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 1HIS 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 The Crown accepted the plea to manslaughter, in full satisfaction of the indictment of murder which was then withdrawn. 2The Crown's acceptance of the plea was based on substantial impairment by abnormality of mind pursuant to s 23A Crimes Act 1900. 3The maximum penalty for the crime of manslaughter is 25 years imprisonment. 4During the proceedings on sentence, Mr M Hobart SC appeared for the Crown and Ms C Loukas SC for the offender. 5A 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 occasions. Skene told the offender that she had been anally raped by the deceased. 4.In March 2011 Skene and the offender came to stay with the deceased at his home in Hornsby. On 21 March 2011 police arrested Skene at the deceased's house on outstanding warrants. The deceased, the offender and Skene had been drinking and arguing. Skene was reported to the police by the offender. Skene remained in custody from then until early June 2011. 5.Up until Skene was taken into custody the offender had not spent time alone with the deceased. 6.The offender continued living at the deceased's house. The offender was admitted as an involuntary patient to the psychiatric unit at Hornsby Hospital in late March 2011 and gave her discharge address as that of the deceased. 7. On 1 April 2011 a psychiatric nurse from the hospital visited at the deceased's address. A man fitting a description of the deceased answered the door. The nurse spoke to the offender at the house. Events leading up to offence as described in report of Dr. O'Dea 8.Ms Hollaway was assessed at Hornsby Hospital on 16 March 2011 after having cut herself again in the context of reportedly "hearing voices". 9.Ms Hollaway represented to Hornsby Psychiatric Hospital from 30 March 2011 to 31 March 2011 with a history of declining mental state, characterised by disorganisation, ideas of reference, auditory hallucinations, and paranoid persecutory delusions, in a setting of increased alcohol and cannabis use. She was commenced on antipsychotic medication (Olanzapine, Zyprexa®. 20mg Daily by tablet) and that after settling into the ward was reviewed by the psychiatrist and discharged the following day at her request. 10.Ms Hollaway told Dr O'Dea that she subsequently returned to [the deceased's house] and that ... the second night back [my partner] got arrested ... she didn't finish her charge ... she did it in gaol. . I rang the police ... by this stage the voices had kicked in...". She explained that these 'voices' were, both male' and female' voices ... laughing real bad ... the voices were saying that [my partner] had ' put them in my mind... the voices said the government had put a chip in 'my body ... they were bringing all my childhood back to me ... the next day [the deceased] said I could stay with him ... not have to pay rent ... do my own thing ... I didn't feel comfortable ... but I didn't have anywhere to go and for the next 3 weeks he kept pestering me for sex ...'. Offence as described to Dr. O'Dea 11.Ms Hollaway told Dr O'Dea that on the day of the alleged offence, approximately 3 weeks after her partner had been detained in custody, she had been playing pool in the back shed with the deceased from approximately 11 am. She told Dr O'Dea that she had been smoking cannabis and drinking alcohol throughout the day. 12.Ms Hollaway stated that that at approximately 5pm that evening, ... when we were onto our second bottle of rum ... I had gone to the kitchen ... I'm not sure why ... he's come up from behind me ... he's grabbed me around the neck saying to me 'you owe me, you owe me, I'm going to have my way' ... and I thought, that's the end of me, ... to me I felt he was saying he was going to kill me ... to rape me ... I broke free ... grabbed a knife on the table ... 'nearby a big turbo cooker ... I don't remember what kind of a knife ... I turned around and stabbed him the once ... but he's kept coming and I kept stabbing him ... I got him about 3 times he staggered back and fell off the porch ... and that's where he lay ... I was crying ... frightened ... scared ... the voices were saying - you've killed somebody...". Subsequent Events 13. Sometime in April the offender told her aunt Shirley Haynes that she hadkilled the deceased. Shirley Haynes reported the matter to a constable atWindsor Police Station. The police officer concerned misplaced the note and subsequently forgot about it. Consequently the information was not acted upon. He recalls being told this information sometime after 14 April 2011. 14.On 8 June 2011 police attended the deceased's house and noticed that the mail had been building up for some time. On 10 June 2011 police returned to the house armed with a search warrant. The badly decomposed remains of the deceased were located near the back veranda under some towels. 15.On Friday 10 June 2011, the offender was arrested at 52/17 William Street, Ryde and conveyed to Ryde Police Station. Evidence Regarding the Deceased 16.The deceased suffered a brain injury in 1969 following which he developed impaired mental stability and judgment and marked hearing loss. 17.The deceased had a history of sexual disinhibition and impulsive violence. The deceased received a formal warning for kicking a client while employed at the Autistic Association in 2003. His membership of the Asquith Bowling Club was suspended for five years, after the deceased showed a 13 year-old girl his T-shirt "I have a PhD - Pretty Huge Dick" in 2008. 18.The deceased had a history of offences involving violence. Additionally an assault against Skene by the deceased is recorded in 2000 on the deceased's criminal history." 6The honesty and reliability of the offender's account of the offence to Dr O'Dea is supported by the deceased's history of sexual disinhibition and impulsive violence and the pre-existence of her mental illness. 