R v Kulla Kulla
[2010] VSC 60
•9 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1452 of 2009
| THE QUEEN |
| v |
| MELISSA ANNE KULLA KULLA |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 29 January 2010 | |
DATE OF SENTENCE: | 9 April 2010 | |
CASE MAY BE CITED AS: | R v Kulla Kulla | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 60 | |
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Manslaughter - Youthful Aboriginal offender - Verdins - Sentence 6 years minimum 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC. Ms Anne Hassan | Director of Public Prosecutions. |
| For the Accused | Ms Jane Dixon SC. Ms E James | Victorian Aboriginal Legal Aid |
HER HONOUR:
Melissa Anne Kulla Kulla on 18 January 2010 you were arraigned and pleaded guilty to one count of manslaughter of Hussein Mumin who died on 10 September 2008 at Reservoir. A plea was heard on 29 January 2010. You were originally charged with the murder of Mr Mumin and have been on remand since that time.
You have a number of prior convictions and prior appearances in the courts in Queensland, from where you originally came. You were born on 28 October 1984 and you are currently aged 25. You were aged 23 at the time of the offending, and can be classified as a young offender. Your prior criminal history commences in January of 2000 and continues through to November of 2007. Initially you were aged 14 and in 2007 you would have been aged, approximately, 22.
A number of the offences in your prior history are, what would be called, trivial street offences. But they have a relevance to your own personal history and, accordingly, I do intend to list them. These offences all occurred in Cairns:
· Magistrates’ Court January 2000 – breached bail undertaking, convicted and discharged
·Children’s Court October 2000 – breached bail undertaking, drunk in a public place, sentenced to be reprimanded
·Children’s Court 12 February 2001 – consuming liquor on a road, failing to appear on your undertaking (2 counts), common assault, disorderly manner (2 counts), behaving in a violent manner (1 count). Convicted and discharged in respect of charges 1 and 2, placed on a community based order with a condition to perform 80 hours of unpaid work on charges 3 to 7
·Magistrates’ Court February 2001 – breached bail undertaking, without conviction, reprimanded
·Children’s Court May 2001 – two charges of behaving in a disorderly manner and sentenced to a period of seven days detention, to be served by way of an immediate release order
·Magistrates’ Court, June 2001 – behaving in a violent manner, using obscene language in a public place, fined $180, in default to be imprisoned for four days
·Magistrates’ Court, August 2001 – behaving in a violent manner, two charges, community based order, 20 hours unpaid work
·Magistrates’ Court, January 2001 – two charges of behaving in a violent manner and one of breaching a bail undertaking, fined $90 on the first two charges and $150 on the second charge. In default of payment, a total of five days imprisonment, with a fine option, order to perform 10 hours of community service on charge 3. You were breached. The breach was proven and the orders were revoked
·December 2001 – behaving in a violent manner, sentenced to pay a fine of $90. In default, two days imprisonment
·Magistrates’ Court 23 January 2002 – unlawful use of a motor vehicle, two charges of breaching bail undertaking, one of behaving in a disorderly manner and two of contravening direction requirement. You were sentenced to probation for 12 months on charges 1 to 4 and discharged from charges 5 to 6. You were brought up on a breach of probation order in May of 2002, the breach was found proven and you were given a term of imprisonment for a period of one month with such sentence being wholly suspended for six months. You were breached further in respect of that in October 2002, the breach was found proven and the suspended term was further extended by six months.
·Magistrates’ Court, March 2002 – breached a probation order, behaving in a disorderly manner, fined $75, default two days imprisonment, fined $90, in default two days imprisonment on Count 2
·Magistrates’ Court – behaving in a violent manner, breaching bail undertaking, fined $100, in default one day imprisonment on Count 1 and $200 and in default three days imprisonment on charge 2
·Magistrates’ Court, October 2002 – wilfully trespassing on a railway and behaving in a violent manner, fined $100 in default, two days imprisonment on each charge
·Magistrates’ Court, January 2003 – contravening directional requirement, fined $120, in default two days imprisonment
·February 2003 – behaving in a disorderly manner, fined $100, in default imprisonment for one day
·June 2003 – behaving in a disorderly manner, fined $100, in default imprisonment for two days
·August 2003 – behaving in a disorderly manner, fined $100, in default two days imprisonment
·February 2004 – behaving in a violent manner, fined $100, in default two days imprisonment
·Magistrates’ Court, April 2004 – possession of property suspected of being stolen or unlawfully obtained, fined $50, in default to be imprisoned for two days
·Magistrates’ Court, September 2004 – common assault, sentenced to a term of imprisonment for a month, such sentence being wholly suspended for 12 months. You were breached in the Magistrates’ Court at Coen in Queensland on 14 December 2004. The breach was proven and the suspended term was wholly restored and you were sentenced to be imprisoned for a period of one month such sentence to be served concurrently with the other sentences imposed that day
·Magistrates’ Court, September 2004 – breach of bail undertaking, fined $150, in default three days imprisonment.
