Holl v R
[2015] NZCA 67
•13 March 2015 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA433/2014 [2015] NZCA 67 |
| BETWEEN | JANELLE AMANDA HOLL |
| AND | THE QUEEN |
| Hearing: | 16 February 2015 |
Court: | Miller, MacKenzie and Lang JJ |
Counsel: | JHM Eaton QC for Appellant |
Judgment: | 13 March 2015 at 10.00 am |
JUDGMENT OF THE COURT
The appeal is allowed. The minimum period of imprisonment imposed on Mrs Holl is quashed. We substitute a sentence of life imprisonment with a minimum period of 12 years.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
Robyn Grace, aged 43, was murdered on 13 January 2013 by her eldest son, David Holl, aged 19, and his wife Janelle Holl, aged 26. The killing was motivated by Mr Holl’s irrational hatred for his mother and his obsession with violence.
The Holls both pleaded guilty to murder and were sentenced to life imprisonment. It was not in dispute that the murder attracted a minimum period of not less than 17 years,[1] or that that period would be manifestly unjust having regard to guilty pleas and serious mental health problems experienced by both Holls. They were sentenced on the basis that they were equally culpable. Mr Holl’s minimum period of imprisonment, 15 years, was longer than hers, but only because he was also sentenced for other violent offending.
[1]Sentencing Act 2002, s 104.
Mrs Holl now appeals the minimum period of imprisonment of 13 years, six months imposed upon her. She says that she was significantly less culpable than her husband, that she was given insufficient credit for her mental illness, and that she was given too little discount for her guilty plea.
The facts
On 5 January 2013 Mr and Mrs Holl went to stay in Picton with Mrs Grace. This arrangement was to be temporary. Relations quickly became strained, so much so that Mrs Grace slept in her car on the night of Saturday 12 January. On the following day she went into the house with a friend and told Mr and Mrs Holl that they must move out. She then left the house.
Mr Holl told his wife that he intended to kill Mrs Grace when she returned. The summary of facts records that the two planned how they would kill Mrs Grace, either by strangulation or with an axe. This allegation was not accepted by the defence at sentencing. The narrative in the summary of facts was based on Mrs Holl’s video statement to the police, and counsel invited the sentencing judge, Collins J, to view the video. The video interview indicates that the plan to kill Mrs Grace was that of Mr Holl. Mrs Holl acquiesced and agreed to help him because she could see he was adamant, but she did not think it was a good idea and sought to persuade him not to do it “just yet”. Despite the planning, she did not expect the attack which followed when Mrs Grace returned home.
Mr Holl obtained an axe from the carport and placed it in the lounge, prepared written instructions titled “Revenge Plan”, and put the document in a bag with a rope, a length of nylon cord, a roll of masking tape, a pillowcase and a lighter.
When Mrs Grace entered the house Mr Holl seized her and dragged her into the lounge, where he tried to pick up the axe. Mrs Grace broke free and tried to escape. At that point Mrs Holl became involved; she helped Mr Holl to catch Mrs Grace as she fled to the front door and to pull her back into the lounge, where Mr Holl struggled to control her. He yelled at Mrs Holl to “use the axe”. Mrs Holl obeyed. She took the axe and struck Mrs Grace in the forehead, stunning her. That allowed Mr Holl to take control of his mother and possession of the axe. He struck her several times in the back of the head and dragged her to the bathroom, where he and then Mrs Holl struck her repeatedly with the back of the axe.
Mr and Mrs Holl began to clean up and take steps to disguise the crime, but the police had been called by a neighbour and the crime was swiftly discovered. Mr Holl declined interview, but subsequently claimed that he was pleased that his mother was dead and that she deserved to die as she had abused him throughout his childhood. Mrs Holl gave a full account of what had happened.
Between arrest and sentence
Mrs Holl underwent assessment to establish her fitness to plead and whether a defence of insanity might be available.
On 4 February 2013 Dr Julie Norris, a forensic psychiatrist, provided a report. She concluded that Mrs Holl has a long-standing history of bipolar affective disorder type I, complicated by borderline personality traits. Her bipolar disorder was well controlled at the time, but her personality traits were connected to the crime; she exhibits a pattern of becoming quickly and intensely involved in relationships that persist despite serious negative outcomes, including being assaulted or victimised. Such relationships are characteristic of borderline personality dysfunction and are associated with extreme fears of abandonment should the relationship end. There was evidence that Mrs Holl felt trapped and intimidated within her marriage. (Her family had made an approach to mental health services shortly before the murder, seeking help for her.)
