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Supreme Court 21 May 2021

R v Holmes (No 7)

[2021] NSWSC 570

Homicide
CRIME SENTENCING MANSLAUGHTER GUILTY PLEA DISCOUNT TO BE APPLIED STATUTORY CONSTRUCTION

Citation: R v Holmes (No 7) [2021] NSWSC 570
Court: Supreme Court of New South Wales
Date: 21 May 2021
Judge: Campbell J

Background

The offender was charged with the murder of Chad Hadden following an altercation on the Newcastle foreshore in January 2018. The two men had been friends in their youth, reconnected after nearly two decades, and had spent the weekend together before the incident. A dispute at a hotel escalated into a physical confrontation, during which the offender punched the deceased to the ground, causing a fatal brain injury.

The offender pleaded not guilty to murder but guilty to the alternative count of manslaughter. The Crown did not accept the manslaughter plea in full discharge of the indictment, so the matter proceeded to trial for murder. After multiple trials, the jury ultimately returned a majority verdict of not guilty of murder, and the offender was remitted for sentencing on the manslaughter count.

A significant question arose on sentencing regarding the extent of the guilty plea discount. The offender had first offered to plead guilty to manslaughter in December 2018 while the matter was still in the Local Court, but the formal plea was not entered until arraignment in the Supreme Court in April 2019.

  • What sentence was appropriate for manslaughter by unlawful and dangerous act, taking into account the objective seriousness of the offending and the offender's subjective circumstances?
  • Whether the offence was properly characterised as manslaughter by unlawful and dangerous act, or manslaughter by excessive self-defence.
  • Whether a 25 percent utilitarian discount under s 25E(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was available where the offender had offered to plead guilty to manslaughter (a different, less serious offence) in committal proceedings, but had not formally entered that plea in the Local Court.
  • Whether manslaughter, as an alternative count to murder, qualified as a "different offence" that was the "subject of proceedings" for the purposes of s 25E.

Decision

Characterisation of the offending

Campbell J found that the Crown had not established beyond reasonable doubt that the offender intended to inflict grievous bodily harm on the deceased. The Crown did, however, prove to the criminal standard that there was no reasonable possibility the offender punched the deceased in genuine self-defence. Accordingly, the court characterised the offence as manslaughter by unlawful and dangerous act rather than excessive self-defence. The judge noted that the practical distinction for sentencing purposes was not substantial, as both categories require the court to assess objective seriousness and moral culpability on all the relevant facts.

Objective seriousness and subjective circumstances

The court assessed the offending as below the mid-range of objective seriousness, noting the absence of a specific intent to kill or cause grievous bodily harm, the significant role of alcohol in the evening's events, and the fact that the deceased had initiated the physical contact. In terms of subjective circumstances, the court found in the offender's favour on a number of matters: he had no prior criminal record, he had pleaded guilty at an early point, he had demonstrated genuine remorse, and there was evidence of good character and positive contributions to his community.

The plea discount question

The central statutory question was whether the offender was entitled to the 25 percent discount under s 25E(1)(b) of the Sentencing Act, which applies where an offender makes an offer in committal proceedings to plead guilty to a "different offence" that is the "subject of the proceedings," and that offer is ultimately accepted. The complication was that the formal plea was not entered in the Local Court, only the offer to plead.

Campbell J undertook a detailed statutory construction analysis and concluded that an alternative, lesser count on an indictment (manslaughter in lieu of murder) constitutes a "different offence" that is the "subject of the proceedings" within the meaning of s 25E. The judge further held that the offer to plead guilty, made in the Local Court in December 2018, was sufficient to trigger the provision even though no formal plea was entered at committal. A 25 percent discount was therefore applied.

Sentence

Applying the 25 percent discount to what would otherwise have been a head sentence of 7 years and 8 months, the court imposed a total sentence of 5 years and 9 months, with a non-parole period of 4 years and 3 months.

Orders Made

  • The offender was convicted of the manslaughter of Chad Hadden on his guilty plea.
  • Sentenced to imprisonment with a non-parole period of 4 years and 3 months, commencing 5 March 2019 and expiring 4 June 2023.
  • Additional term of 1 year and 6 months, expiring 4 December 2024.
  • First eligible for release on parole on 4 June 2023.
  • The court noted that manslaughter by unlawful and dangerous act is a serious violent offence under the Crimes (High Risk Offenders) Act 2006 (NSW), and that the offender may be subject to an application under that Act at the expiration of the sentence.

Key Takeaways

  • Under s 25E(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a 25 percent utilitarian discount is available where an offer to plead guilty to a lesser offence is made during committal proceedings, even if no formal plea is entered in the Local Court, provided the offer is ultimately accepted.
  • An alternative, lesser count on an indictment (such as manslaughter as an alternative to murder) can constitute a "different offence" that is the "subject of proceedings" for the purposes of s 25E, applying the court's statutory construction of that provision.
  • The characterisation of manslaughter as by unlawful and dangerous act rather than excessive self-defence had limited practical consequence for sentencing, but both the absence of specific intent and the initiation of violence by the deceased were relevant to the assessment of objective seriousness and moral culpability.
  • In sentencing for manslaughter where no standard non-parole period applies, the maximum penalty of 25 years under s 24 of the Crimes Act 1900 (NSW) remains an important legislative guidepost.
  • Competing sentencing considerations, including a first time in custody, genuine remorse, and good character, were weighed against the gravity of the fatal outcome, resulting in an assessment of the offending as below the mid-range of seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 24, 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A, 25D, 25E, 47
- Criminal Procedure Act 1986 (NSW), ss 66, 75, 78, 79
- Interpretation Act 1987 (NSW), s 8(b)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Black (No 2) [2021] NSWSC 77
- R v Blake Davis [2021] NSWSC 235
- R v Field [2014] NSWSC 1797
- R v Forbes [2005] NSWCCA 337; 160 A Crim R 1
- R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31