·Magistrates’ Court at Coen in Queensland, December 2004 – obstructing police in the execution of their duty, breach of order and committing a public nuisance, sentenced to pay a fine of $300, in default six days imprisonment on each of charges one and three and a fine of $500, in default 10 days imprisonment on charge 2
·Magistrates’ Court – breaching a domestic violence order two charges, sentenced to be imprisoned for a period of two months, such sentence being wholly suspended upon being released on probation, for a period of nine months. Breached on the 16th September 2005, the breach was found proven and you were sentenced to a period of two months imprisonment, such sentence being wholly suspended, for a period of six months on each charge
·Magistrates’ Court, September 2005 – breached a bail undertaking, entering a dwelling with intent to break at night, unlawfully using a motor vehicle, unlawful entry of motor vehicle for purpose of committing an indictable offence and stealing – you were sentenced to a term of imprisonment of 14 days on charge 1, two months on charge 2, three months on charge 3, six months on charge 4 and a period of one month on charge 5
·Magistrates’ Court, 14 November 2007 – at the Neighbourhood Justice Centre, Victoria, breaching the terms and conditions of an intervention order and failing to answer bail, without conviction the proceedings were adjourned to 15 May 2008 on entering into an undertaking to be of good behaviour in the meantime.
The circumstances in relation to this offending are that you were in a relationship with the deceased man which commenced around June of 2008. To be able to understand the circumstances surrounding this offending, one also needs to understand the life the deceased man had led. He was 28 at the time of his death, having been born in Somalia, in Africa in October of 1980. His mother had died when he was a small child and his father and one of his brothers had died, in around 1994, in the Somalian Civil War.
A distant cousin by the name of Ms Aysha Serar stepped in to assist in the deceased’s upbringing and that of his younger brother, Ali. And in 1995 they all migrated to Australia, sponsored by Ms Serar’s brother Ahmed Ali Serar, he having been resident in Australia since 1986. The deceased was, accordingly, approximately 15 when he arrived in Australia. He apparently had great difficulty in mastering English, found it difficult to get employment and was quite traumatised by his experience in Somalia. He began to be in trouble with the police, while still young, as a result of the consumption of alcohol.
He was dealt with first by the Children’s Court and ultimately the adults courts. He had convictions relating to offences of violence, as well as armed robbery and he had spent periods of time in jail. At the time of his death, the deceased was under a court ordered justice plan and was being supervised by the Department of Human Services and ARBIAS, which is the Alcohol Related Brain Injury Australia Services organisation. He suffered a mild intellectual disability, as well as the alcohol related brain injury. He had been further assisted by the Victorian Foundation for Survivors of Trauma and in early 2008 the Department of Human Services organised accommodation for Mr Mumin at Darebin Lodge, in Tyler Street Preston; a service that specialises in dealing with men with an acquired brain injury.
In July 2008 he moved to a unit in Marshall Street, Ivanhoe. This is a property organised by ARBIAS, the DHS having referred the deceased man to ARBIAS in July of 2008. He remained under the care of ARBIAS and the DHS until the date of his death. The support provided by ARBIAS to people such as the deceased is to try to assist them to live independently in the community, by way of funding accommodation, individual case management and helping them deal with day-to-day issues. In August of 2008, he was evicted from Marshall Street in Ivanhoe, for numerous breaches of his tenancy. ARBIAS found another form of accommodation, being a self-contained unit in Tyler Street, Preston in August 2008, which was near his previous place of residence, Darebin Lodge. There were continued complaints by neighbours about noise, fighting and arguments, during the time of his tenancy. Mr Mumin was certainly a person with complex needs, as indicated in the opening and I quote:
Due to the nature of his disabilities and substance abuse, he had difficulties with things such as keeping appointments, managing his money and was under a guardianship order. Neuropsychological reports collated by ARBIAS suggested he would forget 70% of what he was told. Case workers found it difficult to engage with him and care for him as he would often deny them access to his home.
