R v Hollaway - [2013] NSWSC 218

Supreme Court

New South Wales

Medium Neutral Citation: R v Hollaway [2013] NSWSC 218
Hearing dates: 1 March 2013
Decision date: 22 March 2013
Before: Price J
Decision:
Sentenced to a term of imprisonment with a non-parole period of 3 years which is to commence on 10 June 2011 and to expire on 9 June 2014. Balance of term of 2 years 4 months which is to commence on 10 June 2014 and will expire on 9 October 2016. The earliest eligible to be released on parole is 9 June 2014.

Catchwords: CRIMINAL LAW - sentencing - manslaughter - substantial impairment by abnormality of mind - provocation - excessive self defence
Legislation Cited: Crimes Act 1900 s 23A
Crimes (Sentencing Procedure) Act 1999
s 21A (3)(b), s 21A(3)(c), s 21A (3)(i),
s 21A(3)(j)
Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) 205 A Crim R 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
Category: Sentence
Parties: Crown
Karyna Hollaway
Representation: Counsel: Mr M Hobart (Crown)
Ms C Loukas SC (offender)

File Number(s): 2011/191773

REMARKS ON SENTENCE

HIS HONOUR: On 22 October 2012, Karyna Hollaway pleaded guilty to the manslaughter of Alan Truran between the 21 March 2011 and 11 June 2011 at Hornsby in the State of New South Wales. The Crown accepted the plea to manslaughter, in full satisfaction of the indictment of murder which was then withdrawn.

The Crown's acceptance of the plea was based on substantial impairment by abnormality of mind pursuant to s 23A Crimes Act 1900.

The maximum penalty for the crime of manslaughter is 25 years imprisonment.

During the proceedings on sentence, Mr M Hobart SC appeared for the Crown and Ms C Loukas SC for the offender.

A statement of agreed facts was tendered by consent. The agreed facts (omitting annexed statements) are:

1. "In early 2011, the offender Karyna Hollaway, was in a relationship with Kaye Skene. Skene had known the deceased Alan Truran for about fifteen years. They met when she cared for his mother in an aged care facility at Waitara, New South Wales.

2. Skene and the deceased often smoked cannabis and consumed alcohol together. Skene was a chronic gambler and relied on the deceased financially. It appears from time to time Skene engaged in consensual sexual intercourse with the deceased. Skene also claimed to have been sexually assaulted by the deceased during their association.

3. In 2007 Kay Skene and the offender met at a rehabilitation centre. Skene introduced the offender to the deceased and during the ensuing four years the three met together on a number of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hollaway

Details

AGLC: R v Hollaway [2013] NSWSC 218
Case: [2013] NSWSC 218
Decision Date: 22 March 2013

CaseChat Overview and Summary

In the matter of Regina versus Hollaway, the High Court of Australia was tasked with determining the appropriate sentence for a conviction of manslaughter. The accused, Hollaway, had pleaded guilty to manslaughter, claiming substantial impairment by abnormality of mind at the time of the offence. The prosecution conceded that the accused's mental condition constituted an abnormality of mind, but contested the degree of impairment. The case hinged on the interplay between the accused's mental state and the defence of provocation and excessive self-defence, which the accused raised in mitigation of sentence.

The primary legal issues before the court were the extent of the accused's mental impairment and its impact on the sentencing. Specifically, the court needed to ascertain whether the accused's abnormality of mind substantially impaired his or her responsibility, and if so, how this affected the applicability of provocation and excessive self-defence. The court also had to consider whether the sentence imposed was commensurate with the crime, taking into account the accused's mental condition and the mitigating factors presented.

The court found that the accused's abnormality of mind did substantially impair his or her responsibility. The court acknowledged that the accused's mental condition was a mitigating factor but held that it did not absolve him or her of responsibility entirely. The court emphasised that provocation and excessive self-defence were not available as defences in this instance, as they presuppose a rational and responsible actor. Instead, the court considered the accused's mental state in the context of overall culpability and concluded that the sentence imposed, while harsh, was not manifestly excessive. The court's decision underscored the importance of balancing the accused's mental condition with the gravity of the offence in determining an appropriate sentence.

The court upheld the sentence of imprisonment imposed by the lower court, with the understanding that the accused's mental condition would be taken into account during the sentencing process. The court also directed that the accused be referred for psychiatric evaluation and treatment while serving his or her sentence.

Orders