R v Hollow
[2013] VSC 141
•27 March 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0064 of 2012
| THE QUEEN |
| v |
| GLENN HOLLOW |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2013 | |
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | R v Hollow | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 141 | Revised 27 March 2013 |
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CRIMINAL LAW – Sentence – Manslaughter - Offender pleaded guilty during the running of the trial – Opportunistic offending – Offender suffers from borderline personality disorder – Health issues will make imprisonment more onerous – Specific deterrence – Sentenced to be imprisoned for a term of 10 years with a minimum non-parole period of 7 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC | Office of Public Prosecutions |
| For the Accused | Mr D. Hallowes | Emma Turnbull Lawyers |
HIS HONOUR:
In the afternoon of Saturday 20 April 2011, you and Anthony Lucas attended at 15 Golden Wattle Court, Cranbourne. This was the home of Laurence Grey, the deceased. You did not know Mr Grey but Lucas did.
Two days later, Mr Grey’s body was found in the patio area of his house. He was lying face down and had suffered extensive head injuries, apparently inflicted with a metal post-hole shovel, which was placed nearby. There was also a black nylon strap which formed a ligature around Mr Grey’s neck. Mr Grey suffered multiple skull fractures, bleeding around the brain, abrasions and lacerations to the scalp and face. An autopsy revealed probable below skin neck bruising and petechial haemorrhages on the left lower eyelid. Both head and neck injuries were sufficient to cause death.
By your plea of guilty to the charge of manslaughter, you admit participation in Mr Grey’s death. You admit striking some blows, and being complicit in other force applied to Mr Grey. The prosecution have accepted your plea on this basis and I shall sentence you on this basis.
Anthony Lucas was a friend of yours. You had driven down from Sydney on 16 August 2011 to visit your sister Susan. You met up with Lucas at or near your sister’s unit in St Kilda. You slept in your respective vehicles for some days leading up to Saturday 20 August 2011.
The evidence suggests that by the Saturday you were very short of money. You sent two SMS messages on the Saturday morning stating you ‘were in a tight spot’ and sought to borrow $50 from each recipient of your message. On the Saturday afternoon you and Lucas, for some reason in separate vehicles, travelled to Mr Grey’s house. Lucas and Mr Grey used heroin. Mr Grey supplemented his income by trafficking in cannabis. Lucas stated in his evidence that he purchased some marijuana from Mr Grey. Mr Grey showed you and Lucas vehicles he was in the process of restoring. It is unclear what precisely happened next, although as I have indicated, I accept that you struck some blows and were complicit in others. The forensic evidence indicates that this was a brutal incident during which two instruments of assault were used. You and Lucas left Mr Grey’s house in separate vehicles. You and Lucas contacted each other by mobile telephone shortly after leaving and then extensively throughout the evening. Lucas, in fact, made first contact.
You stole a quantity of cash and marijuana from Mr Grey. A reconciliation of your bank records and expenditure around 20 August 2011 demonstrates that there was about $54 in your bank account on the Saturday morning. An internet payment that day left you with a balance of $1.00. Your requests to borrow $50 on the Saturday morning had proved unfruitful. From 11.00pm on the Saturday, you demonstrated a ready capacity to spend cash. Expenditure of approximately $880 can be traced to you and Lucas; $46.55 in coins stolen from Mr Grey’s house was exchanged by you at a branch of Bendigo Bank. When police arrested you on 23 August 2011 they seized 235 grams of cannabis, also stolen from Mr Grey.
I am not satisfied beyond reasonable doubt that your offending was planned in advance. Nearly half a kilogram of dried cannabis was found at the crime scene, and I consider that had there been prior planning between you and Lucas this large amount of cannabis would have been discovered and stolen. I consider it more likely that your offending was opportunistic. The deceased was a slight, middle-aged man, apparently comfortably off and in the company of two younger, bigger men, both desperately short of money.
You remained mute in an interview with police and have apparently declined to make a statement detailing Lucas’ involvement. Your acceptance of responsibility for the death of Mr Grey came belatedly. You were originally indicted on the charge of murder and pleaded not guilty. Several days into your trial you offered to plead guilty to manslaughter, and this offer was accepted by the prosecution. You had not made any earlier offer to this effect.
You are now 36 years old. You were born and raised in the Ararat region. Your parents are still alive, although your relationship with them is virtually non-existent. Your older brother Raymond died in a car accident when he was twenty-seven and your younger sister Susan was a witness at your trial. Despite the friction this has caused, I accept that you retain affection towards her. You had modest academic ability and left school in Year 10. You joined the army at 15 and over the next three years toured Somalia, Cambodia and Bougainville. At the age of 18 in 1995 you were dishonourably discharged, apparently for assaulting an officer.
You returned to you parents’ home for a time and worked in your mother’s café. In 1996, you were found guilty of car theft and possession of a firearm. Mr Hallowes, your counsel, told me these offences involved your mother’s car and were committed whilst you were contemplating suicide. Certainly the non-conviction disposition strongly suggests that the magistrate proceeded on this basis. I do not regard the fact of that offending as significant, although I do consider that the magistrate’s order that you receive psychiatric treatment as directed is some evidence of a relatively long history of mental instability. Unfortunately, you have received little or no psychiatric or psychological treatment since then.
You moved out of the family home at 22 to live with your partner, Kelly Martin. By this stage, you had been driving large trucks for some years. You have three children with Ms Martin, now aged about 15, 12 and 10. You have had no contact with them since about 2007. I shall return to this.
In 1999 when you were 23, you pleaded guilty to theft and obtaining property by deception at the Melbourne Magistrates’ Court. You were sentenced to two years’ imprisonment wholly suspended and placed on a Community Based Order conditioned that you perform 200 hours of community work and to undergo assessment and treatment for alcohol, drug and psychiatric/psychological issues. This offending involved the theft of approximately $140,000 from your employers.