Mr Mumin had also been involved in two fights in the weeks prior to his death and he was injured in both of those. He had a puncture wound to his left cheek and, on another occasion, a penetrating injury to his thigh, from an incident in West Heidelberg. That injury kept being reinfected and was unable to heal.
Concerns in relation to Mr Mumin increased substantially between July and the time of his death, with reports from welfare officers and on-call monitoring agencies noting continual erratic behaviour. It was determined, by the accommodation manager at ARBIAS, that he needed 24 hour care. Carers were organised, through an agency, on a shift basis. Their role was to provide support for Mr Mumin in an effort to protect him, as well as to reduce the number of disruptions to neighbours. He was in the process of being organised for detention under the Mental Health Act for involuntary detention at Thomas Embling.
It is with this background that you, Melissa Kulla Kulla, became involved with the deceased. You were with him on and off from the period of June/July 2008 until the time of his death.
You are an Aboriginal and Torres Strait Islander woman from Far North Queensland, who had come to Melbourne to join one of your cousin’s/aunties living here. You met the deceased man, you initially lived with him at Darebin Lodge. You moved with him when he moved to Marshall Street.
What is to be noted in the opening by the Crown is that, although this was a single person occupancy unit, your cohabitation was not in any way discouraged by ARBIAS staff as it was determined and believed that you were, in fact, a stabilising influence on Mr Mumin and you helped care for him, in terms of cleaning, cooking and caring.
He remained at home far more whilst in your company than when he was single. There is also no doubt that, at times, you and he argued loudly, usually as a result of the consumption of alcohol by both of you.
When Mr Mumin was evicted in August of 2008, you continued living with him when he went to Tyler Street in Preston.
You, like Mr Mumin, have what could be described as a significant alcohol problem. Both of you consumed vast quantities of alcohol together and violent fights would occur between you both when you were affected by alcohol. In the days leading up to the death of Mr Mumin, a 24 hour care regime had been put in place for Mr Mumin, by those at ARBIAS.
Between the period of 3 to 9 September, different carers and support personnel for Mr Mumin noted that at times he exhibited signs of paranoia, in relation to your presence, that his behaviour was erratic, threatening and intimidatory towards the carers. You were observed to occasionally be happy and content together and then things would change. With Mr Mumin on one occasion, in the presence of Ms Moore, chasing you in a very threatening manner, whereupon he grabbed you and pulled off all your clothes. Police were ultimately called, despite the carers being there. Mr Mumin initially told Ms Moore that he wanted you out of his house, but then he changed his mind. You equally packed your bags to leave when the police arrived, but then you changed your mind also and stayed. It was clearly a highly dysfunctional, threatening and damaging relationship to both you and Mr Mumin. Equally, it appears from my observations of what was occurring, Mr Mumin had the support of DHS, ARBIAS, and the Victorian Foundation for Survivors of Trauma under a justice plan, and you had no such support from anyone – a matter which is really quite significant and of some concern.
On the day before his death, 9 September 2008, you and Mr Mumin spent the day with Ms Barbara Chapman, who was a friend and an advocate of Mr Mumin, who had an interest and a concern in the plight of African refugees. She has known and been involved with Mr Mumin since approximately 2005 and, indeed, put before the court a victim impact statement. She was aware of your relationship, but she was concerned, equally, about the fact that you were both using alcohol and drugs on a consistent basis, and that you became quite offensive to each other when affected in that way.
On this day, Ms Chapman took you and Mr Mumin to the Northland Shopping Centre to obtain a mobile phone for Mr Mumin, she noticed that you had been drinking when she met you at approximately 3.30, and said she was unable to tell if Mr Mumin had been. She brought you some food and then you and Mr Mumin went to the movies. Ms Chapman met up with you again after the movies, but in a quiet moment, when you were not present, Mr Mumin said to Ms Chapman that you were jealous of everyone in his life, including her, and that he wanted you to go. He told Ms Chapman about episodes of violence between you and he was concerned that he may be evicted again.
