Legal Research
Cases
R v Krey (No 4)

R v Krey (No 4)

Case [2021] NSWSC 826 7 July 2021

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: R v Krey (No 4) [2021] NSWSC 826
Hearing dates: 22 February 2021
Decision date: 07 July 2021
Jurisdiction: Common Law
Before: Ierace J
Decision:
The offender is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 6 months and a balance of the term of the sentence of 4 years and 6 months. The total sentence is 11 years, to date from 15 July 2017 and expiring on 14 July 2028. The offender will become eligible for release on parole when the non-parole period expires, on 14 January 2024.

Catchwords:
SENTENCING – Manslaughter – Substantial impairment – Where offender diagnosed with Foetal Alcohol Spectrum Disorder, Complex Post-Traumatic Stress Disorder and intermittent explosive disorder – Where weapon used – Where no motive – Where offence partly explained by offender’s substantial impairment of capacity to control – Whether mental conditions reduced moral culpability – Whether prospects of rehabilitation guarded without adequate mental health treatment – Whether finding of special circumstances appropriate – Where offender young – Where offender willing to plead to manslaughter

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

Cases Cited:
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

Category: Sentence
Parties: Regina
Billy Krey (Offender)
Representation:
Counsel:
G Tabuteau (Crown)
G Scragg (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2017/215883

Judgment

HIS HONOUR: On 28 September 2020, Billy Krey was indicted for trial by judge alone before me on a count that on 15 July 2017 at Whalan in the State of New South Wales, he murdered Ioakima Sini. Following a trial lasting 13 days, on 18 December 2020, he was found not guilty of murder, but guilty of manslaughter: R v Krey (No 3) [2020] NSWSC 1811. A sentence hearing took place on 22 February 2021. Further written submissions were received after that date. I now deliver sentence for that offence. In this judgment, I will refer to Mr Krey as the offender and Mr Sini as the deceased.
The maximum penalty for the offence of manslaughter is imprisonment for a period of 25 years: s 24 of the Crimes Act 1900 (NSW) (“the Act”). Manslaughter is not an offence that has a standard non-parole period pursuant to Div A of Pt 4 of the Crimes (Sentencing Procedure)…

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 Krey (No 4)

Details

AGLC: R v Krey (No 4) [2021] NSWSC 826
Case: [2021] NSWSC 826
Decision Date: 07 July 2021

CaseChat Overview and Summary

The case of R v Krey (No 4) involved the sentencing of the defendant, Krey, who was convicted of manslaughter. The circumstances surrounding the offence included the use of a weapon, and the defendant's actions were partly explained by a substantial impairment of his capacity to control himself due to diagnosed mental conditions, including Foetal Alcohol Spectrum Disorder, Complex Post-Traumatic Stress Disorder, and intermittent explosive disorder. The offender had no motive for the crime, and the court had to determine whether these mental conditions reduced his moral culpability and if his prospects of rehabilitation were guarded without adequate mental health treatment. The court also considered whether a finding of special circumstances was appropriate, given the defendant's young age and willingness to plead to manslaughter.

The primary legal issues before the court were the extent to which the defendant's mental conditions affected his culpability and the appropriate sentence considering these conditions and the need for rehabilitation. The court had to weigh the impact of the defendant's mental impairments on his actions and moral responsibility against the severity of the crime and the need for deterrence and protection of society. The court also had to assess the likelihood of rehabilitation, considering the defendant's willingness to participate in treatment and the availability of mental health resources.

The court found that the defendant's substantial impairment due to his diagnosed mental conditions significantly affected his capacity to control his actions and thus reduced his moral culpability. The court acknowledged that without proper mental health treatment, the defendant's prospects for rehabilitation were uncertain, and the risk of reoffending remained. The court concluded that special circumstances were present, taking into account the defendant's age, his willingness to plead to manslaughter, and the need for treatment and rehabilitation. The court imposed a sentence that included a period of detention followed by supervision, with an emphasis on providing the defendant with access to mental health services to support his rehabilitation.

The final orders of the court reflected the considerations outlined above, imposing a sentence that balanced the need for punishment, deterrence, and rehabilitation. The court mandated that the defendant receive appropriate mental health treatment as part of his sentence, recognising the importance of addressing his diagnosed conditions to reduce the risk of reoffending. The sentence aimed to provide the defendant with the support necessary for his rehabilitation while ensuring public safety.

Orders