply empowering provisions necessary because of the common law. His Honour went on to say that the section is not a legislative direction to make sentences for offences committed whilst in custody primarily consecutive. The approach to sentencing in these circumstances, he said, may be differently influenced but the discretion is still wide.
I gratefully accept his Honour’s exposition of the law. It follows from his Honour’s decision that ordinary sentencing principles, such as the principle of totality, are applicable to the sentencing process that I must undertake. I am nevertheless entitled to take into account that this was an instance of offending separate from the offences dealt with by Refshauge J and that these offences occurred whilst you were in custody.
I am satisfied that there was never any risk of your plan being carried out, but that does not significantly mitigate your offences. The verdicts of the jury mean that they were satisfied that it was your intention that the kidnapping, and preparation of false evidence, would be carried out. This is serious criminal offending designed to corrupt the judicial process. It calls for sentences of imprisonment and I am satisfied that nothing less than sentences of immediate imprisonment would be adequate to appropriately punish you, to deter you from committing further offences and deter others from committing like offences.
Your continuing denial of responsibility demonstrates that personal deterrence is an important sentencing consideration in this case. Your prospects for rehabilitation must be guarded. You have progressed well in custody but your continuing denial of responsibility for these offences is concerning. I accept that it is appropriate that there be a large degree of concurrency between the sentences I am to impose, but it is also inevitable that there will be a large degree of accumulation between those sentences and the sentences imposed by Refshauge J.
Each of the offences currently before me carries the same maximum penalty. There is little difference, in my opinion, between the objective seriousness of each offence.
Sentence
On count one on the indictment, the charge of attempting to intentionally pervert the course of justice, I record a conviction and you are sentenced to 18 months' imprisonment commencing on 9 June 2016 and expiring on 8 December 2017.
On count four, the charge of incitement to kidnap AA, I record a conviction and you are sentenced to 18 months' imprisonment commencing on 9 December 2016 and expiring on 8 June 2018.
On count five, the charge of incitement to kidnap RO, I record a conviction and you are sentenced to 18 months' imprisonment commencing on 9 June 2017 and expiring on 8 December 2018.
The aggregate sentence which I have imposed is therefore one of 30 months' imprisonment. I have made this aggregate sentence partially consecutive and partially concurrent with the sentences imposed by Refshauge J.
I set a new non parole period commencing on 9 April 2009 and expiring on 8 January 2016.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 12 August 2015 |
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