R v Henzon, Kaycee
[2012] NSWSC 726
•29 June 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v HENZON, Kaycee [2012] NSWSC 726 Hearing dates: 01/08/2011, 09/03/2012, 01/06/2012 Decision date: 29 June 2012 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: On each count of obtaining money by deception, FT 18 months from 10.12.09. On murder, 18 years, NPP 13 years, from 10.06.11.
Catchwords: CRIMINAL LAW - sentence - murder, obtain money by deception - reckless indifference to human life - spontaneous killing - pleas of guilty in Local Court Legislation Cited: Criminal Case Conferencing Act 2008
Crimes Act 1900Category: Principal judgment Parties: Regina (Crown)
Kaycee Henzon (offender)Representation: Counsel:
A McCarthy (Crown)
I McClintock SC (Offender)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Crown)
SE O'Connor - Legal Aid Commission (offender)
File Number(s): 2009/279367
REMARKS ON SENTENCE
HIS HONOUR: The offender, Kaycee Henzon, has pleaded guilty to the murder of Nancy Margaret Brayshaw in her home at Epping on 19 November 2009. She has also pleaded guilty to two counts of obtaining money of Ms Brayshaw by deception on 4 November and 18 November 2009. In addition, she has asked that I take into account on a Form 1 two further offences of obtaining money by deception, on these occasions money of George and Helen Kozma.
Facts
The case is unusual because, although the offender has pleaded guilty to these offences, I have no evidence about what led to them and, in particular, no evidence of the circumstances in which the murder was committed. The offender has not put forward any account of these events. After her arrest she declined to be interviewed by the police, and she did not give evidence in these sentence proceedings. That being so, I have a statement of facts which recounts the offences in chronological order and which, as far as the murder is concerned, can do no more than summarise the Crown's circumstantial case against the offender.
It is necessary to set out the whole of that statement of facts. With some minor amendments, it is as follows:
The offender, Kaycee Udele Henzon, born 17 April 1983, commenced employment with the National Australia Bank (NAB), Carlingford Branch on Tuesday 18 August, 2009, as a bank teller.
The deceased, Nancy Margaret Brayshaw, born 7 January, 1937, was an account holder with the NAB Carlingford Branch. The offender met the deceased in the course of performing her duties at the bank.
Mr and Mrs Kozma
About 1.09pm on Monday 26 October, 2009 the offender conducted a transaction with a married couple, George and Hala Kozma, who held an account at the NAB Carlingford Branch. The Kozmas disclosed to the offender that that they were returning to live overseas. The victims completed a withdrawal voucher for $410.00 and received cash to that amount over the counter from the offender.
Sometime later that day the offender added the number '5' in front of the '$410.00' changing the withdrawal voucher to read $5410.00, thus removing an additional $5000.00 from the Kozmas' account. [First offence on the Form 1].
At 4.35pm that day, after the branch had closed for trading, the offender deposited $1,200.00 into her personal NAB account.
National Australia Bank records show that a Customer Profile and Bank Account were created at the Carlingford Branch in the name of the mother of the offender on 3 November 2009, at 2.20pm. The offender opened the account using documentation in her mother's name. She did this by asking another staff member to help her create a customer profile and bank account in her mother's name. Permission to do this was sought and given by a senior staff member. She provided her mother's identification documents to open the account. She said her mother was too sick to attend the bank herself.
About 3.58pm on Tuesday 3 November, 2009 the offender fraudulently withdrew a further $11,000.00 from the account of George and Hala Kozma. [Second offence on the Form 1]. At the time the account holders were not present at the NAB Carlingford Branch. At 4.01pm that date the offender credited $9,500.00 into the account of her mother, with a transaction narrative 'Fr: Mrs Deleon'. At 4.05pm that date the offender credited her personal NAB account with $1,500.00 with a transaction narrative 'Physiotherapy'.
