Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Hollaway [2017] NSWSC 1000 Hearing dates: 27 July 2017 Date of orders: 27 July 2017 Decision date: 27 July 2017 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. That a registered psychologist and a qualified psychiatrist be appointed to conduct separate examinations of the Defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 8 September 2017; b. The Defendant is to attend those examinations. 2. Pursuant to s 10B of the Act, the Defendant is subject to an interim supervision order, for a period of 28 days, commencing on 16 August 2017. 3. Pursuant to s 11 of the Act, the Defendant is to comply with the conditions set out in the Schedule to the Amended Summons filed on 27 July 2017 for the duration of the interim supervision order. 4. The matter is listed for further mention on 5 September 2017 before Fullerton J to hear the Plaintiff's application to renew the interim supervision order. 5. The matter is listed for final hearing on 13 October 2017 at 10.00am with an estimate of 1 day. 6. The Plaintiff is to file and serve any evidence on which it relies for the final hearing by 5.00pm on 15 September 2017. 7. The Defendant is to file and serve any evidence on which she relies for the final hearing by 5.00pm on 22 September 2017. 8. The Plaintiff is to file and serve written submissions on which it relies for the final hearing by 5.00pm on 29 September 2017. 9. The Defendant is to file and serve written submissions on which she relies for the final hearing by 5.00pm on 6 October 2017. 10. The Defendant is to advise the Plaintiff which experts are required to attend Court to give evidence at the final hearing by no later than 5.00pm on 6 October 2017. 11. Liberty to apply to relist the matter on one days' notice. Catchwords: CRIMINAL LAW – high risk offenders – high risk violent offender - application for extended supervision order – preliminary hearing – interim order made Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119 Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales [2016] NSWCA 57 R v Hollaway [2013] NSWSC 218 State of New South Wales v Manners [2008] NSWSC 1242 State of New South Wales v Pacey [2015] NSWSC 1983 Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Karyna Amy Hollaway (Defendant) Representation: Counsel: G Wright (Plaintiff) M Johnston SC (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2017/169994 Judgment 1. In a summons filed 6 June 2017 the Plaintiff seeks an Extended Supervision Order pursuant to s 5F of the Crimes (High Risk Offenders) Act 2006 (NSW). In the interim, the Plaintiff seeks an interim supervision order pursuant to s 10B of the Act for a period of 28 days commencing on 17 August 2017. The summons also seeks an order pursuant to s 7(4) of the Act appointing two qualified psychiatrists and/or registered psychologists to conduct separate examinations of the Defendant and to furnish reports to the Court on the results of those examinations. 2. Sections 5E and 5F deal with high risk violent offenders and extended supervision orders for such offenders. Those sections relevantly provide: 5E High risk violent offender (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence. 5F Extended supervision orders for high risk violent offenders (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk violent offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk violent offender extended supervision order. 1. Section 5A defines a "serious violence offence". That section provides: 5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to: (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. (3) A serious indictable offence is: (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act. 1. An interim supervision order may be made in the circumstances set out in s 10B. That section provides: 10B Interim supervision order - high risk violent offender The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order. 1. The Defendant is currently in custody until 16 August 2017 in circumstances which will be discussed presently. In those circumstances the application by the Plaintiff has been brought within the time limited in s 6(2) of the Act. 2. On 22 October 2012 the Defendant pleaded guilty to the manslaughter of Alan Truran sometime between April and June 2011. The Defendant had initially been charged with murder but the Crown accepted the plea to manslaughter on the basis of substantial impairment by abnormality of the mind pursuant to s 23A of the Crimes Act 1900 (NSW). 3. On 1 March 2013 the Defendant was sentenced by Price J to a term of imprisonment for five years and four months commencing 10 June 2011 and expiring 9 October 2016 with a non-parole period of three years expiring 9 June 2014: R v Hollaway [2013] NSWSC 218. 4. The Defendant was released to parole on 26 January 2015. 