R v Holmes

Supreme Court of NSW|2021-05-21|Before: Campbell J, Fullerton J

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 12th of December, 2018 when the matter remained in the Local Court. The formal plea was not entered until his arraignment in the Supreme Court on the 5th of April, 2019 before Justice Fullerton. This has led to a complex question which I will deal with later in these reasons as to the extent of the statutory discount to which his plea entitles him.
For completeness, I record that Mr Holmes was first tried on an indictment substantially to the same effect in February 2020. A first trial was aborted after 3 days' hearing; and a second after the jury were discharged when they were unable to agree upon their verdict.

Sentence

It is now my duty to sentence Mr Holmes for the manslaughter of Mr Hadden. Manslaughter carries a maximum penalty of 25 years imprisonment pursuant to s 24 Crimes Act. No standard non-parole period is prescribed by Division 1A Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"). The maximum penalty for an offence constitutes an important legislative guidepost for sentencing which I will bear firmly in mind throughout.
As I have pointed out, Mr Holmes did not stand trial for manslaughter, he stands for sentence on his adherence to his plea of guilty entered before his trial for murder. In legal terms, the manslaughter count was not before the jury for their determination. In the absence of the agreement of the parties as to the facts underpinning Mr Holmes's offending and the other matters and circumstances relevant to sentencing, I am required to find them on the basis of the evidence led at the trial as supplemented by other evidence and material introduced at the proceedings on sentence. I direct myself that facts, matters and circumstances adverse to Mr Holmes must be established by the Crown beyond reasonable doubt; those favourable to him are required to be established by him on the lesser standard of on the balance of probabilities.

Issues at trial

Principally two issues were left for the consideration of the jury at the murder trial. They were: first, whether the Crown had proved beyond reasonable doubt that when he inflicted the brain injury which proved fatal on Mr Hadden by punching him to the ground Mr Holmes had the actual, specific intent of inflicting grievous bodily harm; and secondly, even if so, whether the Crown had proved beyond reasonable doubt that there was no reasonable possibility that Mr Holmes punched Mr Hadden because he believed his actions were necessary to defend himself.
Although relevant to the questions of Mr Holmes guilt for murder they, especially the second, given Mr Holmes's acquittal, remain pertinent to sentencing for manslaughter because they inform the related questions of the objective seriousness of the offending and the degree of moral culpability that should be attributed to Mr Holmes.
For the reasons which follow, and taking the jury's verdict into account, I find the Crown did not establish intent to inflict grievous bodily harm beyond reasonable doubt, but did prove to the criminal standard of proof that there was no reasonable possibility that Mr Holmes punched Mr Hadden because he believed his actions were necessary to defend himself from Mr Hadden. That is to say, I approach the question of the appropriate sentence for this offence and this offender on the basis that this is a case of manslaughter by unlawful and dangerous act rather than of excessive self-defence. The distinction for sentencing purposes is not of great practical effect. In either case it is the Court's task to have regard to all relevant facts, matters and circumstances to impose a sentence appropriate for the offence and the offender.

