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Supreme Court 22 March 2013

R v Hollaway

[2013] NSWSC 218

Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER PROVOCATION EXCESSIVE SELF DEFENCE

Citation: R v Hollaway [2013] NSWSC 218
Court: Supreme Court of New South Wales
Date: 22 March 2013
Judge: Price J

Background

The offender pleaded guilty to the manslaughter of Alan Truran, committed at Hornsby in approximately April 2011. The Crown had originally charged her with murder but accepted a plea to manslaughter on the basis of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900.

The offender had been living at the deceased's home after her partner was taken into custody. She had a documented history of serious mental illness, including psychosis, auditory hallucinations, and paranoid delusions, and had recently been discharged from Hornsby Hospital's psychiatric unit. She told her treating psychiatrist that the deceased had pestered her for sex for approximately three weeks before the incident, and that on the day in question he grabbed her from behind by the neck, saying "you owe me, I'm going to have my way." She stabbed him multiple times with a kitchen knife. The deceased's badly decomposed remains were found by police in early June 2011.

The offender was 24 years old at the time of sentencing. She had disclosed the killing to her aunt in April 2011, but a police officer who received that report misplaced the note and took no action. She was arrested on 10 June 2011 when police attended the deceased's address.

  • Whether the agreed facts supported acceptance of the partial defence of substantial impairment by abnormality of mind
  • What the appropriate sentence was for manslaughter in circumstances involving mental illness, elements of provocation, and excessive self-defence
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to balance of term
  • The relevance of victim impact statements to the sentence imposed

Decision

Price J accepted the agreed facts and the unanimous psychiatric evidence that the offender was experiencing active psychotic symptoms at the time of the killing. Three psychiatrists agreed she was likely suffering from psychosis, with diagnoses including drug-induced psychosis, schizophrenia or schizoaffective disorder, and personality disorder. The Crown's acceptance of the substantial impairment plea was properly founded on that evidence.

His Honour identified multiple mitigating factors bearing on the objective and subjective seriousness of the offence. These included the deceased's documented history of sexual disinhibition and impulsive violence, the offender's mental illness at the time, her early plea of guilty, her remorse, and the circumstances of the attack itself, which contained elements consistent with provocation and excessive self-defence. The offender's account of the incident was regarded as credible in light of the deceased's known conduct.

The court determined that the offender's mental illness was relevant both to the objective seriousness of the offence and as a mitigating factor in sentencing. Her illness did not, however, indicate she posed a greater danger to the community. Price J also found that her mental illness history and need to remain abstinent from alcohol and drugs constituted special circumstances under the Crimes (Sentencing Procedure) Act 1999, justifying an extended supervision period upon release.

The court applied a 20 per cent discount to the starting sentence to reflect the utilitarian value of the early guilty plea, reducing the overall term from 6 years and 8 months to 5 years and 4 months.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 3 years, commencing 10 June 2011 and expiring 9 June 2014.
  • The balance of term was set at 2 years and 4 months, commencing 10 June 2014 and expiring 9 October 2016.
  • The earliest eligible parole date was set at 9 June 2014.
  • The court recommended to the NSW State Parole Authority that strict conditions be imposed upon release, including testing to ensure abstinence from alcohol and drugs.

Key Takeaways

  • Substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 operates as a partial defence reducing murder to manslaughter; here, consistent psychiatric evidence from three experts supported the Crown's acceptance of that basis.
  • Where a manslaughter offence involves overlapping partial defences (substantial impairment, provocation, and excessive self-defence), each remains relevant to the assessment of objective seriousness and to the determination of an appropriate sentence, even though only one partial defence formally grounds the plea.
  • A sentencing court may treat an offender's mental illness as both diminishing the objective gravity of the offence and as a mitigating factor in its own right, provided that the illness does not simultaneously indicate a heightened risk to the community.
  • Special circumstances justifying a non-standard non-parole ratio can be established by reference to an offender's need for extended supervision to manage ongoing mental health conditions and substance use issues upon release.
  • Victim impact statements were received without objection but, consistent with R v Previtera, their contents could not be used to increase the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3)(b), 21A(3)(c), 21A(3)(i), 21A(3)(j)

Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Blacklidge (unrep, NSWCCA, 12 December 1995)
- R v Dawes [2004] NSWCCA 363
- R v Engert (1995) 84 A Crim R 67
- R v Hill (1981) 3 A Crim R 397
- R v Macdonald (unrep, NSWCCA, 12 December 1995)
- R v Previtera (1997) 94 A Crim R 76
- Williams v R [2012] NSWCCA 172