R v Sean Hollis

[2019] NSWDC 139

District Court

New South Wales

Medium Neutral Citation:	R v Sean Hollis [2019] NSWDC 139
Hearing dates:	22 February 2019; 1 March 2019
Date of orders:	01 March 2019
Decision date:	01 March 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence: Aggregate sentence four years and one month. Non parole period two years and one month.
Catchwords:	SENTENCING – a police pursuit – reckless driving – a disturbing incident outside Wollongong hospital – knife and flammable liquids used to prevent apprehension – police assaulted – police vehicles damaged – police dog deployed – police negotiations fail – fire hose deployed – police show extraordinary restraint – offender placed in induced coma – objectively serious offending – significant risk to police and public – maximum penalties considered – early guilty plea – aggregate sentence – mentally ill offender – mental illness defence not raised – family support – offender gives evidence – deprived background – abuse and drug use – extensive criminal history – long period of non-offending – resumption of illicit drug use – regret – moral responsibility low – treatment plan – need for Community Treatment Order – purposes of sentencing.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Attorney General's Application No 2 of 2002 [2002]137 A Crim R 196 Bugmy v The Queen (2013) 249 CLR 571 Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 DPP v De Le Rosa [2010] NSWCCA 194
Category:	Sentence
Parties:	Sean Hollis (Offender) Director of Public Prosecutions
Representation:	Solicitors: Mr P Townsend (for the Offender) Ms T Lasschuit (for the Director of Public Prosecutions)
File Number(s):	2018/00091499

Judgment – Ex TEMPORE REVISED

1. On the evening of Sunday 18 March 2018, a silver Ford Falcon sedan, with no registration plates, was seen being driven in a dangerous manner North through the Kiama bends.

2. Police were alerted and a marked police car, travelling northbound at Albion Park Rail, saw, followed and ultimately, pursued the vehicle. At the time the police commenced their pursuit, the Ford Falcon was travelling at 100 kilometres in the 100 kilometre per hour zone.

3. The Ford Falcon approached Albion Park Rail. It indicated a left‑hand turn and slowed down on the shoulder, but as the police slowed behind it, the Ford Falcon drove off at speed through the Albion Park town area. It was travelling at estimated speeds of over 120 kilometres per hour in that 70 kilometre zone. The Ford Falcon went through Albion Park Rail, along the Princes Highway, before entering the Princes Motorway (M1) at Yallah. At times it reached an estimated speed of 150 – 160 kilometres per hour in that 100 kilometre zone. Other times it was said to be at 160 kilometres per hour. It overtook a vehicle on the shoulder. There are the police pursuit and drive recklessly matters: sequence 3 and sequence 4.

4. The Ford Falcon then went up the off-ramp at West Wollongong, and although it slowed to the speed limit, its behaviour was apparently erratic. I say "apparently" because the vehicle ended up in the car park of the Accident and Emergency area of Wollongong Hospital. It would appear that that is where, so far as he was able to make a rational judgment, Sean Eric Hollis, the driver of the vehicle, was intending to go.

5. Police followed him into the car park and blocked him in. The Ford Falcon stalled near the ambulance bay emergency doors; these are the doors: The police went to the vehicle. They attempted to open the driver's door and arrest the offender. Police smashed the window and tried to get the keys from the vehicle. The offender had a 15 centimetre knife. He was yelling, "Fuck off you cunts", as he swung that knife at the police. He was sprayed with capsicum spray and the police withdrew to a safer distance. They drew their firearms and yelled at him to “drop the knife”.

6. The offender while he continued to hold the knife, produced a jerry can, which appeared to contain a flammable liquid. He dowsed himself in that liquid, saturating himself and the interior of the Ford Falcon. He then picked up a cigarette lighter and threatened to set himself and the vehicle alight; sequence 6, use offensive weapon to prevent detention.

7. The police retreated to a safe distance and continued to urge the offender to leave the Ford Falcon safely, but he continued to hold to the knife in his right hand and a cigarette lighter in his left, saying several times, "Fuck off, I'll fuckin' do it." He stabbed the knife into the vehicle's dash, steering wheel, and internal door.