5. On 4 February 2015 the Defendant was charged with attempting intentionally to choke a woman described as KS so as to render her incapable of resistance. KS was a person with whom the Defendant had been in a relationship for some period of time. She pleaded not guilty and was tried before Judge McClintock SC and a jury of 12. On 10 February 2016 she was found guilty of the offence. 6. On 27 May 2016 Judge McClintock sentenced her to a period of imprisonment of one year and nine months commencing 4 November 2015 and expiring 3 August 2017 with a non-parole period of 12 months expiring 3 November 2016. The offence was committed whilst she was on parole for the manslaughter. 7. The Defendant was released to parole on 3 November 2016 but that parole was revoked on 21 November 2016. She was thereafter again released to parole on 10 May 2017. However, on 24 May 2017 that parole was revoked as from 11 May 2017 because of a failure to report to her parole officer and a failure to reside at an address agreed on by the officer. The result of the various parole breaches and revocations is that the sentence for the intentionally choke offence will expire on 16 August 2017. 8. The offence for which the Defendant remains in custody was not a serious violence offence. However, the manslaughter was such an offence. 9. The circumstances of the killing of Mr Truran that led to the manslaughter plea were summarised by Price J in his Remarks on Sentence. At the time of the offence the Defendant had been residing with KS and the deceased. A few weeks before the killing KS had been arrested and returned to custody on outstanding warrants. The Defendant remained living with the deceased. She had been told by KS that the deceased had anally raped her at one point. Justice Price then described the killing in these terms: [12] Ms Hollaway stated that at approximately 5pm that evening, ... when we were onto our second bottle of rum ... I had gone to the kitchen ... I'm not sure why ... he's come up from behind me ... he's grabbed me around the neck saying to me 'you owe me, you owe me, I'm going to have my way' ... and I thought, that's the end of me, ... to me I felt he was saying he was going to kill me ... to rape me ... I broke free ... grabbed a knife on the table ... 'nearby a big turbo cooker ... I don't remember what kind of a knife ... I turned around and stabbed him the once ... but he's kept coming and I kept stabbing him ... I got him about 3 times he staggered back and fell off the porch ... and that's where he lay ... I was crying ... frightened ... scared ... the voices were saying - you've killed somebody...". 1. The reference to voices is related to diagnoses made by Dr Jeremy O'Dea, Dr Olav Nielssen and Dr Stephen Allnutt who all found that she was either suffering from psychosis or experiencing symptoms of psychosis. It was those diagnoses which brought about the acceptance by the Crown of substantial impairment by abnormality of the mind. 2. As noted, the offence for which the Defendant is currently in custody was not a serious violence offence as defined in the Act. The circumstances may be briefly stated. The Defendant broke a window at premises where KS was living and where the Defendant wished to gain access. There is a suggestion that she had lived at those premises with KS. She broke a window with a pot plant and attempted to gain access by banging on the front door and shouting. KS opened the front door and was attacked by the Defendant. At one point the Defendant had her hands around KS's neck and appeared to be attempting to choke her. That was witnessed by the police who had attended at the premises. Judge McClintock found that to some extent KS was to blame for what happened and, in any event, both KS and the Defendant were significantly affected by alcohol. 3. The task of the Court and its purpose at the preliminary hearing stage is not to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing. Rather the test to be applied is similar to the prima facie case test applied by magistrates as part of committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]; State of New South Wales v Manners [2008] NSWSC 1242 at [8]-[9]. Appropriate weight is to be given to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7]. It is appropriate to bear in mind that the "fundamental objective of the legislature is the protection of the public" and the safety of the community: State of New South Wales v Pacey [2015] NSWSC 1983; Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21]. 4. What is meant by "a high degree of probability" in s 5E(2) was dealt with in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. What amounts to an "unacceptable risk" in the same section was explained in Lynn v State of New South Wales [2016] NSWCA 57 at [50]-[51], [55], [57]-[59] and [148]. 