He returned to the unit at around 10.30pm, having been dropped there by Ms Chapman. A care worker, one of those who was there 24 hours a day to care for Mr Mumin, was present. Ms Chapman wanted to speak to Mr Mumin privately, but did not manage to do so. She tried to encourage you to return to your aunt’s home in North Melbourne that night – and that did not occur.
You and Mr Mumin started to argue shortly after the departure of Ms Chapman, and that was due to the fact that you would not agree to accompany Mr Mumin to the shops, to buy alcohol. Ultimately, you both left together walking. You and Mr Mumin caught a train to Clifton Hill Railway Station and then a taxi to the city. You purchased a 4 litre cask of white wine and two cans of Jim Beam and Cola at a 24 hour hotel. This occurred at around 12.27am, as indicated by the security footage and bank records. You then went to Carlton and withdrew some $20 at 12.38am. You then travelled by taxi to a convenience store in Preston and purchased soft drink, this was at 12.52am.
After that, you returned to Mr Mumin’s unit. The carer, Mr Te Paki, was still present at the unit, although you two had originally left. You and Mr Mumin went into the bedroom and drank the cask wine and Solo. You had each already consumed a can of Jim Beam before arriving there.
Mr Te Paki was supposed to conclude his shift at 8am but, at 6am, Mr Mumin asked him to leave and he did so. Although Mr Te Paki did not report any disturbance, a neighbour heard you and Mr Mumin yelling at each other at approximately 3.30am in the morning. He also heard a further argument at about 8.30 in the morning and called the police. At around 9.15am, you and Mr Mumin were seen near the intersection of Albert and Tyler Streets in Reservoir, this is about three doors down from Mr Mumin’s unit. You were barefoot, swearing and shouting loudly. Mr Mumin was following you up and down the street, appearing to try to placate you and get you back into the unit.
Shortly after this, you both went back into the unit. A very short time later you were outside the unit flagging down assistance. A taxi driver stopped, followed you into the unit, where he found Mr Mumin lying in a pool of blood, on the front path. You were hysterical and trying to tip water into Mr Mumin’s mouth and sponge his face. You had already run into a neighbour’s unit. You were extremely distressed and hysterical. Assistance was called and a doctor from the nearby surgery came and checked the deceased and found him to be dead. The cause of death was a single stab wound to the chest, which resulted in extensive internal bleeding as it had penetrated the pulmonary artery where it exits the heart. The wound was 16cm deep and there were no defensive injuries on Mr Mumin. His blood alcohol level was .28.
I am unaware of your blood alcohol content, as no one thought to take it, but I presume that you would have had a similar level to that of Mr Mumin.
When interviewed by the police at Preston Police Station, you gave a false version of what had occurred, basically indicating that Mr Mumin had committed suicide. During the suspension of the formal interview, you told one of the police officers that the knife that had killed Mr Mumin was behind the washing machine and the police, in fact, located it there. In the continuation of the formal interview, you gave a version, which, in part, appeared to be accurate and in part not. You stated that after the care worker, Mr Te Paki, had left, you started cooking a meal for yourself and Mr Mumin, but whilst you were cooking in the kitchen Mr Mumin had started to argue with you. You had got something out of the oven and he had thrown the oven tray at you, and threatened to kill you. You said that he was pushing you around and grabbing at your clothes. You then stated that he had picked up the knife and said he would kill you. You attempted to disarm him and, that during this grapple over the knife, it plunged into his chest, whilst it was under his control. You said, that he collapsed as he walked outside and, in a panic, you hid the knife in a shirt behind the washing machine. You further stated that you had attempted to help him by wiping up blood from him, the floor, sponging him, flagging down the taxi driver and trying to call Ms Chapman.