Findings of primary fact

I have had the benefit of competing arguments by counsel as to the facts underpinning the offending. In truth there are only small, albeit significant, differences between them. I will sentence Mr Holmes on the basis of the following narrative of fact.
Mr Holmes and Mr Hadden had been friends between the ages of 16 and 20 before becoming estranged. In 2017 they reconnected through Facebook after a period of nearly 20 years. In the period prior to the offending they had socialised with one another, including spending New Year's Eve 2017 in each other's company. They arranged to spend the weekend on which the offending occurred together. On Friday the 12th of January 2018, Mr Holmes picked up Mr Hadden from his home in Wallsend and drove him back to Mr Holmes's home in Woodberry. They spent that weekend playing and listening to music, and watching Netflix. They planned to cap-off the weekend by spending the afternoon of Sunday, 14 January socialising at the Queens Wharf Hotel, located on the Newcastle Foreshore footpath.
After leaving Mr Holmes's place, they each drank a stubby of beer on the walk to the Beresford Train Station. There they boarded a replacement train bus service to Newcastle, arriving at the hotel at around 2 pm. On arrival Mr Hadden purchased the first of four buckets of Corona beer shared by them. Each subsequent bucket was purchased by Mr Holmes. They sat together at an outside table throughout the afternoon consuming the full-strength beer. During the afternoon until their ejection they each consumed eight beers, nine if one includes the beer drunk on the way to the station. There is no evidence to suggest either was drunk and some evidence to the contrary. But one may infer a degree of affectation on the part of each of them, even assuming some habituation. I interpolate they were ejected for disorderly conduct, and not for drunkenness.
At 3:54 pm Mr Holmes posted to his Facebook account a photograph of himself enjoying a beer taken by Mr Hadden. In his evidence Mr Holmes stated he had made the Facebook post to "celebrate the day" (478.26 T).
Any celebration proved short-lived as an altercation broke between the old friends at around 6 pm. According to Mr Holmes the catalyst appears to have been a dispute over the location of Mr Hadden's pouch of tobacco that had repeatedly blown off their table. Both men were smokers of roll-your-own cigarettes. The dispute escalated and a scuffle ensued. From the hotel's CCTV footage tendered in evidence and played several times during the trial, Mr Hadden was the first to engage in physical contact. On Mr Holmes's evidence, Mr Hadden had accused him of stealing his "smokes" before "[grabbing him] by the throat" (485.01 - 485.05 T). A near identical account appears in Mr Holmes's contemporaneous interview with police recorded on the night of the offending at Newcastle Police Station. I accept that Mr Hadden initiated the physical contact between the men and in an aggressive manner. This appears obvious from the footage which corroborates Mr Holmes's account. On the other hand, Mr Hadden gave a different account of the origin of the conflict to the security guards who ejected him. The difference between their accounts need not be resolved for present purposes, save as to say neither version seemed to justify the initiation of violence.
During their fight, which was in the nature of a wrestle, neither appearing to throw a punch, both men went to ground. However, Mr Holmes was able to gain the upper hand. Mr Holmes was able to force Mr Hadden against or near the edge of the wharf and stand over him, holding him down. They were separated by the quick action of another patron, Mr Adam Walton. Mr Walton applied a "bear hug" to Mr Holmes and dragged him away from Mr Hadden. Hotel security then intervened to separate the men.
The security guards and hotel management then ejected both men from the hotel separately. Mr Holmes was sent in a westerly direction towards Scratchleys' restaurant. After a delay of 5 minutes or thereabouts, Mr Hadden was ejected in an easterly direction towards the old Customs House.
If the purpose of the measures taken to release the men separately and in different directions was the avoidance of further trouble between them outside the hotel, it did not have its desired effect. I stress that I make no criticism of hotel security. Although Mr Hadden was directed by security to head east, it is clear that he circled back and headed west. While there is nothing in the evidence that suggests Mr Hadden's change in direction was calculated to seek out Mr Holmes for further confrontation, that is what occurred. Both the men had arrived in Newcastle via public transport to the west of the hotel. It may be supposed each would head home that way.
In his account of the incident, Mr Holmes told police that he became aware of Mr Hadden's presence when he heard him calling out aggressively from across Wharf Road. Mr Holmes stopped walking westward and waited for Mr Hadden to cross the road. It should be observed that as Mr Holmes had been released from the hotel before, and in the opposite direction to that proposed for Mr Hadden, the fact that he made such little progress before Mr Hadden caught up with him suggests he must have been dallying.
Of the moments leading up to the fatal punch Mr Holmes's told police in his interview (MFI 16, Q 57): "Then [Mr Hadden] came over from that side of the road and come over. Come right up to me, he pointed, said to me, he goes, you ever do that, I'll friggin' kill you". At trial Mr Holmes gave evidence that during this exchange Mr Hadden was aggressively gesticulating and had poked his finger in or around Mr Holmes's eye (494.48 - 495.33 T). He substantially repeated this evidence when cross-examined during proceedings on sentence. His account in his ERISP is to the effect that Mr Hadden was waving a finger in Mr Holmes's face saying the words "kill you" (Q 525 at p 50). He makes no mention of any physical contact. I prefer his account on the ERISP to his evidence in this regard. I found his evidence about this inconsistent with his ERISP, and frankly weak and unpersuasive. In particular, his explanation that he did not mention a physical assault by Mr Hadden as he did not wish to jeopardise the parole he knew Mr Hadden to be on at that time was particularly unconvincing. The whole tenor of his account to the police was that Mr Hadden "attacked" him twice, yet he did not mention the alleged assault on the foreshore footpath. He expressly disavowed any fear for his own safety, as I detail below. In fact, he denied any assault on him by Mr Hadden at that time. To the extent his oral evidence is inconsistent with his ERISP, I reject it and put it to one side.
