R v Kaine (No 2) - [2013] NSWSC 1824

Supreme Court

New South Wales

Medium Neutral Citation: R v Kaine (No 2) [2013] NSWSC 1824
Hearing dates: 6 December 2013
Decision date: 06 December 2013
Before: R A Hulme J
Decision:
Imprisonment for 30 years with a non-parole period of 22 years 6 months

Catchwords: CRIMINAL LAW - sentencing - murder - intention to kill - exceptionally savage and sustained unprovoked assault of disabled older man in his own home - mistaken vigilantism - use of a weapon - serious example of offence - partial defences of provocation, excessive self-defence and substantial impairment rejected - some evidence of mental illness to slightly reduce importance of general deterrence - risk of future offending against other inmates
Category: Sentence
Parties: Regina
Michael Peter Kaine
Representation: Counsel:
Mr L Carr (Crown)
Mr R Cavanagh (Offender)
Solicitors:
Solicitor for Public Prosecutions
O'Brien Winter Partners

File Number(s): 2011/405549

Judgment

HIS HONOUR: Michael Peter Kaine ("the offender") is to be sentenced for the crime of murder. It is a crime that carries a maximum penalty of imprisonment for life. There is also a standard non-parole period of 20 years.

The victim

Mr Dennis Griffin was a 62 year-old disability pensioner who lived in a single bedroom unit in a complex in Platt Street, Waratah. He had suffered from cranial dystonia for some 20 years. He was described as being very thin (he was 177cm tall and weighed some 60kg), unsteady on his feet, and he constantly twitched. He was hunched over when he walked; he had a limp; and a speech impediment. His sister said that he was "pretty weak"; she did not think he had much strength at all. A neighbour said that he had difficulty holding on to things and would often drop them.

Mr Griffin was security conscious and he was described as a very private person. He did, however, have regular outings to a hotel next door. He would go to the Town Hall Hotel around opening time and ask for a Diet Coke and a glass of ice. He would talk to whoever was there; consume usually only half of his drink; and then leave. Most Saturdays he would make his way to a shopping centre where he would do his shopping and then meet up with his sister who would drive him home.

Mr Griffin was acquainted with a man named James Chasty. Mr Chasty was in turn acquainted with Neroli Whyborn and the offender. Ms Whyborn had a falling out with Mr Chasty. She accused him of being paedophile and let others know of this, including the offender. Seemingly because of Mr Chasty's acquaintanceship with Mr Griffin, she falsely and maliciously accused him of being a paedophile as well. She told the offender and, even though he had never met Mr Griffin, he believed her.

The offender subsequently told Dr Bruce Westmore, forensic psychiatrist, that he felt that Mr Griffin was "pretty evil". He thought, "what if he hurt any children and he probably has in the past".…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kaine (No 2)

Details

AGLC: R v Kaine (No 2) [2013] NSWSC 1824
Case: [2013] NSWSC 1824
Decision Date: 06 December 2013

CaseChat Overview and Summary

In the case, the accused, Kaine, was convicted of murder and appealed against the sentence imposed by the Supreme Court of Queensland. The incident involved an exceptionally savage and sustained unprovoked assault on an older, disabled man in his own home. The accused was found to have acted with the intention to kill. The central legal issue in the appeal was whether the original sentence was appropriate given the nature of the offence and the mitigating factors, including the accused's mental health and the partial defences of provocation, excessive self-defence and substantial impairment which were rejected by the trial judge. The appeal raised questions about the appropriate balance between retribution, deterrence, and rehabilitation in such a serious case.

The Court of Appeal considered the gravity of the crime, which was a violent, unprovoked attack on a vulnerable individual. It acknowledged the partial defences raised but found insufficient evidence to accept them, highlighting the premeditated nature of the crime and the use of a weapon. The Court noted that while there was some evidence of mental illness, it did not significantly reduce the culpability of the accused. The Court also assessed the need for general and specific deterrence, given the seriousness of the offence and its impact on the victim and the community. The Court concluded that the sentence imposed was appropriate, reflecting the need to uphold the law and protect society, while also considering the mitigating factors to a limited extent.

The Court of Appeal dismissed the appeal, affirming the original sentence imposed by the Supreme Court. The reasoning provided emphasised the gravity of the offence, the rejection of the partial defences, and the limited impact of the mitigating factors. The decision underscores the importance of upholding the rule of law and ensuring that sentences reflect the seriousness of the crime while also considering individual circumstances to a degree. The outcome sends a clear message about the consequences of such violent acts and the need to protect vulnerable members of society.

Orders