Miss Brayshaw (counts 2 and 3)
At 2.36pm on Wednesday 4 November, 2009 the offender fraudulently withdrew $15,000.00 from the account of the victim Miss Brayshaw. Miss Brayshaw was not present at the NAB Carlingford Branch at the time of this transaction. [Count 2 in the indictment]. At 2.42pm the offender credited the NAB account of her mother with $2,000.00. At 2.46pm the offender again credited the NAB account of her mother with $13,000.00 with a transactions narrative of 'ATO'.
At that time the offender drew a bank cheque from the account of her mother for the amount of $22,500.00 made payable to 'Larke Hoskins' (a Honda motor vehicle dealership). This bank cheque was then used to purchase a 2009 Black Honda Jazz NSW registration BLR-73V on 6 November 2009.
On 13 November 2009, the offender became aware that the unauthorised withdrawal of monies from the Kormas' account had been reported to the NAB.
On 16 November 2009, the prisoner placed an on- line advertisement in the Trading Post seeking to sell the black Honda Jazz that she had taken delivery of on 6 November 2009.
At 2.37pm on Wednesday 18 November, 2009 the offender fraudulently withdrew $100,000.00 from the account of Miss Brayshaw. [Count 3 in the indictment]. At this time CCTV shows Miss Brayshaw is not in the Carlingford Branch. The offender then credited this $100,000.00 into an NAB account in the name of her ex-husband's younger brother. This account had not been used for several years and was in debit by $1. The offender then drew a bank cheque that day for the amount of $99,999.00 from that account.
The murder (count 1)
Around 10:06am on Thursday 19 November, 2009, the offender is recorded on CCTV entering the Eastwood branch of the Westpac Bank. The offender is seen to complete a deposit slip before approaching a teller where the offender deposited the $99,999.00 cheque into the Westpac Account of the offender's mother. At the time the offender made an additional payment to have the cheque cleared within 24 hours. In excess of $200,000.00 remained in Miss Brayshaw's account.
Soon after, the offender drove to Miss Brayshaw's address and entered the house.
Some time before 7 pm that day the offender drove to her residence at Unit 20, 1 - 7 Gaza Road, West Ryde, where she spoke to her partner Mr Rey Ramos and told him about an alleged sexual assault upon her. The offender and Ramos then drove to the work place of the mother of the offender at Beecroft, and together they all drove to Eastwood Police Station to report this incident.
About 7.00pm the offender attended Eastwood Police Station, where she reported an allegation of a sexual assault having been committed upon her earlier that day at 9 Cooke Way, Epping, the residence of the victim Miss Brayshaw.
The offender was taken to Royal North Shore Hospital where a Sexual Assault Investigation Kit (SAIK) was performed upon her.
Following her attendance at the hospital the offender was taken to Ryde Police Station, where she provided an electronically recorded statement in which she gave police an account of the alleged incident.
Henzon alleged an incident where she and Ms Brayshaw were assaulted by strangers - the account was a complete fabrication and the detail provided was false.
Whilst the offender was at Royal North Shore Hospital, police attended 9 Cooke Way, Epping, the residence of Miss Brayshaw. A boarder led police to the boarder's bedroom where she had located Miss Brayshaw deceased on the floor.
Miss Brayshaw was found fully clothed laying on her back with both arms extended above her head. A white singlet was in her left hand.
A Post Mortem carried out on Miss Brayshaw determined the cause of death was asphyxia. The pathologist, Dr. Rainie Van Vuuren, in her report provided a summary of significant post mortem findings.
About 11.00am on Thursday 19 November, 2009, Andrew Lawler, a cousin of Miss Brayshaw arrived at Miss Brayshaw's residence to take Miss Brayshaw to a pre-arranged lunch engagement.
A subsequent examination by a police expert of the offender's mobile phone showed triple 0 had been dialled 3 times, once at 11.28am and twice at 11.39 am, but each call was of zero duration. The expert could not tell if the calls were terminated by the network or the user.
A second witness who was in the front garden of the house next door to Miss Brayshaw's on 19 November 2009 described to police seeing a female matching the description of the offender walk down the driveway of Miss Brayshaw's premises from the rear yard to the street about 3.30pm.