Dr Justin Barry-Walsh, a forensic psychiatrist, assessed Mrs Holl at the request of defence counsel. He concluded on 3 September 2013 that her actions may have been accounted for by a tendency to behave in a submissive and obedient way towards her husband and misplaced loyalty resulting from disordered emotional attachment. The relationship with Mr Holl appeared to have been controlling and violent. In a subsequent report he concluded:
… Thus I find further grounds to consider Ms Holl’s involvement in the alleged offending arose to a large extent out of an abusive relationship where she felt dominated, and in the context of a chronic mental illness and marked personality dysfunction which left her vulnerable to exploitation and limiting her capacity to cope with adversity. …
David Holl’s sentencing
Mr Holl pleaded guilty on 14 September 2013 and was sentenced on 7 November 2013.[2] In his case the expert evidence established that he exhibited signs of emotional disturbance from a very early age and has a long history of engagement with psychiatric services. He suffers from a severe personality disorder of a mixed nature including borderline, anti-social, paranoid and dependent characteristics, he is of borderline intelligence, and he has poor adaptive function. Before the murder he had been found to exhibit a fixation with violence and serial killing. His violent fantasies are said to provide him with a sense of purpose and increased self-esteem.
[2]R v Holl [2013] NZHC 2932.
Mr Holl also appeared for sentencing for a separate offence. On 2 January 2013, while in Wellington, he had attacked a man while out walking, striking him from behind with a large rock. He accounted for the attack by saying that he wanted to hurt someone, although not necessarily kill them. He was charged with injuring the victim with intent to cause grievous bodily harm.
Collins J sentenced Mr Holl. Dealing with the facts, he recited that Mr Holl had taken the axe and struck Mrs Grace several times in the back of the head before dragging her to the bathroom where he used the axe to hit her several times in the face and chest until satisfied that she was dead. He recorded that when spoken to by the police Mr Holl stated that he had wanted to kill his mother for ages and said “I killed the bitch with an axe”.
Collins J found for two reasons that the crime attracted a minimum sentence for imprisonment of at least 17 years: it involved calculated or lengthy planning, and it was committed with a high degree of brutality. Mr Holl had formulated a plan to murder his mother and dispose of her body; this included the written “revenge plan” and the assembling of weapons and equipment. He increased the starting point for the minimum period by 18 months for the separate offending, noting that he was unable to impose a cumulative sentence.
The Judge gave Mr Holl a discount of two years for his guilty plea and a further discount of one year to reflect his youth. He recognised that Mr Holl’s personality disorder probably contributed in some way toward his violent behaviour, but noted that any reduction in culpability was offset by a need to protect the community from the risk of reoffending. The discount given for mental health was six months imprisonment.
The Judge concluded that it would be manifestly unjust to impose the 17 year minimum period of imprisonment in the circumstances. He fixed the minimum period at 15 years.
Janelle Holl’s sentencing
Mrs Holl pleaded guilty on 2 May 2014 and was sentenced on 18 July 2014.[3] The presentence report confirmed that she has no previous convictions. The probation officer assessed her risk of reoffending as high, based only on the offence type for which she was appearing. She noted that Mrs Holl was remorseful.
[3]R v Holl [2014] NZHC 1655.
Reciting the facts, Collins J noted that Mr Holl had asked her to help, but also that she had admitted that she wanted to help. She had hit Mrs Grace with the axe and demonstrated the blow at interview: he described the demonstration as frank, unemotive and disturbing. He noted that both offenders had hit Mrs Grace with the axe in the bathroom, recording that in her police interview Mrs Holl had explained how Mr Holl had told her to “finish her”. The judge accepted that Mrs Holl was to some extent functioning under the influence of her husband.
The Judge was satisfied that the 17 year minimum period of imprisonment applied. He acknowledged that the planning was principally done by Mr Holl. In Mrs Holl’s case, the qualifying factor was the brutality of the murder.
The Crown had accepted that Mrs Holl ought to receive the same discount for her guilty plea as Mr Holl had done; she pleaded guilty later, but the delay was explained by mental health processes. However, the Judge gave her a lesser discount of 18 months imprisonment.
She received a six month discount for her mental heath, the Judge reasoning that her culpability was somewhat reduced, but that was offset by a need to protect the community from the risk of reoffending posed by her personality disorders.
He gave a discount of 15 months for previous good character, recognising that Mrs Holl has no previous convictions. She also received a discount of three months for remorse.
The resulting minimum period of imprisonment was 13 years, six months, the same period that David Holl was required to serve for his role in Mrs Grace’s murder.
