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Supreme Court 7 July 2021

R v Krey (No 4)

[2021] NSWSC 826

Homicide
SENTENCING MANSLAUGHTER SUBSTANTIAL IMPAIRMENT WHERE WEAPON USED WHERE NO MOTIVE WHERE OFFENDER YOUNG

Citation: R v Krey (No 4) [2021] NSWSC 826
Court: Supreme Court of New South Wales
Date: 7 July 2021
Judge(s): Ierace J

Background

The offender was tried by judge alone for the murder of the deceased, who was stabbed multiple times in a public common area in Whalan on 15 July 2017. Following a 13-day trial, the offender was acquitted of murder but convicted of manslaughter on the basis of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW).

The stabbing occurred in a residential common area in view of multiple neighbours. The offender had woken that afternoon in an angry mood, argued with his mother about money, and shortly afterwards encountered the deceased outside. He stabbed the deceased 12 times, causing 16 surface wounds, two of which were severe and fatal. The deceased, who had a blood alcohol reading more than four times the legal driving limit, was unable to flee or defend himself.

The sentencing hearing took place on 22 February 2021. The offender had been held on remand since the date of the offence.

  • What weight should be given to the offender's diagnosed mental conditions (Foetal Alcohol Spectrum Disorder, Complex Post-Traumatic Stress Disorder, and intermittent explosive disorder) in assessing moral culpability?
  • To what extent did those conditions and the offender's deprived background reduce the sentencing considerations of general deterrence and retribution?
  • Whether protection of the community, by way of specific deterrence, remained a relevant sentencing factor despite the mental health diagnoses?
  • Whether a finding of "special circumstances" was appropriate to extend the period of parole supervision beyond the statutory ratio?
  • What discount applied for the offender's offer to plead guilty to manslaughter at the first reasonable opportunity?

Decision

Ierace J found that the offender's three diagnosed mental conditions, together with his severely deprived background, reduced his moral culpability for the offence. The court accepted that, without the combined effect of those conditions, the attack would not have occurred. This directly engaged the principles from Director of Public Prosecutions (Cth) v De La Rosa and Bugmy v The Queen, which recognise that such circumstances diminish the weight properly given to general deterrence and retribution.

Nonetheless, the court held that protection of the community through specific deterrence remained a relevant factor. The attack was described as explosive, random, and inherently lethal. The diagnosed conditions had, as at the time of sentencing, not been addressed by any treatment, meaning the risk to the community had not materially reduced. The court reflected that concern in the structure of the non-parole period.

The court identified a starting point sentence of 14 years and 8 months. That figure was reduced to 11 years to reflect the offender's offer to plead guilty to manslaughter at the first reasonable opportunity. The court also noted a further diagnosis of borderline personality disorder identified by Dr Seidler.

Special circumstances were found to exist, warranting a departure from the standard statutory ratio between the non-parole period and the balance of term. The offender's profound need for treatment meant that an extended period on parole was in the interests of both the offender and the community. The court also made a recommendation to Justice Health to develop a treatment program addressing the offender's diagnosed mental conditions.

Orders Made

  • The offender was sentenced to a total term of imprisonment of 11 years, comprising a non-parole period of 6 years and 6 months and a balance of term of 4 years and 6 months.
  • The sentence was backdated to commence on 15 July 2017, the date of arrest.
  • The total sentence expires on 14 July 2028.
  • The offender becomes eligible for parole on 14 January 2024.
  • A recommendation was made to Justice Health to assess the offender with a view to developing a treatment program for his diagnosed mental conditions.

Key Takeaways

  • The Supreme Court confirmed that a diagnosis of Foetal Alcohol Spectrum Disorder, Complex PTSD, and intermittent explosive disorder can significantly reduce an offender's moral culpability for a violent offence, following the principles in Bugmy and De La Rosa.
  • Where mental conditions directly explain (rather than merely accompany) the commission of an offence, the sentencing court will reduce the weight given to general deterrence and retribution in the sentence.
  • Protection of the community through specific deterrence remains a live consideration even where mental impairment reduces moral culpability, particularly where the conditions remain untreated and the offending was random and lethal in character.
  • Special circumstances were established by the offender's acute and unaddressed need for mental health treatment, justifying an extended parole period as a means of protecting both the offender and the broader community.
  • A guilty plea offered at the first reasonable opportunity to a lesser charge (manslaughter, where the offender was originally indicted for murder) attracted a significant sentencing discount, reducing the starting point from 14 years and 8 months to 11 years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23A, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, Pt 4 Div 1A

Cases
- Biddle v R [2017] NSWCCA 128
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Haines v R [2016] NSWCCA 90
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Regina v AEM [2002] NSWCCA 58
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14