8. He asked for water and the police gave it to him, but as they went to him, he put his foot on the accelerator, causing the engine of the car to rev loudly. They police threw the bottle of water into the vehicle and stepped back. The offender appeared to become paranoid and aggressive, again revving the engine and swearing at and threatening police. Attempts to calm him failed. He revved his engine again. He attempted to reverse out of the car park, conducting a burnout before ramming a police car and a police caged vehicle that had moved to block the Ford Falcon. Both vehicles were damaged; one's bumper was torn away, the other had a large dent. Police were forced to move out of his way; Use etc offensive weapon to prevent lawful detention sequence 7 and Destroy or damage property sequences 9, and Form 1, sequence 10.

9. In order to prevent the offender escaping forwards, another police vehicle was used to box in the Ford Falcon, however the offender again accelerated his vehicle forwards and towards the police vehicle, colliding with the passenger door and damaging it: Form 1 sequence 8 and 11. Police were then able to use their vehicles to further box the offender in and prevent him moving, although he continued to plant his foot on the accelerator, causing the Ford Falcon’s rear wheels to spin and produce a vast amount of smoke, making it almost impossible to see what was going on. He remained in the driver's seat, holding the knife and a lighter and making threats.

10. Hollis’s behaviour was extremely erratic, going from enraged to calm, enraged again. He continued and threatening police. He continued to brandish the knife. He then got out of the car holding the knife and jerry can. He poured flammable liquid over the roof of the car. He made further threats to stab and kill police, holding the lighter in the direction of the roof of the car. He got out of, and re-entered his vehicle on a number of occasions. Police continued to negotiate with him. At one stage, walked towards police and was shot with bean bag rounds, however these were ineffective. A police dog was deployed, and the offender retreated to his vehicle, kicking the dog while he was doing so. At this stage Tactical Police then deployed a firehose onto him and the car to prevent it being set alight. The police dog took hold of his leg and was, for its troubles, stabbed, but thankfully the vest the dog was wearing prevented injury.

11. Police then were able to rush and secure the offender. While they did so attempted to stab them. They were able to grab him, subdue him. Police suffered what are described as "superficial" injuries, and were treated by hospital staff, in particular, Constables and Kelly and Routledge were injured; sequence 14 and Form 1 sequence 15 and 16.

12. Eventually, having been subdued, the offender was placed on a stretcher and taken into the hospital. He was sedated and placed in an induced coma. He had sustained a puncture wound to his leg, having been bitten by the police dog. Police formed the view that he was under the influence of drugs at the time of his driving and the siege: sequence 5. A further search of the vehicle found some ammunition, shotgun and other rounds, .22 rounds: sequence 17. Also in the car was what is described as a “Molotov cocktail” in a bottle filled with a flammable liquid, which could, if used, have injured persons or property: sequence 18.

13. The Ford Flacon was unregistered; about the only thing Hollis was not charged with, it would appear. Importantly, as a result of his actions, in addition to the considerable distress and harm caused to police; Wollongong Hospital, particularly its Emergency area, had to shut down for a period.

14. Objectively, the offence was one of particular seriousness. As Ms Lasschuit, solicitor for the Director of Public Prosecutions, points out in her submissions, a vehicle was driven at excessive speeds for a considerable distance through southern Wollongong, including through Albion Park Rail. Road users, pedestrians, police, and the offender himself were placed at significant risk. It would appear, and it is accepted that the offender was influenced by some form of drug at the time, which would have impaired his capacity to drive.

15. The incident at the hospital placed not just the offender, but police and hospital staff at serious risk. The matter involved violence and the use of various weapons. The danger to persons and property cannot be underestimated. It takes little imagination to picture what could have happened had the vehicle caught fire and exploded, given an accelerant was used outside the emergency department of a major hospital. Police were injured. Police vehicles were damaged. The total incident occurred over two hours. The police acted with appropriate, in fact extraordinary restraint, and used every tool available to them to prevent the matter escalating further. They are to be commended for their actions this day.

16. Ordinarily when proper regard is had to the maximum penalties available, very, very significant sentences with a focus on general deterrence would be required.

17. The various charges before me cover the incident. Six matters were committed to this Court for sentence; Sequences 3, 6, 7, 9, 14 and 18. There are a further three matters that are to be dealt with on s 166 Criminal Procedure Act 1986 certificate: Sequences 4, 5 & 17.

18. A number of matters are on Form 1s; Sequences 1, 2, 8, 10, 11, 15 and 16. I will have regard to them, when I come to sentence for sequences 6 and 7. I do not sentence for those matters but I take them into account in accordance with the guidance offered by the guideline judgment.