On Saturday 21 November, 2009 the offender contacted investigating police and advised that she had further information regarding the alleged incident in which she was involved. Arrangements were made by police to meet with the offender on Sunday 22 November, 2009.
On that day the offender attended the Ryde Police Station, where she participated in an electronically record interview. The offender again gave police a false account of events.
About 5.15am on Thursday 10 December, 2009 police attended Unit 20, 1 - 7 Gaza Road, West Ryde and there arrested the offender. The offender was conveyed to Ryde Police Station where she was entered into custody.
Whilst in custody, in accordance with custody provisions, the offender had a telephone conversation with a solicitor. About 8.40am Mr Laurie Myers, solicitor, attended Ryde Police Station and had a conversation with the offender. Following that conversation, the offender declined to take part in an interview. The offender was recorded formally declining to take part in an interview. The offender was then charged with the murder of Nancy Brayshaw. The offender appeared at Ryde Local Court that day where she was refused bail.
In September 2010, the offender advised the prosecution that she had caused the death of Miss Brayshaw and offered to plead guilty to manslaughter. The offer was not accepted. Over the following months discussions were had between the parties in an attempt to settle an agreed statement of facts which could be tendered at committal in relation to a charge of murder. Agreement could not be reached and on 29 March 2011 the offender pleaded guilty to the murder of Nancy Brayshaw in Central Local Court, Sydney. She also pleaded guilty to the two charges of obtain money by deception on Ms Brayshaw, and two charges of obtain money by deception on the Kozmas. She was then committed to the Supreme Court for sentence.
This statement of facts was supplemented by some of the material in the Crown brief. From that material it emerges that Ms Brayshaw's cousin, Mr Lawler, had spoken to her by phone a little after 7am that day. When he arrived at her home at about 11am, he was unable to get any response from her after tapping on the kitchen window and calling out to her on two occasions. He also rang her twice but the phone did not answer. The evidence suggests that the offender was in the home at the time he arrived. Phone records disclose a very brief call from the offender's mobile to Ms Brayshaw's phone at 10.27am, presumably to check that Ms Brayshaw was home after she had completed her deposit at the Eastwood branch of the bank. Presumably, it would not have taken long to get from Eastwood to Ms Brayshaw's home at Epping.
This raises a question whether Ms Brayshaw was already dead at the time Mr Lawler arrived, or whether his arrival precipitated the actions of the offender which led to her death. It is consistent with the triple-0 emergency calls from the offender's mobile at 11.28 and 11.39am, although why those calls were immediately terminated remains unexplained. The facts refer to the observation of a neighbour of a person fitting the offender's description leaving Ms Brayshaw's home some hours later, at 3.30pm. If it was the offender, that also is unexplained. All that said, I do not find these matters to be of any assistance in divining the circumstances of the murder.
Dr Van Vuuren's post-mortem findings and report were reviewed by Professor John Hilton, another forensic pathologist. Put shortly, the cause of Ms Brayshaw's death was accepted to be asphyxia. The evidence conveyed that pressure had been applied to her mouth, nose and neck, and other injuries were observed consistent with having been sustained in a struggle. Finger nail scrapings from Ms Brayshaw disclosed DNA matching the offender's, and there was evidence that the offender herself had injuries also consistent with a struggle.
The Crown prosecutor noted that at the time of the killing the offender was 26 years old and Ms Brayshaw was 72. He submitted that the injuries inflicted upon the offender by Ms Brayshaw support the inference that she was fighting for her life in an attack mounted by the offender, and that I should conclude that the offender intended to kill her. Counsel for the offender, Mr McClintock SC, argued that I should find that she acted with reckless indifference to human life. The Crown prosecutor put his case on the basis that the intent was formed at or about the time of the killing. He did not suggest that the killing was premeditated, that is, that the offender went to Ms Brayshaw's home for the purpose of killing her.
A decision on this issue is bedevilled by the lack of any evidence of the precise circumstances in which the killing occurred. I have given the matter careful consideration, and I find that the evidence is as consistent with reckless indifference to human life as it is with an intent to kill. That being so, I cannot be satisfied beyond reasonable doubt that the offender did intend to kill and she will be sentenced on the basis of reckless indifference to human life.