Regardless, I accept from his ERISP that when they met up again on the foreshore Mr Hadden was in an aggressive and threatening mood. In response, Mr Holmes delivered the fatal punch, a left hook of considerable force, forceful enough to knock Mr Hadden off his feet and backwards. Mr Hadden fell backwards striking the back of his head on the concrete pavement. Lay witnesses gave evidence at the trial of hearing a loud crack or thud. It is reasonably clear from special forensic pathologist Dr Elstub's evidence that it was not the punch but the force of Mr Hadden striking the back of his head on the pavement that caused the fatal brain injury. For five months Mr Hadden was in a medically induced coma receiving ongoing medical attention. He died on 27 June 2018 following complications from surgery. There is no issue that the severe brain injury received on 14 January, 2018 contributed substantially to his death.
In his interview with police Mr Holmes's said of the punch (Q 57): "I lost my shit. I just went boom, hooked him once. He hit the deck. I, I stood over him. I said, I can't friggin believe you done that… I did give him, like, slaps on the face when he was on the ground. And I said, don't you ever, ever contact me ever again. And I walked off, and then that was it". This was the only evidence about the moments leading up to the fatal punch. The attention of the eyewitnesses was drawn by the sound of Mr Hadden hitting the ground and their evidence necessarily is concerned with the immediate aftermath.
As I have already indicated, I accept from the number of full-strength beers consumed by the men on the day of the offending, approximately nine each, and by the way Mr Holmes presented in his speech and mannerisms in the recording of his police interview, that he was somewhat affected by drink but not drunk. I stress that Mr Holmes's state of intoxication does not in any way go toward the mitigation of his sentence, but it is a factor which partly explains his conduct. It does not excuse or justify it. Another relevant factor was his anger at Mr Hadden's conduct towards him which in his state he found provocative.
As to the issues, I am persuaded that the Crown have excluded partial self-defence even as a possibility. In his interview with police Mr Holmes conceded he was not concerned Mr Hadden was going to kill him. He was asked about the circumstances in which he punched Mr Hadden in the face, he gave this account (at Q 301) (omitting the interjected questions): "[After the incident in the brewery] … he's come up and going … you ever do that, I'll kill you. And that was it I thought, Oh, what, kill me, you're gunna kill me … I've down nothing and you accuse me of stealing your smokes and you're gunna to kill me. … So I, I punched him".
He also said (at Q 510): "I just hooked him … Because he angered me, he threatened me, you know, he threatened me".
When asked whether he thought Mr Hadden was capable of carrying out the threat (Q 522) he said: "Oh, not at all, not at all, no, don't, yeah. If you're thinking, yeah, re, you know, like that, oh, no, no, not at all, Sir". He said he wasn't concerned (at Q 525 and Q 526): "… that he was gunna kill me, not at all, you know. … It wasn't like, I'm, I'm, immediate threat, I'm gunna die. It wasn't like that, Sir, at all". "…. Uh, it was more like going, Oh, yeah, you're gunna kill me, are you, you bitch. Boom. You know, that was it, that was it. It wasn't like, No, oh, yeah, you, you know. Not at all, Sir, it wasn't like that, no, no".
It is also notable that Mr Holmes, a man of considerable build, had come off the better of the two men during their grapple at the Hotel. This is not to be taken as detracting from my finding that Mr Hadden was the aggressor in the circumstances leading up to the offending.
With respect to the issue about intent, I do, however, accept that Mr Holmes had what might be known colloquially as a "brain snap" when he threw the punch that felled Mr Hadden. I take the onomatopoetic "boom", where it appears throughout his police interview, to indicate this. I also accept Mr Holmes's statement when questioned directly about his intent in throwing the punch, "I didn't have an intent, I didn't have an intent. It was like boom, you know what I mean? Uh, there was no intent" (Q 520). The other circumstances that lend themselves towards this conclusion are Mr Holmes's state of intoxication and the fact that Mr Hadden was being aggressively "in his face" immediately before he struck him. This is not to say that Mr Holmes did not intend to punch Mr Hadden with force, but that when he did so he had not turned his mind to the achievement of any particular purpose.
I now turn to the issue of whether Mr Holmes proceeded to slap or punch Mr Hadden when he was supine, a central point of difference between the Crown and defence case. In truth not much of significance turns on this for sentencing purposes. The real relevance of the evidence at the trial was what it might say about Mr Holmes's state of mind when he threw the first punch.
The Crown led evidence from Prudence Boyd who had been walking past the scene with her then boyfriend Jayden Spaull. Ms Boyd gave evidence that she saw Mr Holmes punch the supine Mr Hadden "two or three times in either side of the head" (219.6 - 219.7 T). Her evidence at trial corresponds with her police statement given on the night of the offending that the man on the ground was being punched, and her further statement on 1 February 2019 that the punches being thrown were with a closed fist.
To the contrary, Mr Holmes said to the investigating police officers in his recorded interview, in his evidence at the trial and again on sentence that he had slapped Mr Hadden with his open palms only when he was on the ground. I do not accept this exculpatory account given by Mr Holmes. I found Ms Boyd to be a most compelling and composed witness and I am satisfied beyond a reasonable doubt that it was punches, not slaps as Mr Holmes contended, that were delivered to Mr Hadden. I also accept, as he told the police (Q 545-6), that before he struck those subsequent blows, Mr Holmes was aware that Mr Hadden was "hurt".
Mr Holmes left the scene on foot. A bystander, Jonathon Wood, commendably followed him. I am of the view that nothing for sentencing purposes turns on resolving the dispute about what was said between them when Mr Wood caught up with Mr Holmes. Shortly after, the police arrived and he was taken back to Newcastle Police Station. The question of whether he lied to Mr Wood about striking Mr Hadden is no longer of significance given the jury's verdict on the murder charge. I note that he did not attempt to evade police who were on the scene promptly.