In 2001, having completed the order, you moved to Queensland with your wife and child. There you found stable employment as an estimator, but apparently aggrieved at being overlooked for promotion, you again stole money from your employers; this time about $100,000.
You were detected, charged and released on bail to appear at the Brisbane Magistrates’ Court. You absconded from this undertaking and returned to Melbourne with your wife and, by then, children. This occurred approximately in 2003, at about the time your youngest daughter was born. Not surprisingly, the marriage was under strain and ultimately failed.
You resumed truck driving and continued using amphetamines to enable you to work for longer periods. You also used amphetamines and narcotics recreationally. I understand you badly injured your back in a truck roll-over accident in 2006. A copy of an x-ray report was tendered, dated 5 July 2007. You underwent a laminectomy and spinal fusion at the base of the lumbar spine. You suffer from significant residual symptoms, and your discomfort during the trial was, I consider, very considerable.
In 2007, as your marriage failed, you entered your wife’s caravan as a trespasser whilst possessing an offensive weapon. You were arrested and charged with numerous offences including aggravated burglary and false imprisonment. You have not seen your children since this time. You were sentenced to a total of 14 months’ imprisonment with a non-parole period of five months. You were remanded in custody upon arrest in February 2007 and remained in custody until July 2007. You were released on parole for a short period and then extradited to Queensland to face the dishonesty charges that I have earlier referred to. On 29 August 2008, you were sentenced at the Brisbane District Court to an effective sentence of 4 years and 6 months imprisonment. You were released in August 2010.
Again, you moved back to Victoria and commenced another relationship, which I understand also failed. You were using and abusing morphine-based painkillers, some of which were prescribed for your back pain. You were also using amphetamines and generally living an itinerant lifestyle. You had been at large for about 12 months when Mr Grey was killed.
Your counsel tendered without objection a letter authored by you and addressed to the court. To the extent that you express your apologies to the family of Laurence Grey, I am prepared to record that fact in these reasons. I am not prepared to accept any attempt by you to pass blame to Mr Lucas. There is an acceptable means by which you could place on record your account of Mr Lucas’ actions. You have declined to offer yourself as a witness, either on the plea itself or in any potential prosecution of Mr Lucas. If you had, your account would be on oath and capable of proper testing in cross-examination. Your failure to assist the prosecution is, of course, not an aggravating feature. It is merely an absence of what would have been a powerfully mitigating feature.
Your actions have caused much grief to Mr Grey’s family. I have read the victim impact statements from, amongst others, his mother, sister, brother, niece and sister-in-law. They have daily reminders of not just Laurence Grey’s absence but the way in which he was killed. These reminders of their loss will endure, as will their grief. I am obliged to have regard to the impact of your offending upon those victims.
Dr Aaron Cunningham, a forensic psychologist, prepared a psychological assessment which was tendered on your plea. He saw you once on 5 February 2013. He states that you are of average intelligence and is of the opinion that you suffer from a borderline personality disorder (BPD) by reason of sexual abuse as a child and emotional disconnection with your parents. Dr Cunningham stated that prison may be more onerous for you because of this BPD, that you ought engage if possible with mental health services in prison, and that you may be more prone to self-harm or suicide than those not suffering from BPD. You are currently in the care of mental health services and have been prescribed antidepressants and sleeping tablets. Mr Hallowes, in a helpful plea, did not seek to argue that any of the other Verdins factors were engaged. I direct that Dr Cunningham’s report be placed on the court file and passed to prison and parole authorities. Dr Cunningham’s report was tendered without objection, and the prosecution did not seek to cross-examine him.
I accept that both your BPD and your ongoing serious back injury will make your imprisonment more onerous than otherwise it would be, and I have moderated the sentence I would have imposed to reflect these factors.
I regard your prospects for rehabilitation as only fair. At 36, you still have time to make something of your life, but it will require considerably more maturity and self-discipline than you have so far displayed. Your mental health issues will require a commitment by you to seek and receive treatment well beyond your release from prison. Your recovery from drug dependence is complicated by the fact that you are currently taking opioid medication for back pain relief. Your prospects for rehabilitation really turn on you being able to deal with your drug and mental health issues.
I consider that the need to deter others from acts of opportunistic violence must assume real weight in this sentencing exercise. The deceased, a diminutive man, was killed in his own home by people he welcomed into it as guests. He was then brutally attacked with at least two weapons. I also consider that the sentencing purposes of denunciation and punishment must also be given weight in this sentencing exercise.
Your prior convictions are mostly for offences of dishonesty, although in 2007 you offended against your former wife in the way I have outlined earlier.
Given that you have served two prior prison sentences, one of which was lengthy and which concluded only 12 months prior to the commission of this offence, I am of the view that specific deterrence must assume some weight in the sentence I am about to impose.
In your favour is the fact that you pleaded guilty; albeit at a very late stage. You are entitled to what is called a utilitarian benefit. I estimate that you have saved the community the inconvenience and expense of about two weeks’ court time. Certain witnesses, including your sister, have also been spared the ordeal of cross-examination. The lateness of your plea, however, means that the benefit that you are undoubtedly entitled to is limited to some degree. I have been unable to detect any genuine remorse. Balancing these competing factors as best I can I sentence you as follows:
Stand up please Mr Hollow.
On the charge of manslaughter, I sentence you to 10 years imprisonment.
I direct that you serve a minimum term before parole eligibility of 7 years and 3 months.
I declare that you have served 562 days, not including this day, by way of pre-sentence detention.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 11 years and 3 months imprisonment with a minimum term before parole eligibility of 8 years and 6 months.
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