19. The matters for sentence are sequence 3 police pursuit, s 51B(1) Crimes Act 1900; maximum penalty three years imprisonment. Two matters, sequences 6 and 7, of use offensive weapon to prevent lawful detention, s 33B(1)(a) Crimes Act 1900; maximum penalty 12 years imprisonment. One matter, sequence 14, of assault police in execution of duty, s 60(1) Crimes Act; maximum penalty five years imprisonment. One matter, sequence 9 relating to the damage property, police vehicle, 195(1)(A) Crimes Act 1900; maximum penalty five years imprisonment. One matter, sequence 18 possess article in a public place capable of bodily harm, non-firearm, s 93FB(1)(A)(ii); maximum penalty two years imprisonment. The matters on the 166 certificates are drive in a manner dangerous, sequence 4. Drive under the influence of drugs, sequence 5. Possess ammunition, sequence 17.

20. Apart from the ammunition matters, all the s 166 matters if disposed of in the Local Court, carry terms of imprisonment of two years, and the driving matters require driving licence disqualifications. Careful regard must always be had to maximum penalties.

21. Here, it is appropriate that I impose an aggregate sentence. In doing so, I must indicate the appropriate sentence for each matter.

22. The offender pleaded guilty at an early opportunity; every indicated sentence will be reduced by 25% to reflect the utilitarian value of the plea of guilty. The process of accumulation that must occur here will be undertaken in a way so as to not erode the benefit given for those guilty pleas.

23. There must be some accumulation here. There are separate and distinct offences, but there are also many elements of the offending behaviour that are common to the others. The use of the same vehicle, the continuation of the driving offences, the use of the weapons were part of an overall course of conduct, and in a sense, the damage and assault matters are rolled up to reflect what was done. A Judge must impose an overall sentence that reflects the criminality of what was done and the case put for the offender.

24. In structuring the sentence, regard must be had to the various purposes of sentencing. A Court must be conscious, particularly in the process of accumulation, not to double punish, but on the other hand the offender does not get a discount for multiple offending. This is a case where it would be totally inappropriate to simply add each sentence one upon the other. I have sought, in structuring the sentence, to reflect both the purposes of the sentencing and the need for the total criminality to be reflected in the aggravation of sentence.

25. The offences were committed while on bail for common assault and another driving matter. Those are matters I have to take into account in aggregation of sentence.

26. How did it come to this? I have the benefit of a comprehensive Justice Health report, prepared by Dr Dayalan: exhibit B. For the offender there is a helpful and very comprehensive psychosocial report, prepared for the Legal Aid Commission by one of their in-house psychologists, Danielle Castles: exhibit 1. As always, I am assisted by an objective and balanced report from Dr Richard Furst, a forensic psychiatrist of considerable experience, and someone who has the respect of the Court: exhibit 2.

27. There is material to indicate that the offender has used his time in custody well: exhibit 3. And material from his spouse, Lisa McCain, which indicates that he still has strong community support and will have that support while he is in custody and when he is released: exhibit 4. She will stand by him. She told me "When Sean’s well, he’s a big creampuff who loves his family and dotes on myself and our grandchildren, who miss Poppy greatly”.

28. The material before me provides background to how this offence occurred. Without going into all the details set out comprehensively in the report, Hollis, who was born in 1974, grew up in a household where few of the advantages that we expect in the community were provided to him. He was exposed to drug use when very young. His relationship with his father is reported as “complex”. The evidence before me, which was adhered to when Hollis gave evidence today, is that he was subject to physical abuse, parental alcoholism, and sexual abuse when very, very young.

29. His education, his socialisation, was disrupted due to this abuse. He spent much of his young life in the Juvenile Justice system or living by his wits. He took up the use and abuse of illicit drugs when he was very young. It appears he was also suffering from a serious psychiatric condition which plagues him today, and was certainly evident when this offence occurred.

30. He has an extensive criminal history and as a consequence he cannot be afforded the leniency often given to first offenders. He has a criminal record in a number of States, going back to when he was a child; his Children's Court matter can be ignored, it is not admissible technically: s 15 of the Children (Criminal Proceedings) Act 1987.

31. He came before the Local Court for driving matters and larceny in 1992, he has been to gaol; there are drug matters. There are Queensland matters. There are Western Australian matters. There are Tasmanian matters.

32. He was on bail at the time but it would appear that for a considerable period of time, he was capable of leading a law abiding life in the community. All the material before me indicates that that period of law abiding life corresponds to when he was taking his medication and subject to a Community Treatment Order.