When the police examined the crime scene, they found there was evidence of recently cooked food in the oven in the kitchen, meat in the kitchen sink and some mess on the floor of the kitchen, which was food mess. There was evidence of a dent in the wall of the unit, matching the edge of a baking tray, so it would appear there are some issues in which you have told the truth, including the fact that you had been using the knife, to cut up the food, prior to this and it had been in the sink. There is nothing to indicate that that is anything other than the truth. The physical evidence found by the police is also supportive of the fact that Mr Mumin had thrown the oven tray at you. It is equally clear, that you tried to clean up. In the laundry there was a mop and bucket filled with soapy water, there was red coloured stains on the strands of the mop and they were obviously blood stains. The police found large areas of blood staining, which appeared to have been wiped, on the kitchen floor. Mr Mumin’s mobile phone was located near his body and the contact number for Barbara Chapman was displayed on the screen, which is consistent with what you said to the police, about attempting to call her for help. Finally the Crown said in the last paragraph of its opening:
It is the Crown case that Ms Kulla Kulla stabbed Mr Mumin in the chest and this led to his death. Whilst there is evidence to suggest that a fight did occur between the couple which may have involved the throwing of food and wielding of a baking tray, the Crown is unable to say precisely what happened between them in the lead up to the stabbing.
In this matter I have received four victim impact statements – three of whom are from family members and one from Ms Barbara Chapman. The first family member is Fartun Mumin who was the daughter of the person referred to as his distant cousin Aysha Serar, the next is from his distant cousin who looked after him initially in Somalia, Aysha Isse Serar, and Ms Serar’s brother, who sponsored them to Australia, Ahmed Ali Serar. They all talk about the loss and trauma that they feel as a result of the death of their brother, stepson and relative. With his uncle, Ahmed Serar, claiming to suffer from post traumatic stress disorder, as he was very close to his nephew and provided him with a lot of guidance and support. He says, in his victim impact statement, that the post traumatic stress disorder is directly related to the killing.
Further, in the papers, he indicates that as a result of being the most senior member of the family in Australia, he and his wife need to be funded to travel to see brothers, sisters and sisters-in-law of the deceased man, to provide emotional support and closure to the family overseas, which he said, was very important for his and Hussein’s Islamic religion. The deceased’s brother lives in the United Kingdom, another two sisters and a brother live in the United States of America and Ahmed Serar’s sister-in-law, lives in Canada and he stated, that she was close to Hussein and a member of the family whom he must visit.
The victim impact statement provided by Barbara May Chapman was lengthy. I must say in relation to the picture painted by Ms Chapman of the deceased man, it is a very distinctly different picture to what the evidence discloses. Ms Chapman in her victim impact statement says that this killing has destroyed her life. That Hussein was the child she never had, that she had done many things for him over the years that she had known him, that he was in the process of blooming and becoming recovered from the traumatic life that he had had. She states in page 8 of her victim impact statement, and I quote:
I will go to my own grave knowing that Hussein should never have suffered as he did in life. That I saw the worst side of human nature in things that happened to him. That his murder, the greatest crime against a vulnerable person, in his own home. Hussein’s murder has changed me as a person as I don’t want to speak to people and I feel traumatised, distressed and depressed by the loss more than words can say. I have lost my residual optimism and sense of trust in life. Hussein was like a brother or a son to me with the added factor of being dependent for assistance like a child, as I have already mentioned, it is a tremendous loss and the brutal circumstances compound that greatly.
I do want to note something else that Ms Chapman says, that to a degree mitigates against her having, in my view, any real understanding or compassion, in respect of the circumstances of this killing. It is contained on page 8 and 9 of her victim impact statement and it states:
Melissa was providing family-like support by cooking for Hussein as I understand it. I understand she told him she was homeless and as he always tried to help people in situations he’d known the hardship of himself he’d given her shelter and also gave her food as she had no income at all during that time. Melissa ate from the food I bought for Hussein, trolleys full across the months concerned. She had choices - he did not have – she could go and stay with her family in Melbourne and elsewhere in Australia and she was literate. Neither applied to Hussein who was much more disadvantaged as I told Melissa when she would ring me and I said again the day before the murder at Northland I was very willing to help in any way I could and I was particularly concerned that good health be a top priority. Hussein was nodding as I said this indicating that he wanted to get back on track with sports and health. To the very end Hussein was seeking to get his life as good and healthy as it could be. I am just so sorry that this will never occur… In all, this murder has taken a very great toll, little of which can ever been repaired. The best that can be hoped for is for time to dim the memories that have stayed so resolutely searing. The only real relief to my pain would be to see Hussein walk in the door. The tragic impossibility of that means that I will suffer the consequences of his murder for the rest of my life.