There remains the question of the offender's purpose in going to Ms Brayshaw's home that morning. Robbery can be ruled out. Police who attended the scene found $18,000 in cash in a readily accessible place inside the house. Plainly enough, the visit was related to the offender's defrauding of Ms Brayshaw. It followed upon her depositing into her mother's account the proceeds of her fraudulent withdrawal from Ms Brayshaw's account the previous day. It may also have been influenced by her discovery some days earlier that her unlawful withdrawal of money from the Kormas' account was apparently under investigation. That, most likely, is why she set about selling the Honda Jazz. (Indeed, in the later afternoon of the day of the killing she had a phone conversation with a prospective buyer of that car.)
Mr McClintock argued that the facts were consistent with her attempting to marshall some of the defrauded money so as to reach a compromise with Ms Brayshaw. However, I find it improbable that the purpose of her visit was to make a genuine arrangement to repay Ms Brayshaw. I think it more likely, as the Crown prosecutor submitted, that she was seeking in some way to prevent the discovery of her fraud.
More than that I cannot say. All that can be said is that there must have been a heated exchange between the two women which degenerated into a physical struggle. The violence may well have been initiated by the offender, but I accept that it was spontaneous.
Subjective case
Apart from the offender's health, to which I shall refer, the information I have about her background is even more spare than the evidence about the offence itself. All I know about her which is of any significance is that she was 26 years old at the time of the offence and is now 29, and she has no previous convictions.
Early in 2011, while in custody, the offender was found to be suffering from an auto-immune disease, which has been the subject of extensive medical investigation. I have received reports from specialists in immunology and haematology, who have examined her at Westmead Hospital, together with a report from Justice Health concerning her management in the prison system. She has been diagnosed with antiphospholipid syndrome and possible systemic lupus erythematosus. The reports do not make easy reading but, as I understand it, these are disorders relating to the production of antibodies in the blood which affect the clotting system. Associated with this, as I also understand it, is a diagnosis of thrombocytopenia, affecting the level of platelets in the blood, which are another important component of the clotting system.
From the report of Dr Badami, a staff specialist with Justice Health, it appears that her condition is being managed and she is being reviewed regularly by specialists at Westmead Hospital. Her condition is stable, but it is difficult to provide a definite prognosis. Associate Professor Ronald Walls, an immunologist, reported that the condition can be life threatening, adding in his report:
"Monitoring of her condition is required by a specialist, and while her condition is stable she should be seen on a three monthly basis.
Her life expectancy will depend upon future disease activity and it is governed by the underlying condition as well as the therapy that may be required. If she runs a course which is characterised by quiescence of the disease process the life expectancy is not materially altered. If however, she has an episode of disease activity requiring the use of potent immunosuppressive drugs then life expectancy can be reduced both on the basis of drug side effects but also the disease itself."
Dr Ken Micklethwaite, a haematologist, reported that he agreed with Professor Walls' comments about the prognosis and the effect on the offender's life expectancy, adding that "the prognosis will only become clear as Kaycee is reviewed over time."
I also received in evidence two letters from Ms Margaret Wiseman, a chaplain at the correctional centre where the offender has been held. Ms Wiseman describes her as a very caring person, who helps other inmates. She is trustworthy in a responsible job which she holds in the prison, and staff find her to be polite and respectful. She attends chapel regularly and, apparently, has had the benefit of spiritual counselling by Ms Wiseman. She has been visited by her mother every weekend.
Victim impact statement
I received a victim impact statement from Ms Brayshaw's niece, Ms Katrina Leech. It was a moving expression of her love of her aunt, and the grief and loss which this tragedy has caused to her, to her siblings and to members of her extended family, as well as to a young man whom Ms Brayshaw had supported and whom she treated as a son. No doubt, the effects of this crime upon the lives of all of them will be enduring. At the time the statement was read I expressed by deepest sympathy to the family and to all those affected by the death of Ms Brayshaw, and I do so again now.