33. His relationship with his father is so complex that it could not be summarised in this judgment; it is set out in the report of Dr Furst. He attempted to reconcile with his abuser prior to his father's death. I am prepared to accept his evidence that his father's death set him on a path that lead ultimately to him going off his medication; the lead-up to the offending behaviour on this occasion. It would appear that, as Ms Castles concludes, "he was not in the position of strength, he had two vulnerabilities, schizophrenia and a history of trauma, and combined with his limited personal resources." When he started using drugs as opposed to his prescribed medication, it led to a binge with, as she notes, "dire consequences." In her opinion, his offending is best understood in this context. Hollis was a highly distressed man who was overwhelmed by his past and his mental illness at the time of this offence.

34. Dr Furst, in a comprehensive history, notes Hollis’ long-term emotional dysregulation; a history of paranoid thinking, which was noted when he was examined soon after his arrest. Hollis’ primary diagnosis, he accepts, is one of schizophrenia.

35. Schizophrenia, he says, is a chronic psychotic illness often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, and difficulty in processing information, prominent mood symptoms and bizarre behaviour as a consequence of the illness. It is thought to be a biologically driven condition.

36. Dr Furst also notes, however, that - a matter that is not surprising, given Hollis’ background - that there is evidence of a borderline personality disorder, which typically involves chaotic and unstable interpersonal relationships, self-image, and behavioural disturbances, and can lead to disassociation of periods of psychosis. He notes that this history, particularly the schizophrenia, goes back many, many years, and that as all the material before me indicates, that apparently became emotionally "unstuck".

37. In mid 2017, Dr Furst concludes, having review all the material, that Hollis lost touch with reality, indicative of acute psychosis: “It is highly likely that he was acutely psychotic at the time of the offences … the overwhelming effect of his paranoid delusions and auditory hallucinations on his perceptions of reality and threat from others likely drove his erratic and aggressive behaviour. In my opinion, Mr Hollis most likely believed he had no other alternative course of action. He now regrets his actions, appreciates he was mentally unwell, and has been compliant with treatment in custody. His actions were driven by poorly controlled schizophrenic illness and acute psychosis. I would regard Mr Hollis as being unable to appreciate his actions were wrong, and regard him as not morally responsible for his actions, even though he has accepted guilt at law.”

38. Mr Townsend, solicitor, for the offender, indicates that, as would be expected, advice was given to the offender as to what options he should consider. I accept the submission made that a clear decision was made by the medicated and calm Mr Hollis, that he would not pursue a forensic course, but accept responsibility for what he did. Not just for what occurred on 18 March 2018, but for going off his medication, taking the drugs, and putting himself in the position where the only course available now is for him to be incarcerated.

39. Dr Furst put forward a treatment plan: that in custody he remain under the care of mental health nurses and psychiatrists, and continue with his current treatment and medication. He notes that the use of a depot antipsychotic would be more reliable in relation to future compliance, and that he would benefit from referral to a Corrective Services psychologist who could engage him in Cognitive Behaviour Therapy. Dr Furst also recommends drug and alcohol counselling programs, such as EQUIPS (Addiction). In the community he believes it would be necessary that Hollis receive assistance and a Treatment Plan, which would involve a Community Treatment Order.

40. Dr Furst notes that the custodial setting is inherently stressful, and there are frequent exposures to violence from other inmates, overcrowding, threats and intimidation. Anyone with a serious mental illness such as Mr Hollis; who is prone to periods when he would be unwell, would find the custodial environment more onerous than the theoretical average inmate. As a prognosis, he notes he is presently reasonably stable, with no sign of psychosis, but he will require assertive psychiatric treatment in the future. He has some stability, given his partner has stood by him, and that the period of ten years where he was able to live crime-free in the community is an indicator that it is possible, if appropriately supported, that he could avoid future offending.

1. The purposes of sentencing, in a case such as this, point in quite different directions. A judge does not have to average out those purposes, but must have regard to them all. Sometimes one purpose can be determinative.

2. Ultimately the sentencing exercise is about community protection. Obviously, the community can be protected from Mr Hollis if he as locked up for as long as possible; that way there is no risk of reoffending. But the Court cannot just lock someone away without proper regard to what they have done or who they are. Mr Hollis will be released into the community. If he is released into the community after he has served an adequate portion of his sentence, a portion that does justice to what he did and why he did it, the longer he is supervised in the community, the better; a point made both by Mr Townsend and Ms Lasschuit, for the Director.