The appeal
It was not in dispute before us either that the murder qualified on the grounds of brutality for a 17 year minimum period, or that 17 years would be a manifestly unjust sentence in Mrs Holl’s circumstances. No issue was taken with the methodology adopted by Collins J.
Mr Eaton focused on Mrs Holl’s role in the crime, her mental illness, and the guilty plea discount. We will address each of these points in turn.
Mrs Holl’s role
Mr Eaton submitted that the Judge overstated Mrs Holl’s involvement in the planning of the killing. For his part, Mr Pike acknowledged that Mrs Holl did not expect the murderous assault to begin as and when it did, but he emphasised that she must be taken to have known that a murderous assault was imminent, and that she participated fully when the attack began.
Collins J did not distinguish between Mr and Mrs Holl when it came to calculating the sentence. Having concluded that he must begin with a 17 year minimum period, he calculated discounts only by reference to the guilty pleas and personal mitigating factors. He reasoned that while Mr Holl was primarily responsible for the planning, Mrs Holl was an equal participant in the actual killing.
We accept that Mrs Holl played a major role, first subduing Mrs Grace then administering blows which must have contributed to her death. Mr Holl may not have been able to kill his mother without Mrs Holl’s assistance. Nonetheless, she was materially less culpable for three reasons: Mr Holl was responsible for the motive and the planning; although she is older, Mrs Holl was under his control; and he played the major role in the actual killing. When she first struck Mrs Grace with the axe she was acting on his instructions, and the blows she later inflicted were also delivered on his instructions. It is noteworthy that the murder qualifies for a 17 year minimum period in her case on only one ground, extreme brutality. We consider that a distinction ought to have been drawn between the two for these reasons.[4]
Mental health
Substantial discounts may be given for mental health where it reduces an offender’s culpability. In E v R, the Court observed that discounts of between
12 per cent and 30 per cent have been given in such cases.[5] As Mr Pike QC submitted, it is necessary that there be a causal connection between the offender’s mental health and her involvement in the offence.[5]E v R [2011] NZCA 13.
The discount afforded to Mrs Holl for mental health was 2.9 per cent of the starting point of 17 years. The Judge did not explain why that was appropriate, other than to state that the discount was reduced because her mental health problems put her at risk of reoffending.
Mr and Mrs Holl both suffer serious mental health problems, but their situations are by no means comparable. His willingness to use violence was not attributable to Mrs Holl, while her capacity for independent action was impaired by her relationship with Mr Holl. She was in a dependent and vulnerable position and abnormally disposed to obey the instructions of her husband. That materially reduces her culpability.
Further, it is common ground there is no need for a protective sentence in Mrs Holl’s case. Her mental health history does not point to a risk of reoffending. She has no previous convictions and her propensity to form unsatisfactory relationships ordinarily risks harm to her, not to others. We observe that this consideration distinguishes her from Mr Holl, who also experiences mental health problems but presents a very real risk of reoffending.
In the circumstances, we accept that a material discount ought to have been given for mental health.
Guilty plea discount
As noted, the Crown accepted at sentencing that Mrs Holl ought to receive the same discount for her guilty plea that her husband did; that is, two years. In this Court Mr Pike did not resile from that concession. He said only that the discount actually given, 18 months, was within the Judge’s discretion.
We accept that Mrs Holl ought to have received the same discount as her husband. The delay was explained by the need to explore her fitness to plead and the availability of any psychiatric defence. We also recognise that she acknowledged her role in the crime from the outset, in marked contrast to the behaviour of her husband.
Overall assessment
We are satisfied that the minimum period imposed in Mrs Holl’s case was plainly excessive and must be reduced. As noted it is common ground that a minimum period of 17 years would be manifestly unjust in her case. In the circumstances, we begin with a starting point of 17 years and make appropriate deductions for mitigating factors.
We begin by making an allowance for her culpability. As noted, this has two dimensions: her role in the murder relative to that of her husband, and her mental health. These considerations are linked, so we will give a single discount for both of them. We consider that an allowance of a little less than 20 per cent, or three years, is appropriate.
As noted, we consider that a discount of two years for her guilty plea is appropriate.
The resulting minimum period is 12 years imprisonment.
Decision
The appeal is allowed. The minimum period of imprisonment imposed on Mrs Holl is quashed. We substitute a sentence of life imprisonment with a minimum period of 12 years.
Solicitors:
Crown Law Office, Wellington for Respondent
R v McNaughton [2012] NZHC 815 at [59]–[63].