7Although the date of the offence as set out in the indictment is between 21 March 2011 and 11 June 2011, it appears the offence was committed after 1 April 2011 as a man fitting the description of the deceased answered the door at his address on 1 April 2011 and sometime in April 2011 the offender told her aunt that she had killed the deceased. 8The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v Hill (1981) 3 A Crim R 397 at 402. The value, which the community places upon the preservation of human life, is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case: R v Macdonald (unrep, NSWCCA 12 December 1995). The starting point in the present sentencing exercise, as in all offences of manslaughter, is that the life of Alan Truran has been unlawfully taken: R v Blacklidge (unrep, NSWCCA 12 December 1995). 9The agreed facts disclose that the offender stabbed the deceased with a knife more than once. It was her recollection that she "got him about three times." The deceased was 61 years old when he died. 10The Crown's acceptance of the partial defence of "substantial impairment by abnormality of mind" was founded upon the psychiatric reports of Dr Jeremy O'Dea dated 18 October 2012, Dr Olav Nielssen dated 5 June 2012 and 31 October 2012 and Dr Stephen Allnutt dated 28 July 2011. These reports were tendered jointly by the Crown and the offender. 11Dr Allnutt, who interviewed the offender on 21 July 2011, believed that at the time of the offence, the offender was likely experiencing symptoms of psychosis. He considered that a differential diagnosis would include schizophrenia, schizoaffective disorder and a drug induced psychosis. 12Dr O'Dea interviewed the offender at the request of the Crown on 6 October 2012. His psychiatric diagnoses were that of Substance Use Disorder - currently in remission, Drug Induced Psychosis - currently in remission and Personality Disorder. Dr O'Dea opined (par 54): "It would appear that at least from the beginning of 2011, through the time of the alleged offence and until at least some weeks after her detention in custody in June 2011, [the offender] had experienced psychotic symptoms and displayed signs of psychosis resulting in a psychiatric diagnosis of drug induced psychosis". 13And at pars 56, 58: "Her substance use disorder has occurred in the context of a disorganised childhood with a history of sexual abuse, self harm and offending behaviour, again from a very young age. Her history of offending behaviour, substance abuse, self harm behaviours, and general interpersonal relations may reflect an emerging personality disorder. ... It could be argued that at the time of the alleged offence, [the offender] was suffering from an abnormality of mind arising from underlying conditions of a drug induced psychosis and vulnerable personality, that may have had a significant impact on her overall ability to control her actions at the time, thereby supporting a defence of substantial impairment..." 14It is plain that the onset of the offender's psychotic illness had preceded the commission of the offence. She was admitted to the Royal Perth Hospital from 31 January 2011 to 1 February 2011, with a diagnosis of a drug-induced psychosis after hearing voices. She was assessed at Hornsby Hospital on 16 March 2011 after having cut herself in the context of "hearing voices". Dr O'Dea recounts at par 2 that the offender "represented to Hornsby Psychiatric Hospital from 30 March 2011 to 31 March 2011 with a history of declining mental state, characterised by disorganisation, ideas of reference, auditory hallucinations, and paranoid persecutory delusions, in a setting of increased alcohol and cannabis use." 15Dr Olav Nielssen interviewed the offender at the request of her solicitors on 2 May 2012. His psychiatric diagnoses of the offender were Substance Dependence and Abuse Disorder, Drug Induced Psychotic Illness (in remission), and Probable Personality Disorder. Unlike Dr O'Dea, who confined the impact of the abnormality of mind to the offender's overall ability to control her actions, Dr Nielssen considered that the offender's ability to understand events, to judge whether her actions were right or wrong and to control herself was substantially impaired by an abnormality of mind arising from a drug induced psychosis on the background of an unstable personality. Dr Nielssen was specifically asked to prepare a supplementary report in light of the plea to manslaughter on the ground of substantial impairment by abnormality of mind. In a report dated 31 October 2012, Dr Nielssen states at p 3: "...I confirm the opinion expressed in the previous report, that [the offender] has the defence of substantial impairment by abnormality of mind as a result of the effect of a drug induced psychosis on the background of an unstable personality. Her perception of events was affected by the persecutory belief that people were playing games with her and that the voices she could hear were originating from a microchip inserted in her brain. Her ability to judge right from wrong was also affected by her increased perception of threat and hence her propensity to believe that she was acting to defend herself in some situation in which she felt threatened as a result of persecutory beliefs. I believe her ability to control her actions was also impaired as a result of her combination of psychiatric disorders, as her unstable mood and high level of arousal is likely to have increased her propensity to act on impulse in response to a perceived threat." 