Objective seriousness of the offending

The elements of manslaughter by unlawful and dangerous act are constituted by causing the death of another by your act which is both unlawful and dangerous. Here the unlawful act is the intentional application of force by Mr Holmes to Mr Hadden's body without his consent by throwing the first punch. That act was dangerous because a reasonable person in Mr Holmes's position would have appreciated that he was exposing Mr Hadden to a risk of serious injury.
For sentencing purposes it is always necessary for the judge to make an assessment of the objective seriousness of the offending in question. This consideration engages directly with the requirement of proportionality in sentencing, that is that the punishment must fit the crime, which is a central concern of the law among the many often competing considerations that have to be brought to bear in fixing a just sentence.
As we are dealing with the unlawful taking of human life obviously all cases of manslaughter are serious. But not all are equally serious. It is an aspect of equality before the law that the law values each human life equally and seeks to vindicate the life taken regardless of the person's individual accomplishments or shortcomings. No estimate of the worth of the life taken is either called for or justified.
Measuring objective seriousness of the offending involves an assessment of the criminality involved in the particular offending. Judges often remark that this assessment is particularly difficult in cases of manslaughter because of the very wide range of criminality it covers. As Spigelman CJ observed, its circumstances may vary from a joke gone wrong to facts falling just short of murder: R v Forbes [2005] NSWCCA 337; 160 A Crim R 1 at [133]; R v Blake Davis [2021] NSWSC 235 at [138]. Quite obviously the case at hand does not lie at either end of this very broad spectrum.
The Crown submits I should assess the matter as a very serious episode of alcohol fuelled violence in a public place by reference to considerations addressed by the Court of Criminal Appeal in R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at [107] and [216] ("Loveridge"). The learned Crown Prosecutor relied upon seven particular aspects of the facts of the present case: 1. Mr Holmes made a conscious, if split second, decision to punch Mr Hadden during their encounter on the foreshore when the latter had not struck him; 2. The punch was to the head and was delivered with substantial force; 3. The offender must have appreciated the risk of significant injury involved in his actions; 4. The punch was delivered suddenly and without warning; 5. When, as a result of the first punch, Mr Hadden was down hurt in a vulnerable position, Mr Holmes continued the violence by punching Mr Hadden another two or three times; 6. The violence was perpetrated in a public place on the harbour foreshore where many innocent members of the public were passing in the early evening in summer time; and 7. Mr Holmes failed to render any aid to Mr Hadden but walked away. The Crown acknowledged that these factors were drawn from the decision of Fullerton J in R v Field [2014] NSWSC 1797 at [83]-[84].
Mr Webb of counsel, who appeared for Mr Holmes both at the trial and on sentence, submitted that this case was quite different from Loveridge. He cautioned against drawing a false analogy from apparent, but in truth superficial, similarities from other cases involving facts which at best were only broadly similar. He emphasised the caution emphasised by the Court of Criminal Appeal against categorising cases "which may be said to have a single common component relating to the mechanism of death" (Loveridge at page 226). He submitted that the expression "alcohol fuelled violence" does not aptly describe the circumstances of the present case. Mr Holmes and Mr Hadden had not consumed alcohol for the purpose of getting drunk and neither had deliberately embarked upon the course of looking for violent confrontation.
Moreover, Mr Webb submitted, the Crown's analysis overlooked Mr Hadden's part in the initiation of violence between the two friends that afternoon. Whatever the cause of the initiation of violence, it was Mr Hadden who first attacked Mr Holmes in the hotel. The significance of these facts should not be overlooked. Moreover, even if Mr Holmes had dawdled making his way west along the foreshore, it was Mr Hadden who sought him out and initiated a further confrontation by getting into Mr Holmes's personal space in an intimidating and threatening manner, even if there was no further physical contact initiated by him. Neither violent episode between the two friends in the early evening of 14 January 2018 was initiated by Mr Holmes.
It is important for me to bear in mind that the High Court of Australia has said that "meaningful content cannot be given to the concept" of objective seriousness of an offence "by taking into account… matters personal to a particular offender": Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. Their Honours said that the question of objective seriousness "is to be determined wholly by reference to the nature of the offending". For this reason, in my view, questions of moral culpability are not germane at this point.
I accept that while unhelpful comparisons either way are to be avoided, this case is quite unlike the type of case with which Loveridge was concerned, although each case has certain common features. Of these, I accept the Crown's argument that it is significant that the offence was committed in a public place. Although this was not random violence by a drunken lout which could have been directed at any passing member of the public, the personal confrontation between Mr Holmes and Mr Hadden and the violence perpetrated by Mr Holmes against Mr Hadden did alarm those nearby passing members of the public who witnessed it. And this is so even if they were not actually at risk. Although one may question whether public violence is more serious than that perpetrated in private, especially given the heightened awareness of the scourge of domestic violence, the factor is one to which weight should be attributed.
I accept that the first and fatal blow, fatal because it propelled Mr Hadden's head to the pavement below, was deliberately struck. But that of course is an element of the offence. I accept it was forceful. But I am not persuaded beyond reasonable doubt that Mr Holmes must have realised that he was exposing Mr Hadden to the real prospect of serious injury. While I accept that he spontaneously formed the intention to forcefully strike, I am not satisfied that he turned his mind to the possible consequences at all. I accept the infliction of further blows when Mr Hadden was down elevates the criminality somewhat. I would not regard the matter as "alcohol fuelled" in the sense with which that expression has been used in Loveridge and similar cases. But certainly as I have found, alcohol, as it so often does, played a not insignificant part in what occurred. At the same time one must be careful to avoid straying into factors relevant to the quite separate offence, which was no-billed, of assault occasioning death constituted by s 25A Crimes Act 1900 (NSW). That he failed to stay and attempt to render aid to his friend reflects poorly on him. I do not regard that factor of itself, in the circumstances, as elevating the criminality. In truth there was no aid that either he or any other lay person could have rendered capable of making a difference to the ultimate outcome. Moreover, the contribution of Mr Hadden's provocation should not be overlooked.
While all manslaughter is serious because it involves the unlawful taking of a human life, to the extent to which assessments are required to be made, I would not regard it as a serious case like Loveridge, nor is it in that "almost an accident" category. If I must articulate a rating, I would say it falls somewhat short of the mid-range.

Victim Impact Statements

I have had the very considerable benefit of hearing and receiving Victim Impact Statements from close members of Mr Hadden's family. His mother, Mrs Lynette Hadden and his sister, Ms Kerry Hadden bravely read their statements themselves to a relatively crowded court, having regard to physical distancing requirements. The statements of Mr Hadden's older brother Brett, his daughter, Emma Durrance and his niece, Jasmine Schmidt were read by a support person from the Homicide Victims Support Group. It was difficult not to be moved by Mrs Hadden's statement as she at times struggled through her tears to explain the great loss a mother suffers when her child pre-deceases her. Each and all of the statements in an eloquent and moving way explained the sense of loss felt by the whole extended Hadden family and their ongoing grief over Mr Hadden's death. The natural enjoyment of significant family events is reduced by reason of his passing.
I should say in this context that evidence was led at the trial as tendency evidence of Mr Hadden's criminal history. It was said the conduct involved would establish to the jury's satisfaction that he had a tendency to behave aggressively or violently when intoxicated. However, as I have emphasised all human life is valued equally by the law. More pertinently the high regard of his family and the love with which they regarded him amply demonstrates that that evidence did not tell the whole story about Chad Hadden.
As the Crown have asked me to do, I will have regard to the evidence of the impact of the death of Mr Hadden on his family as an aspect of the harm done to the community by Mr Holmes offending. In saying this I acknowledge that no sentence I may impose is capable of restoring Mr Hadden to his family. Nor can it assuage the ongoing grief that close family experience over the death of a loved one.
On behalf the Supreme Court I offer my sincere condolences to the whole Hadden extended family and especially Mrs Lynette Hadden and his daughter, Emma Durrance.