Ms Chapman was in court and would have heard the circumstances of your life and your history and she may now understand, perhaps, a little more of your situation. That I will not know, as this victim impact statement was presented prior to the plea on your behalf.
I will take into account the contents of the victim impact statements, to the extent that they are relevant and admissible.
The Crown conceded, at the end of the Crown opening and before the plea started, that this was a problematic situation. Mr Rose said at page 22 of the transcript:
The only other thing I want to say on behalf of the Crown is we accept in relation to this that these were two very troubled people both with disabilities, both with difficulties
I can only agree with the situation as expressed by the Crown, both you and Mr Mumin have had exceedingly troubled lives and it is unfortunate that you two troubled souls ever became involved with each other. The death of Mr Mumin is a tragedy for all of those who knew and cared about him.
I also have to take into account your personal circumstances. You are 25 years of age, you are a child of an Aboriginal mother and a Torres Strait Islander father, your native lands are Lama Lama, an area that covers part of Cape York, Hopevale, Weipa, Mora, Mosman – very remote territory. Your family lived at Coen up past Port Douglas.
Your mother, who you believe to be approximately 40, is confined to a wheelchair as a result of a serious assault some 14 years ago, which left her comatose for two months and she now lives in a nursing home, and has the appearance of a serious stroke victim. Your father left the home when you were an infant and, ultimately, your care was provided predominantly by your maternal grandmother, who also raised your two sisters. Whilst you were living with your grandmother, she was also raising some five or six of your mother’s sisters. You are not literate in either written or oral English. You attended school, but, it would appear to a limited extent and, at approximately the age of 13, you left your grandmother and lived at Bamaga, on the Torres Strait, with a maternal aunt and her family.
You returned to Cairns at approximately 16. At 18, you returned to Coen and you were briefly involved on the CDP Scheme, until you visited a cousin at Cook Town. It was whilst you were there that you were abducted and kidnapped by an Aboriginal man, who subjected you to a serious range of abuse. That very brief summary does not in any way deal with the abuse that you have suffered, virtually from the time you were born.
Your counsel have prepared exceedingly extensive material to assist me in this determination of the appropriate sentence. One of those documents is a summary of the Queensland Child Safety Service file, another is a summary of the Cape York District Queensland Health notes, another is the summary from the Cairns Base Hospital file, yet another, is the Victim of Crimes summary, extracted from the Victoria and Queensland police subpoenaed documents – they tell of a litany of abuse that you have suffered, from the time you were old enough to remember and before.
Just dealing first with some of the matters contained in the Child Safety Service Queensland file, it indicates that on 25 July 1986 you were the subject of a notification which was,
assistance of police required to remove child from what is referred to as the Lyons Street dump camp in Cairns on the basis that it was an overcrowded unhealthy environment, inadequate living conditions. Alternative accommodation was sought for the child, mother refused to leave, she remained at the camp, adults were drinking, mother and grandmother persistently refused to remove child from the unhealthy condition of the camp.
You were 18 months old.
31 November 1989, when you were five years old and your sister Marcia was nine. Mother was drunk, alcoholic, there was no food, you slept at various different addresses. This continued on during the period 1989 to 1990, when you were still aged five and your sister Marcia aged nine, Eunice aged six. Mother was an alcoholic with no fixed abode. Inadequate food for the children. The children not attending school. Ultimately, you were placed with your grandmother Winnie Kulla Kulla, but remaining in the custody of the Director, on the basis of severe neglect. The file was transferred to the Atherton office. This continued with notifications and, ultimately, your grandmother removed you and your siblings to Wujal Wujal. In August 1997, when you were aged 12, there was a notification entry that you were in the care of your grandmother, who had returned to Wujal Wujal without making proper arrangements for the care of you. It was noted that the Notifier needs funds and clothing for the child. The child is under a protective order until she is 18 years old. The child could be considered for an independent living allowance and support, to assist her movement out of care.