Sentencing
As is recorded in the statement of facts, the offender pleaded guilty to murder and to the two counts of fraud in the Local Court in March 2011. Her case attracted the provisions of the Criminal Case Conferencing Act 2008 (since repealed). By virtue of s 17 of that Act, she became entitled to a 25% reduction of sentence because of those pleas.
I have commented upon the paucity of material in this case, both objective and subjective. This is in no sense a criticism of the efforts of counsel on both sides and those who instructed them. They all did the best they could with the limited material they had, and I have had the benefit of a competent and responsible presentation of the case by the Crown and on behalf of the offender.
While the objective gravity of the murder is difficult to assess, it is a serious offence of its kind. It has its background in the offender's fraudulent conduct, and the authorities recognise that reckless indifference to human life is not necessarily less serious than other bases of murder. On the other hand, it is significant in this case that the killing was spontaneous and was not accompanied by an intention to kill or, indeed, to inflict serious injury.
The offender also stands for sentence for the two counts of obtaining money by deception, an offence under s 178BA (since repealed) of the Crimes Act 1900, carrying a maximum sentence of imprisonment for 5 years. These were the offences committed against Ms Brayshaw. They are both serious fraudulent exercises, aided by the offender's status as a bank employee, for which no explanation is forthcoming. In addition, two similar offences involving the Kosmas must be taken into account when I pass sentence for the murder.
In her favour, the offender is entitled to rely upon her clear criminal record. There is no evidence of remorse on her part apart from the fact of her pleas of guilty, but the facts disclose that those pleas were entered in the face of a strong Crown case. In the absence of evidence about the circumstances of the offences and her background and community ties, it is difficult to assess her prospects of rehabilitation. However, I would assess her as having reasonable prospects, given that she has no criminal history, she apparently has the support of her mother, and that Ms Wiseman considered that she appeared to be "looking within herself" and "gaining insights that will help her return to the wider community a better woman."
There is no evidence that the offender's illness has affected her conditions of custody. No doubt, it would be more easily treated and monitored in the community, but it seems that it is being adequately managed by Justice Health. Nevertheless, she suffers from a serious condition which could be life threatening and the prognosis of which is uncertain. That is a matter properly to be taken into account.
The offence of murder, of course, carries a standard non-parole period of 20 years. It is apparent from my assessment of the objective gravity of the offence and the subjective matters favourable to the offender that there are ample reasons to depart from it.
I shall pass concurrent fixed terms of imprisonment for the offences the subject of the second and third counts. The sentence for the murder, taking into account the offences on the Form 1, will be cumulative upon those fixed terms. For that reason, and because of the offender's illness, I find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period. That said, the relationship of the effective non-parole period to the aggregate sentence will be close to the statutory proportion. In my view, a lesser non-parole period than that which I propose would be inadequate to reflect the offender's criminality, giving due weight to considerations of retribution and deterrence.
For each of the offences of obtaining money by deception my starting point for sentence would be imprisonment for 2 years. That must be reduced to 18 months to reflect her plea of guilty. For the murder my starting point would be imprisonment for 24 years, which must be reduced to 18 years for her plea of guilty. I shall set a non-parole period of 13 years, which is itself only a modest departure from the statutory proportion. The aggregate sentence, then, will be imprisonment for 19 ½ years with an effective non-parole period of 14 ½ years. It will date from the day of her arrest, 10 December 2009, as she has remained in custody since that time.
Kaycee Henzon, for each of the offences in the indictment of obtaining money by deception you are sentenced to a fixed term of imprisonment for 18 months, commencing on 10 December 2009 and expiring on 9 June 2011. For the murder of Nancy Brayshaw, taking into account the offences on the Form 1, you are sentenced to imprisonment for 18 years, comprising a non-parole period of 13 years commencing on 10 June 2011 and expiring on 9 June 2024, and a balance of term of 5 years, commencing on 10 June 2024 and expiring on 9 June 2029. You will be eligible for release on parole on 9 June 2024.
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Decision last updated: 29 June 2012
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