Mr Holmes Subjective circumstances

I have also had the benefit of receiving a statement in both oral and written form from Mr Holmes's mother, Mrs Heather Holmes and from Ms Heidi Gairns, a close platonic friend for some years. Mr Holmes again gave sworn testimony and was cross-examined by the Crown.
Mr Holmes was born in Newcastle in 1974. He is now 47 years of age. He was 43 in January 2018. He did not know his biological father and was born to a single mother who unfortunately struggled with substance abuse, particularly heroin. He remained with his mother for those first five critical formative years in the Cooks Hill area. At the age of five he went to live with his aunt and uncle who adopted him, and he came to regard them as his mum and dad. They raised him as their own together with their biological daughter Tara. They provided him with a good and loving home free from drug or alcohol abuse or family violence. Mr Holmes Senior was a diesel mechanic and Mrs Holmes worked at Rundles.
Mr Holmes completed his School Certificate and obtained an apprenticeship as a refrigeration mechanic. Unfortunately he did not complete this training because the employer company failed. However, he did obtain related employment in air-conditioning installation which he performed for ten years. From the age of 32 he performed volunteer work at the Hunter Wetland Centre in Shortland. From his mother's statement I infer that he had a gift for work of this type.
During his formative years he was fully involved in organised sport and learned to play the guitar and drums, interests which he has maintained throughout his adult life.
At the age of 34 he formed a domestic relationship with Sarah with whom he had two boys. Regrettably the younger son suffers difficulties due to autism and probable attention deficit hyperactivity disorder (Exhibit 6). Unfortunately the relationship with Sarah did not last and they separated after about three years. This was partly due to the pressure that Sarah's own serious medical difficulties imposed upon the relationship. Those difficulties in turn made it difficult for her to care for the boys on her own and Mr Holmes assumed responsibility as the primary parental caregiver when they were still infants. They continued to live with him until he was taken into custody on 6 March 2019 after he was committed to stand trial for murder. The boys are now in the care of their mother and from his evidence; Mr Holmes accepts that she will continue to be the primary caregiver even after his eventual release from prison.
Until he went into custody he had part-time work as a handyman/gardener at a tourist accommodation business in the Hunter Valley. I have received a reference his employer (Exhibit 3) who speaks very highly of Mr Holmes describing him as a "trustworthy, reliable and valued employee" who was able to work unsupervised and run the property in the absence of the owners. Mr Wosniak stated that it was a loss to the business when Mr Holmes was taken into custody. He would have no difficulty or hesitation in recommending him to a future employer notwithstanding what he knows about "the serious legal charges brought against Mr Holmes".
The statements of Mrs Holmes and Ms Gairns persuade me that he was a responsible, caring and nurturing parent to his boys. From his own evidence I am satisfied that other than some experimentation with cannabis as a youngster he was not an abuser of illicit substances. Again as a youngster he would drink to excess with mates on the weekend, but in his maturity, he describes his intake of alcohol as "moderate". This aspect of his evidence was not challenged in cross-examination.

Mr Holmes's criminal record

Prior to the offending Mr Holmes had a virtually clear criminal record. There were two very minor matters as a juvenile dealt with by fines. In the year 2000 some traffic matters, I infer arising out of a collision due to his fault were dismissed under s 10 of the Sentencing Act without conviction on condition he undertook a Traffic Offenders Diversionary Program. I infer he completed the program satisfactorily.
This inconsequential record, but for one matter I will mention in a moment, brings into consideration the leniency a first time offender is entitled to claim so far as there is scope for it in the sentencing task.
The matter to which I referred is that on 15 February 2019 he came to the attention of police and was charged with six counts of possessing unauthorised prohibited or unregistered firearms. Included in these matters was a count of possessing the ammunition relevant to the firearms as well as possession of a knife in a public place. As the circumstances unfolded in evidence before me, these matters are not anywhere near as serious as they sound. The weapons were gel blasters moulded like an actual gun, the ammunition was the pellets for the guns and the knife was a homemade knife he fashioned from plate steel. The knife was in a public place because it was in the boot of his car in a bag with the "weapons" when he was spoken to by police about the matter.
The matter came to the attention of police following a disagreement with his former partner which caused her to report the matter to police. In his evidence he explained that at the time of acquisition of the weapons he did not know they were illegal. He bought them online and they were utilised at home during play with his boys. I am satisfied that while illegal, his possession of these items did not present any risk to the public whatsoever. If I may say so, the sentencing magistrate who dealt with the matter on 4 March 2019 obviously took the same view (I do not have his or her Honour's reasons) as minor fines only were imposed. Really, the equivalent of a judicial slap across the wrist were such corporal punishment permissible these days. Clearly the criminality involved was at the very lowest end of the scale for offending of that type. In my view, these convictions make no difference to the assessment of his record I previously made.

Aggravating and mitigating factors under s 21A Sentencing Act

The Crown has not raised any specific aggravating factors for my consideration but relies upon what it submits is the serious nature of the offending involved. I will deal with the mitigating factors separately. I have already held that Mr Holmes does not have any significant record of previous convictions whatsoever. Moreover, the evidence I have referred to of his previous pro-social life establishes to my satisfaction that he was a person of good character. This is borne out by his continued good conduct while in custody since 6 March, 2019. I was informed without objection that he holds a position as a sweeper in his current placement which indicates he is a trusted inmate. Moreover, there is no record of any breaches of custodial discipline noted on his custodial record.