16I find it is more probable than not that at the time of the stabbing, the offender's capacity to understand events, and to judge whether her actions were right or wrong, and to control herself was substantially impaired by an abnormality of mind arising from an underlying condition of a drug induced psychosis on the background of unstable personality. The wide embrace of the offender's substantial impairment, reduces significantly the offender's moral culpability for the offence: s 21A(3)(j) Crimes (Sentencing Procedure) Act 1999. However, it does not negate her moral culpability: R v Dawes [2004] NSWCCA 363 at [34]. 17The Crown acknowledged that the deceased's conduct allowed for an assessment of provocation under s 21A(3)(c) Crimes (Sentencing Procedure) Act. Provocation by the deceased is a mitigating factor to be taken into account in determining the appropriate sentence: s 21A(3)(c) Crimes (Sentencing Procedure) Act. In Williams v R [2012] NSWCCA 172 at [42], I expressed the view that where provocation is established such that it is a mitigating factor under s 21A(3)(c), it is a fundamental quality of the offending which may reduce its objective seriousness. In any event, provocation is a factor relevant to the appropriate sentence to be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. 18Ms Loukas submitted that the agreed statement of facts gave rise to the partial defence to murder of provocation under s 23 Crimes Act and to the issue of manslaughter by way of excessive self defence. 19I am satisfied on the balance of probabilities that the deceased's conduct in grabbing the offender around the neck and saying that "[he] was going to have [his] way", led her to believe that the deceased intended to sexually assault her. The offender was not only provoked by the deceased, but was acting on the belief at the time of the stabbing that it was necessary to do what she did in order to defend herself. Without the deceased's sexual advances upon the offender, the offence would not have occurred. I take into account these matters in mitigation of the objective seriousness of the offence. However, by her plea of guilty to manslaughter, the offender acknowledged that the stabbing of the deceased was not a reasonable response in the circumstances, as she perceived them to be. 20Another matter that mitigates the seriousness of the offence is that it was not planned, but was committed on the spur of the moment, the offender reacting to the exigencies that she found herself in: s 21A (3)(b) Crimes (Sentencing Procedure) Act. 21The offender's criminal record in New South Wales discloses convictions as an adult in the Local Court for common assault (2007), contravention of an apprehended violence order and possession of a prohibited drug (2009). She has matters in the Children's Court that include malicious wounding and contravention of an apprehended domestic violence order. Her criminal record in Victoria includes a charge of burglary (2009) and in Western Australia, charges of assault, breach of a police restraining order (2010) and trespass (2009). These offences were dealt with by fines and community based sentencing options. She has not been previously sentenced to imprisonment. The offender's criminal history does not entitle her to leniency but it is not such that it is a matter of aggravation. 22The offender offered to plead guilty to manslaughter in late August 2012 and provided her psychiatrist's reports to the Crown in early September. Unsurprisingly, the Crown asked Dr O'Dea to interview the offender and the offender's plea was ultimately accepted. The jury was to be empanelled on 29 October 2012 with an estimated length of the trial being three weeks. In view of the offender's offer, the case was not prepared for trial. I assess the utilitarian value of the plea to be 20 per cent. 23Remorse as a mitigating factor is qualified by s 21A (3)(i) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that she has accepted responsibility for her actions and has acknowledged any injury, loss or damage caused by them. By her plea of guilty, the offender has accepted responsibility for her offending. The offender told Dr O'Dea of her distress about the offence. She has written to the court expressing her remorse and sorrow for what she has done. I accept that the offender is remorseful. I take into account her remorse as a mitigating factor. 24The offender did not give evidence during the proceedings on sentence. Her subjective circumstances are drawn from the histories that she provided to the psychiatrists. She was born on 6 January 1989 and was 22 years old at the time of the commission of the offence. 25Without detailing all of the histories in the psychiatric reports, it is evident as Ms Loukas points out in written submissions, that the offender's background is one of marked childhood and developmental adversity. I accept that she was raised in an atmosphere of domestic violence and subjected to serious emotional neglect, as well as physical and sexual abuse. 26It appears that the offender was sexually abused by her mother's partner when she was 11 years old. She described further sexual abuse by an elder brother and a neighbour. At the age of 13, she was made a ward of the State. The offender reported episodes to Dr Nielssen of deliberate self harm from the age of 12 or 13 mainly by cutting her left forearm and that she developed symptoms of an eating disorder. She was admitted to Bloomfield Psychiatric Hospital, Orange, in December 2004 with a diagnosis of "Stress Reaction Disorder", having cut her wrist following a miscarriage. The offender was then 15 years old. She presented to Dubbo Base Hospital in April 2005 with thoughts of self harm and depression. 27The offender began drinking alcohol and smoking cannabis from her early teenage years. She reported the onset of abuse of methamphetamine at around the age of 18, which has from that time been her main drug of abuse. She was enrolled in the MERIT program and admitted to the Lyndon Community Rehabilitation facility to stop her drug abuse on two occasions, but relapsed soon afterwards. 