5. The Defendant was examined by Mr Samuel Ardisinski, the senior psychologist at the Serious Offenders Assessment Unit on 24 October 2016. The executive summary to his report reads as follows: Ms Holloway is a 27-year old Australian female who has been in custody serving a sentence for Manslaughter since June 2011. She has a prior criminal history which includes violence, and she committed a further violent offence during her release to parole in 2015. Based on the available information, it is considered that Ms Holloway presents an overall high risk of violent reoffending relative to other violent offenders. She is considered partially treated as she has participated in a series of programs which have been aimed at addressing her violence and substance use; however she has not received adequate intensive intervention into the underlying causes for her substance use and violence to be considered fully treated. The evidence indicates that Ms Holloway demonstrates some rudimentary insight into how she may avoid or minimise future violence, and considering how much violence has been committed within the context of her one long-term intimate relationship (which is now apparently finished), it is possible that she may be able to better avoid violent situations in the near future. If Ms Holloway were to be subject to an Extended Supervision Order (ESO), the mitigation of future risk may be enhanced by ongoing community supervision and support, since she has never before been adequately supervised in a community setting to monitor her transition to community-based responsibilities and restrict her alcohol and drug use. She has set up a number of necessary support structures in anticipation of her release to supervised parole in November 2016. 1. The enquiry is whether the Defendant poses an unacceptable risk of committing a serious violence offence as defined in s 5A. It is not sufficient to find that there is an unacceptable risk of violence as such. In that regard it must be noted that the Defendant has committed no other serious violence offences than the manslaughter. However, this was an issue discussed by Mr Ardisinski in his report. In three other offences involving violence for which the Defendant has been convicted, the Defendant has used or been in possession of a knife. In 2006 the Defendant was found guilty of maliciously wounding her stepfather after a disagreement between them. The Defendant lunged at the victim with a 30cm knife aimed at his stomach. He grabbed the knife blade and cut his hand. The Defendant had to be restrained by the family. 2. In 2007, when she was in a relationship with a man, she became involved in an argument with him. She punched him in the face and she slashed with a breadknife at a flyscreen he was endeavouring to fit. 3. In 2011 she was involved in a domestic dispute with KS and when the police attended the Defendant was found carrying a knife in circumstances where she had threatened KS also with a bottle opener containing a small blade. 4. While Mr Ardisinski accepted that the protocols with which she had been tested are predictors of violence, they do not necessarily predict the sort of offending specifically that constitute serious violent offences as defined. However, Mr Ardisinski concluded: 40. Based on the available information it is considered that Ms Holloway's most serious violence appears to occur within the context of domestic settings, against people she knows, when she has been drinking and/or using drugs, possibly experiences a resultant destabilisation in her mental health and feels somehow provoked by the victim. If she has access to a knife, this may exacerbate the seriousness of the violence perpetrated. 41. On the balance of the evidence the above high risk scenario could potentially result in serious violence, since Ms Holloway has, on more than one occasion, been involved in violent acts which have either involved the use of a knife, [scil. and? or?] were lethal or life-threatening. There certainly appears to be a risk that Ms Holloway may commit another serious violent offence if she returns to a violent relationship or engages in problematic drinking and other substance misuse. There is a demonstrated empirical link between substance abuse and repeat domestic violence (Eke et al, 2011). 1. I have mentioned in passing the psychiatrists who have examined the Defendant. Dr Allnutt interviewed her in July 2011 and said that it was likely she was experiencing symptoms of psychosis. He considered that a differential diagnosis would include schizophrenia, schizoaffective disorder and a drug induced psychosis. 2. Dr O'Dea interviewed her in October 2012. His diagnoses were substance use disorder, drug induced psychosis and personality disorder. 3. Dr Nielssen saw her in May 2012 and diagnosed her with substance dependence and abuse disorder, drug induced psychotic illness and probable personality disorder. 4. The evidence tends to suggest that her drug and alcohol abuse is not yet under control despite the courses she has engaged in. It is noted that whilst in custody she has had a number of drug related prison offences up to May 2016. Mr Ardisinski considered in November 2016 when he wrote his report that the Defendant did not appear to have adequately addressed the inherent reasons behind her drinking and drug use. When the Defendant was arrested on 24 May 2017 for breaching her parole she was held in a cell at Maroubra Police Station. In the early hours of 25 May she was seen extracting a resealable bag from her vagina. That bag contained cannabis leaf. She denied any knowledge of the drug but was convicted of possession of a prohibited drug. The facts and the denial point to a significant unresolved drug problem. 