Remorse

The question of remorse was significantly in issue. Mr Holmes, as I have said, gave evidence relevant to this issue. I should record that he accepted responsibility for his action by offering to plead guilty to the charge of manslaughter, rather than murder on 12 December 2018, which offer was rejected by the prosecution. He made a similar offer on 2 March 2019 prior to his committal for trial for murder. I also accept the statements of his mother and Ms Gairns that he is remorseful. In his mother's case she said that in the months prior to Mr Hadden's death, Mr Holmes had regularly expressed the hope to her that "Chad would be OK". After his death she said Mr Holmes: "Cried and said 'I'll have to live with this for the rest of my life. Chad was and still is my friend mum. He'll always be my friend. I'll never get over this.'
Ms Gairns who holds a Diploma in Counselling and Community Services said that when Mr Holmes would speak to her "about what happened" (Exhibit 2) he was "very remorseful, never speaking a bad word but instead always saying how sorry he was that this had happened".
In his evidence, Mr Holmes, read from a statement he had prepared in his own hand (Exhibit 4) in which he expressed to the Hadden family his deep sorrow for his "contribution" to the passing of Chad. He said, "I am deeply devastated for your loss". Although he continued to maintain his belief, which I have rejected, that his actions were necessary to defend himself and his denial of punching Mr Hadden when he was on the ground, he said, "every night I lay down in bed since that day I have relived the incident over and over, now after 3 years my pain and sorrow does not ease (sic)". He said he "loved Chad like a brother" and was "very happy to have him back in [his] life".
He was challenged about the sincerity of his expression of remorse in cross-examination on a number of bases. First, that he was "a late convert to remorse"; secondly his failure to accept full responsibility by adhering to his belief in self-defence, which I have rejected; thirdly his denial of delivering the further punches; and finally his acceptance of making a contribution to, rather than being the cause of, Mr Hadden's death.
I accept there are complexities in Mr Holmes's position which are difficult to reconcile with the view I have formed of the facts of his offending. I accept his expressions of contrition, deep sorrow and empathy are sincere enough. However, his attachment to self-defence and denial of the nature of the subsequent blows are problematic.
I accept the Crown's argument that by walking away and from the answers he gave during his police interview that he was not then remorseful but sought to justify his actions by reference to the provocation he was offered by Mr Hadden. However, human experience teaches us that a condition like remorse may take some time to fully unfurl. So far as his use of the expression "contribution" is concerned, technically that may be a legally accurate statement. The first punch was not the sole cause of Mr Hadden's death. The evidence at the trial established that the direct and immediate cause of his demise were complications following the second surgery. However, splitting such hairs sits uneasily with an unqualified expression of remorse. I have given the matter anxious consideration. Having heard him give evidence twice, I am prepared to accept that Mr Holmes wrong-headedly has genuinely persuaded himself that he acted in self-defence rather than under a loss of control which was responsive to the degree of provocation Mr Hadden offered him. I am using the expression "provocation" in the sense in which it is used in s 21A(3)(c). Obviously, he will need to confront his erroneous belief at some stage.
Notwithstanding these reservations, having regard to the evidence of Mrs Holmes, Ms Gairns and what I regarded as the sincerity of Mr Holmes's sworn statement, I am satisfied on the balance of probabilities that Mr Holmes is remorseful for his offending even if his remorse is not quite as complete as one would have liked.
Given his clear record, his previous good character and the significant progress he has made along the path of remorse, I am satisfied that he is very unlikely to re-offend and that he has excellent prospects of rehabilitation. Like Mr Hadden, he has very strong and positive family and community connections. I have no doubt they will stand Mr Holmes in very good stead upon his release from custody.