28Having left school during year eight, the offender has had limited education. She told Dr Nielssen that she attended numerous schools, but did not complete a year at any one school. However, the offender reported that she was literate and attempted a tourism course at TAFE. She had been employed as a ride operator at country shows. 29I find that the offender's dysfunctional background was on the balance of probabilities causative of her descent into alcohol and drug abuse at an early age. 30Dr Allnutt expressed the opinion (at p5) that when he saw the offender, "she was manifesting residual symptoms of an almost fully resolved psychosis" and was developing insight into her prior experience of auditory hallucinations. He considered that there remained a risk that she could experience a relapse or a risk of deterioration in her mental state. 31Dr O'Dea reported (at p 10) that the offender "with apparent prolonged abstinence from substance abuse in custody in the context of psychiatric treatment with antipsychotic medication...has reportedly been free of psychotic symptoms for approximately 1 month and presented at interview without evident psychosis." He opined that the offender must remain "abstinent from alcohol and other drug use in the community in the long term in order to manage and minimise her risk of engaging in further offending behaviour in the community in the long term, and to manage and minimise the risk of her suffering further psychiatric symptomatology." 32In his report dated 5 June 2012 (at p 6), Dr Nielssen made reference to the "recent return of symptoms suggests that she may in time develop a chronic form of mental illness." In his later report, he was of the opinion that the offender might have an underlying schizophrenic illness for which she would need long term treatment with antipsychotic medication. Dr Nielssen considered that the offender has a high risk of developing symptoms of psychosis if she was to resume using cannabis or amphetamine. He recommended a long period of supervision of her mental state and abstinence from illicit drugs after release. 33The offender is not currently taking medication. She is in employment within the prison system and receives a basic wage. Ms Loukas did not submit, nor do I find, that because of the offender's mental illness, a custodial sentence would weigh more heavily upon her. 34Although I accept Ms Loukas' submission that the offender's remorse and acceptance of responsibility for the manslaughter can allow the court some confidence that she has begun the process of addressing her offending behaviour, I am unable to make a positive finding that she is unlikely to re-offend or has good prospects of rehabilitation. Much will depend on the offender's ability to avoid relapsing to alcohol and or drug misuse upon release. Her previous failures to overcome the use of illicit drugs do not encourage an optimistic view being taken. 35The offender's mental illness has the consequence that she is an inappropriate vehicle for making an example for others. Nevertheless considerations of general deterrence are not rendered completely irrelevant: R v Engert (1995) 84 A Crim R 67; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) 205 A Crim R 1; [2010] NSWCCA 194. I do, however, give little weight to general deterrence. 36I accept Dr Nielssen's opinion that the offender has a high risk of developing symptoms of psychosis if she was to resume the use of illicit drugs and Dr O'Dea's view that she must abstain from alcohol and other drug use to minimise her risk of offending. In these circumstances, the offender's mental illness does not eliminate the need for specific deterrence. On the other hand, it was not submitted by the Crown, nor do I find that the offender's mental illness makes her more of a danger to the community: De La Rosa at [177]. 37The offender is 24 years old. In considering her need for rehabilitation, I take into account that she is a comparatively young woman. I find that special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of term of the sentence, being the need for supervision of her mental state and to remain abstinent from alcohol and drug use. 38Victim impact statements from Kristy-Lee Holdsworth and Stan McDowell were tendered without objection. The contents of the statements cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's relations and express on the community's behalf its sympathy and compassion for them. 39Various cases were cited by counsel. Ms Loukas made particular reference to cases where offenders had been sentenced on the basis of more than one of the partial defences to manslaughter. I have found all of this material helpful, but each case depends on its own facts. 40Mr Crown submitted that when the offender is released to parole, there should be strict conditions of supervision imposed such as the taking of urine and blood samples to ensure that she does not partake in excessive alcohol or drug use. The offender's release to parole and conditions of that parole are a matter for the New South Wales State Parole Authority, but I would endorse Mr Crown's call for strict conditions upon release and recommend such an approach to the Parole Authority. 41Taking into account all factors that are relevant to sentence, the appropriate undiscounted starting point of the overall sentence I conclude is 6 years 8 months. The overall sentence is reduced by 20 per cent to 5 years 4 months. 42The offender has been in custody since 10 June 2011 which is the agreed date for the commencement of the sentence. 43Karyna Hollaway for the offence of manslaughter, I sentence you 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. I set a balance of term of 2 years 4 months which is to commence on 10 June 2014 and will expire on 9 October 2016. 44The earliest date that you will be eligible to be released on parole is 9 June 2014. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2013