5. Nor, it would seem, from Mr Ardisinski's report and the risk management report from Debbie Thompson dated 8 December 2016, have her psychiatric conditions yet stabilised either with or without pharmacological assistance. There were motivational problems in relation to that also. 6. Senior Counsel for the Defendant accepted that procedural matters were in order for the making of an interim supervision order if it was thought appropriate. He indicated that the Defendant formally opposes the orders sought and reserves her position at the final hearing particularly in relation to whether she poses an unacceptable risk of committing a further serious violence offence. Senior Counsel accepted, however, that for the purpose of the preliminary hearing it was likely the Court would be satisfied that the supporting documentation, if proved, justified a finding that the Defendant posed an unacceptable risk of committing a serious violence offence if she was not kept under supervision. 7. At the time Senior Counsel's submissions were prepared there was a potential issue of a dispute in relation to accommodation for the Defendant but that appears to have been resolved, at least on an interim basis at the present time. 8. On the basis of the material I have seen, particularly the report of Mr Ardisinski, I am satisfied that if the evidence was accepted at the final hearing a continuing supervision order ought to be made. 9. There was no opposition to the proposed conditions of the interim supervision order. I raised the question of whether electronic monitoring was necessary for the purpose of the interim order. It was submitted that the fact that the Defendant when released to parole absconded, when she was supposed to attend Miruma House as her residential address and for treatment and went to live with her then partner KS in circumstances where the parole officers did not know her whereabouts, was a good indication that electronic monitoring was necessary. That failure to live where she was required to live and to notify her parole officer is a significant matter. 10. I take into account also that her drug problem clearly appears to be an unresolved one because of the events that I have noted at Maroubra police station as recently as 24 May 2017. In those circumstances I am persuaded that the conditions relating to electronic monitoring are appropriate. 11. Senior Counsel submitted that as far as the order under s 7(4) is concerned, it would be appropriate to appoint one psychiatrist and one psychologist. This was because, although there were clearly psychiatric matters that were relevant, there were also psychological issues particularly associated with the substance abuse. He submitted also that the issue of the appropriateness of the assessment tools, a matter raised by Mr Ardisinski, ought also to be explored by a psychologist. 12. Counsel for the Plaintiff did not oppose the appointment of a psychologist and a psychiatrist. In my opinion, that is the appropriate order. 13. Accordingly, I make the following orders: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. That a registered psychologist and a qualified psychiatrist be appointed to conduct separate examinations of the Defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by 8 September 2017; b. The Defendant is to attend those examinations. 2. Pursuant to s 10B of the Act, the Defendant is subject to an interim supervision order, for a period of 28 days, commencing on 16 August 2017. 3. Pursuant to s 11 of the Act, the Defendant is to comply with the conditions set out in the Schedule to the Amended Summons filed on 27 July 2017 for the duration of the interim supervision order. 4. The matter is listed for further mention on 5 September 2017 before Fullerton J to hear the Plaintiff's application to renew the interim supervision order. 5. The matter is listed for final hearing on 13 October 2017 at 10.00am with an estimate of 1 day. 6. The Plaintiff is to file and serve any evidence on which it relies for the final hearing by 5.00pm on 15 September 2017. 7. The Defendant is to file and serve any evidence on which she relies for the final hearing by 5.00pm on 22 September 2017. 8. The Plaintiff is to file and serve written submissions on which it relies for the final hearing by 5.00pm on 29 September 2017. 9. The Defendant is to file and serve written submissions on which she relies for the final hearing by 5.00pm on 6 October 2017. 10. The Defendant is to advise the Plaintiff which experts are required to attend Court to give evidence at the final hearing by no later than 5.00pm on 6 October 2017. 11. Liberty to apply to relist the matter on one days' notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2017