The plea of guilty

I turn now to the difficult question I have adverted to earlier about the discount to which Mr Holmes is entitled due to his plea of guilty to manslaughter. The difficulty arises out of the interpretation of Division 1A of Part 3 of the Sentencing Act arrived at by my learned colleague Cavanagh J in R v Black (No 2) [2021] NSWSC 77. The relevant facts in that case relevant to the plea of guilty to the alternative charge of manslaughter are substantially the same as the facts in the present case. His Honour dealt with this topic at [123]-[149] of his judgment. With respect, the matter had been fully argued and his Honour gave the issue serious and careful consideration. Essentially his Honour took a grammatical approach to the interpretation of the key provisions involved in the question in that case, and in this, ss 25D and 25E of the Sentencing Act. The effect of his Honour's decision is that the mandatory sentencing discounts available for the utilitarian value of a guilty plea under s 25D are not engaged by an offer to plead guilty. They are engaged only by the actual entry of the plea of guilty in the circumstances delineated in s 25D(2). That is to say, to obtain the reduction of 25 percent in the sentence mandated by s 25D(2) the guilty plea must be formally entered and "accepted by the magistrate in committal proceedings for the offence" in court before committal. I repeat an offer to plead, even if rejected by the prosecution, does not engage s 25D.
His Honour also reasoned that the provisions of s 25E by which offers to plead guilty can engage an entitlement to a specified sentencing discount only apply where the offer relates to a "different offence", "not the offence the subject of the proceedings when the offer was made": s 25E(1)(b).
As I understand his Honour's reasoning, with respect, an offer to plead guilty to an offence which is specified in a charge certificate under s 66 Criminal Procedure Act 1986 (NSW) ("Procedure Act") is an offence which is the subject of the committal proceedings against the accused person and is not legally sufficient to engage either of ss 25D or 25E, even where that offence is specified in the alternative only to another offence. And, if the offence is specified, even in the alternative, in the charge certificate, it is not a "different offence" for the purpose of s 25E. This is so notwithstanding that s 75 Procedure Act requires the certification in the confidential Case Conference Certificate, of the following matters, inter alia: … (a) the offence or offences with which the accused person had been charged before the case conference and which the prosecution had specified in the charge certificate as offences that will be proceeding… (b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences, (c) any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences, (d) whether the accused person or prosecution has accepted or rejected any such offers, (e) the offence or offences from which the prosecution will seek committal for trial or sentence, …. (My emphasis.) The Case Conference Certificate is confidential by virtue of s 79 of the Procedure Act. Section 80 makes it an offence for any person to publish any Case Conference material. Under s 78 of the Procedure Act, Case Conference material is not admissible generally but there are exceptions including in relevant sentencing proceedings in accordance with Part 3 of the Sentencing Act: s 78(2)(a). These sentencing proceedings are so covered.
A judge of the Supreme Court sitting at first instance is not bound by a decision of another first instance judge, but for reasons of judicial comity and legal certainty will generally follow another judge unless convinced the previous decision is legally incorrect.
It is necessary to set out his Honour's conclusions as follows: [141] Prior to the offender making an offer to plead guilty to manslaughter, a charge certificate was filed at Port Macquarie Local Court certifying the charge of murder and in the alternative, the charge of manslaughter. After that charge certificate was filed, the offender made the offer to plead guilty only to manslaughter. The plea offer was recorded in the case conference certificate. It was not accepted by the Crown and not subsequently withdrawn. …. [144] Statutory construction should always start with the text of the provision. Section 25E(2) of the Sentencing Procedure Act commences with the words, "[i]n determining the sentence for an offence". [145] I am determining the sentence for the offence of manslaughter. [146] I am not determining the sentence for any other offence under s 25E(2)(a). [147] I accept that the offender made an offer recorded in a negotiations document to plead guilty to that offence but that offence was the subject of the proceedings when the offer was made. The fact that it was an alternative or lesser charge or that the Crown at that time did not wish to accept a plea of guilty to the lesser charge and wished to pursue the charge of murder, does not mean that the offence was not the subject of the proceedings when the offer was made. [148] By the time the offer had been made, the alternative charge of manslaughter had been preferred. The charge certificate had been filed in the Local Court. Those charges remained the same from that time and throughout the conduct of the proceedings. [149] In circumstances where there were two charges and the offender is being sentenced for one of those charges, it cannot be said that the charge of manslaughter was not the subject of the proceedings at the time the offer was made. In those circumstances, the only available discount to the offender is set out in s 25D(2)(b) being 10 per cent. The offender is thus entitled to a discount of 10 per cent on the sentence which I apply to the head sentence I otherwise would have imposed. I regret to say, having given the matter my earnest and close consideration, I have come to a different conclusion from Cavanagh J, which given the importance of this issue to the liberty of every member of the community I feel compelled to apply.
Essentially, in my opinion an offence specified in a Charge Certificate only as an alternative to a more serious offence certified in that Charge Certificate is not the offence, the subject of the proceedings when the offer was made. I set out s 25E of the Sentencing Act in full: (1) Discount where offer not accepted In determining the sentence for an offence, the court is to apply a sentencing discount in accordance with this section if - (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and (c) the offer was not accepted by the prosecutor, and (d) the offer was not subsequently withdrawn, and (e) the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence. For the purposes of this subsection, an offence is reasonably equivalent to a different offence if - (a) the facts of the offence are capable of constituting the different offence, and (b) the maximum penalty for the offence is the same or less than the different offence. (2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if - (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and (c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and (d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender. (3) Discount variation - offer to plead guilty to different offence The discount to be applied by the court is as follows - (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made before the offender was committed for trial, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offer was made after the offender was committed for trial and at least 14 days before the first day of the trial of the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if the offer was made less than 14 days before or on or after the first day of the trial of the offender. (My emphasis.)
To recap the facts, the first offer to plead guilty to the alternative of the manslaughter was made on 12 December 2018. It was repeated in slightly different terms on 2 March 2019 before Mr Holmes was committed. The first offer was rejected before committal and the second offer was not accepted before committal, and indeed was never accepted. Mr Holmes formally entered the plea of guilty to the alternative count of manslaughter when arraigned in this Court on 5 April 2018.
In arriving at this conclusion different from that of Cavanagh J, I have placed emphasis upon the use of the indefinite article in paragraph (a) of subsection (1) of s 25E to qualify "offence" and the definite article qualifying "offence the subject of the proceedings" in paragraph (b) (my emphasis). I accept that commonly an accused person may be required to stand trial in relation to a large number of separate offences, all included in the one indictment and which are not alternatives: ss 29 and 29A Procedure Act. But when that occurs each offence, although all tried together, must be proved individually, and if the accused is convicted, considered separately for sentencing purposes. That is a different situation from the situation here, where the Charge Certificate, and subsequently the Indictment, contain more than one count, but each strictly in the alternative. I make these observations to demonstrate that the singular use of "an offence" in paragraph (a) and "the offence" in paragraph (b) represents a deliberate drafting choice. Where an accused stands trial on two or more separate charges at the same time, the question of an available reduction for an early plea will be considered separately for each charge of which the accused is convicted. In my opinion these matters of context displace the general rule created by s 8(b) Interpretation Act 1987 (NSW) that "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form".
I am also of the view that treating matters which are strictly alternatives, either because they are included offences or statutory alternatives, as different offences for the purpose of s 25E is more consistent with the whole scheme of the legislation reading Division 1A of Part 3 of the Sentencing Act together with Part 2 of Chapter 3 of the Procedure Act, particularly Divisions 4 and 5 thereof. The approach is also generally consistent with s 153 of the Procedure Act entitling a person to plead guilty on arraignment to an included, but uncharged offence putting the Crown on its election whether to accept the plea in discharge of the whole indictment.
Manslaughter is an included offence in any charge of murder. Whether specifically pleaded or not, manslaughter is always an available alternative to a charge of murder. It is to my mind unreasonable to approach 25E on the basis that, if the only charge specified in the Charge Certificate is murder, an offer to plead guilty to manslaughter prior to committal is a different offence for the purpose of s 25E, but the same offer is not where the prosecution chooses to specify manslaughter in the Charge Certificate, but strictly in the alternative only. Section 70(2) Procedure Act specifies that the principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty. Normally, where murder is charged, an offer to plead guilty to manslaughter if made is intended to operate in satisfaction of the murder charge. The purpose of the offer is not to permit the prosecution to "pocket", as it were, the guilty plea as a back-up to the principal charge lest the jury find the accused not guilty of murder, at the expense of the accused forfeiting his or her chance of an outright acquittal.
Even where manslaughter is specified in the alternative to murder, the practical reality is that upon committal and following arraignment it is the murder charge which proceeds, with manslaughter left to the jury only as an available alternative (where the facts allow). I accept, as Cavanagh J said, that under the current legislation entitlement to a reduction for a plea of guilty must depend upon the meaning of the operative provisions. One may accept that pleading guilty to a specified alternative before the magistrate is a condition of a reduction which is clear enough. However the operation of the scheme ought not depend upon whether the alternative is specified or not, unless specification of all available alternatives in the charge certificate becomes itself a matter of invariable practice.
Where choices as to the meaning of a statutory provision are available, the law will eschew a meaning which gives rise to an unreasonable result in favour of an available reasonable interpretation.
In my judgment for these reasons Mr Holmes is entitled to a 25 percent discount for his offer to plead guilty in the Local Court in accordance with s 25E of the Sentencing Act. Once one accepts that the alternative offence is a different offence for the purpose of s 25E(1)(b), all of the conditions necessary to entitle him to a reduction of 25 percent in the sentence that would otherwise be imposed, under s 25E(3)(a) are satisfied.