3. It is accepted that at the time he committed this offence, he was suffering from an acute mental illness and in the psychotic phase of that mental illness. Ms Lasschuit correctly points out that the fact he was taking illicit drugs at the time is a matter that I have to factor in. If he was not taking the drugs, maybe things would not have been as bad. At the same time as Mr Townsend points out, that he was in a state of complete unreality because of his psychotic illness, and not been taking his medication; this might have led to self‑medicating with other illicit drugs.

4. When sentencing someone suffering a mental illness, the Courts can and should, especially here where the state of a person's mental health contributes to the commission of the offence in a material way, regard that offender's moral culpability as being reduced. Moral culpability can also be reduced when one has regard to the background of this offender; principles that were expounded by the High Court in 2013: Bugmy v The Queen (2013) 249 CLR 571. The community have to understand that the need to denounce this crime, the need to give full weight to the principle of general deterrence, that is signalling to the community by the penalty imposed that they should not do this, really does not apply in a case such as this. The matter has to be approached with understanding. This is a case where this offender is not an appropriate vehicle for general deterrence. It is also clear from the evidence before me that a custodial sentence will weigh more heavily on him than the theoretical average prisoner.

5. Hollis’ illness, however, does not mean that the principal of specific deterrence should not have significant weight. To translate that so that you understand it, Mr Hollis, you have to understand that you are being punished for a number of reasons, and one of the reasons for punishment is to get it through to you that it is simply unsafe for you to not take your medication and not co-operate with treatment plans. The time you have spent in custody has, I am sure, reinforced that, and the additional time in custody is intended to reinforce that. The Court also has to have regard to the risk that you might pose to the community. In DPP v De Le Rosa [2010] NSWCCA 194, and the cases cited there, it was noted that some matters required an increase in sentence to protect the community.

6. This, as Basten JA said in Courtney v R [2007] NSWCCA 195; 172 A Crim R 371, is a case where difficult questions of judgment and assessments of problems which are, to an extent, intractable, arise.

7. I have to have regard to what was done and the harm to the community. I have to give voice to the Court's concerns, that any assault against a police officer is treated with seriousness and warrants significant punishment. The community, and this case clearly indicates it, is dependent to a substantial extent on the courage of police officers for the protection of lives, personal security, and property. The Court must support police in the proper execution of their duties and recognise the significant risks run by police; see Attorney General's Application No 2 of 2002 [2002]137 A Crim R 196.

8. How then to balance and take account of all those factors? Having regard to them, there must be further time in custody. There can be, in the head sentence I impose, recognition of all these factors. The minimum term is the minimum term I have assessed as relevant to all of the purposes of sentencing. I note that the offender has been in custody since 18 February 2018; there must be still a considerable period of custody to serve. That sentence can be moderated to some extent.

Orders

49. In relation to sequence 3, the police pursuit, I indicate a sentence of one year and six months and a disqualification of two years from driving.

50. In relation to sequence 6 use offensive weapon with the Form 1, there will be an indicated sentence of three years imprisonment.

51. In relation to sequence 7, offensive weapon matter, there will be an indicated sentence of two years, three months. Substantial concurrence is warranted in relation to those matters.

52. In relation to sequence 14 the assault police officers, including the matters on the Form 1, there will be an indicated sentence of one year and one month; that was different.

53. In relation to sequence 9, the damage police vehicle, there will be an indicated sentence of six months.

54. In relation to sequence 18, possess dangerous article, there will be an indicated sentence of six months.

55. In relation to sequence 4, the dangerous driving matter, there will be a sentence of three months and a disqualification of two years from driving. You will not be able to drive for two years after you are released.

56. There will be an aggregate sentence for those matters of four years and one month imprisonment. The non-parole period will be two years and one month, to date from 18 March 2018, which means you will be eligible for consideration for released to parole on 17 April 2020. There will be a parole period of two years from that date. The total sentence will expire on 17 April 2022. Your release will be subject not to me, but the State Parole Authority. If you are not safe to be released, you will not be released, and you will have to obey their directions.

57. Sequence 5, the drug driving matter, I deal with the matter pursuant to s 10A; it is inexpedient to impose any other penalty because of the sentences imposed. There will be a driver’s licence disqualification of three months.

58. The possess ammunition I dispose of pursuant to 10A; it is not expedient to impose a fine in that matter.

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Decision last updated: 18 April 2019