Date of commencement of the sentence

From the Crown's Sentencing Summary, I accept Mr Holmes has spent 2 years; 2 months and 16 days in custody on remand. After his arrest on 14 January when he was charged with assault he was released to bail. Mr Hadden died on 27 June 2018 at which time Mr Holmes was charged with murder, he was re-arrested and spent one day in custody before being granted bail at court. In response to a detention application made by the Crown his bail was revoked upon his committal on the murder charge on 6 March 2019. He has remained in custody since then. He was also in custody for one day following his arrest on the firearm charges, but that infringement of his liberty related solely to those matters and I do not propose to take it into account in relation to the sentence I propose to impose upon him for the manslaughter of Mr Hadden. Accordingly it seems to me appropriate to commence the sentence I will impose from 5 March 2019 to give Mr Holmes full credit for time spent in custody solely referable to this matter in accordance with s 47(3) of the Sentencing Act.

Sentence

The sentence I impose must take into account all of the purposes of sentencing so far as they are relevant and all facts, matters and circumstances relevant to fixing the appropriate sentence for this offence and this offender. The purposes of criminal punishment include the protection of society, the deterrence of the offender and others who might be tempted to offend, retribution and reform. As I have stated, in a sentence for manslaughter vindication of the life unlawfully taken and denunciation of the actions of the offender are of central importance. Moreover, generally offences of violence bring into focus the need for general deterrence. That need remains in the present case notwithstanding what I regard as Mr Holmes's compelling subjective circumstances as I have outlined them. Given in particular his prior good character, the extent to which it is unlikely that he will ever re-offend and his excellent prospects of rehabilitation, the need for personal deterrence is much diminished in his case.
When assessing the objective seriousness of this offending, I have borne in mind that unlike other cases regrettably Mr Hadden himself had a part to play in bringing about the offending and this reduces Mr Holmes moral culpability but only somewhat.
It is necessary for me to fix a sentence that has both a non-parole period and an additional term. The non-parole period is the minimum time which justice requires Mr Holmes to spend in full time custody for this offence. However, release at the expiration of a non-parole period is not automatic. No one should be under any illusions about that. Whether or not an offender is released to his parole at the expiration of the non-parole period depends upon the independent decision of the State Parole Authority. While it not for me to second guess the exercise of that Authority's discretion in any particular case, Mr Holmes's prospects of release when first eligible may well depend upon his continued good behaviour in custody and him accepting and satisfactorily completing any programs of rehabilitation to which he is referred by the requisite correctional authority.
It is implicit in everything I have said so far that no sentence other than one of full-time custody is appropriate in this case to satisfy all of the relevant purposes of sentencing. No one suggested otherwise.
Both counsel provided me with information about other sentences passed in cases of manslaughter in what might be styled broadly similar factual scenarios. As the unanimous Court of Criminal Appeal pointed out in Loveridge at [226]: There is, in truth, no range of sentences for offences of manslaughter which may be said to have a single common component relating to the mechanism of death (such as the victim's head striking the ground after a blow to the head). To the same effect there is no range of sentences for manslaughter offences said to have been committed by use of a knife or a rock or some other implement. The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or tariff, for a particular form of manslaughter. Moreover the infinite variety of circumstances in which manslaughter offences occur make it less than meaningful to attempt speak of sentencing patterns or trends for manslaughter in the context of an individual case.
Balancing in accordance with the instinctive synthesis all of the competing considerations to which I have referred in this judgment, including but not limited to the seriousness of the offending and Mr Holmes's compelling subjective case, I would have passed a sentence of 7 years and 8 months duration. Applying the 25 percent discount, the total head sentence is reduced to a period of 5 years and 9 months commencing on 5 March 2019 and expiring on 4 December 2024.
No specific submission has been addressed to me in relation to special circumstances justifying a variation in the statutory ratio between the head sentence and the non-parole period, but I have given consideration to that matter. It seems to me that I have given full weight to all relevant matters favouring the offender including the consideration that having regard to his record that this is his first time in custody and to make a further discount on the non-parole period to take account of such factors would amount to impermissible double counting. Applying the usual statutory ratio, a period of 4 years 3 months and 22 days is produced. I propose to reduce this to a period of 4 years and 3 months to dispense with the artificial appearance of precision in fixing sentences of imprisonment. Accordingly, the non-parole period will be one of 4 years and 3 months commencing on 5 March 2019 and expiring on 4 June 2023 when Mr Holmes will first be eligible for parole.
Mr Holmes I am obliged to inform you that manslaughter by unlawful and dangerous act is a serious violent offence under the Crimes (High Risk Offenders) Act 2006 (NSW) and I am obliged to draw to your attention that you may be subject to an application under that Act at the expiration of your sentence. Whether such an application is made is a matter for the decision of the Attorney General. It is not for me to say but your future conduct and co-operation in custody may be an important consideration taken into account when such a decision is made.
Mr Holmes please stand. On your plea of guilty you have been convicted of the manslaughter of Chad Hadden. I sentence you 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. You will be first eligible for release on parole after the expiration of the non-parole period on 4 June 2023.

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: 24 May 2021

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

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