This entry, to which I have just referred, indicates that the Department wished to liberate you from its care, at the age of 12, when you had no means of support, no assistance, no care givers. There were notes relating to sexual assaults which occurred, upon you, at this time. It was noted that no active work had been done in respect of caring for you since 1994 – this was noted in 1997. In 1999, again, a case note to the effect that, the Atherton office received a fax form crisis care: child under care and protection order with very little contact with this Department. Consider releasing from care and protection, as the Department is not offering any assistance to the child.
In January 2000, when you were aged 15 and under the care and protection of Queensland Child Safety Service. This is the file note:
Melissa and Eunice living in park. Melissa’s partner approximately 40 years old. Melissa had infected cut to head, drinking metho. Says she received cut from “my man”. Mother has frontal brain injury from domestic violence. Living at Bethlehem Home. Physical, emotional, sexual harm and neglect identified.
Both you and your sister were subject to protection orders. This file was unallocated. It was transferred to Cairns. Was requested to be allocated in June of 2000 and ultimately it was determined, because of the delay since notification, not to proceed any further.
On 31 January 2000, when you are still aged 15, an update was requested. No information had been received or obtained to date and I quote:
If we could get some contact with this family then we could look at closing it.
Referring to the file.
It was noted in February of 2000, that you and Eunice were both neglected, both involved in relationships with men, relating to domestic violence. Concerns, alleged significant harm.
At the age of 15, in May 2000, suicide risk for Melissa. Address at which you were residing at that time – Parramatta Park. You appeared in court in Cairns in May of 2000. You tried to suicide, by hanging yourself, on 16 May.
By June of 2000, it was noted in the file, that, during the researching of the outcome of this initial assessment, the project officer confirmed that both you and your sister Eunice have remained unallocated and without any FSO input, in relation to child protection, from the time of first notification.
It appears that, during the time that you were under care and protection orders with the Department, you were receiving nothing in the way of actual care or protection, and your cases just remained unallocated to any officer within the Department.
In relation to the matters noted in the Cairns Base Hospital file, from when you were an infant through to your teenage years and beyond, I will refer to just some of the matters:
·January 1986, you were admitted for vomiting and diarrhoea when you were 15 months. You had bacterial infections, giardia cysts and rotavirus. Your mother had been asked to bring you to the hospital previously but she refused. Noted: “it seems that the child’s mother has absolutely no concern or care for the child.”
·July 1986, admitted with anaemia. Also noted: admission after you had been found living in a local dump – perforated ear drum, mild scabies. You were 21 months old. Your mother did not return to collect you from hospital. You were placed in the same cot as Eunice as you were fretful without her. Had been living in Lockhart River area. You mother indicated that she wished to take you elsewhere and ultimately you were discharged with your mother to Roses farm, escorted there by someone from the hospital.
·The next note is about you being taken into care at age five. You had been admitted to the paediatric ward, after being found in a local park with your younger sister without any adult accompanying you. You had not eaten all day and had no idea where your parents were. You were kept in the ward until placement was organised with your grandmother in Coen.
·There were other minor points in relation to presentations for abdominal pain etc as you grew older.
·In April 1989, 14 years old. Right side umbilical pain – sexually active. No contraception. Lives at night shelter.
·As a 15 year old, you returned positive test results for Chlamydia, Gonorrhoea, syphilis and trichomonas. You were living at the night shelter still. This was in March 2000. You had genital lesions. Worsening pain. You refused treatment and absconded. You had numerous weeping external vulval, peri anal and anal lesions.
It then continues on with many references to your attempts to hang yourself, as a 15 and 16 year old. By the age of 16, you were classically alcoholic and a poly-substance abuser. You were hit by a car at 18. At 19, you were assaulted – hit to both sides of the head with a frying pan – the result of domestic violence.
In relation to the Cape York District Health notes, there are many references to what had occurred to you during your adolescence and teenage years:
·March 2004, police attended the house to find you with a rope around your neck.
·24 March 2004, as a result of an assault the previous night you had a clinically broken nose, fractured right fourth metacarpal finger.
·27 April, 2004, the police were called to your house and you were found hanging from a fan. You had been in jail and charged the previous week – heavy drinking at the household. They were unable to find a responsible person to send you home with.
·May 2005, attempt to follow up suicide. Attempt noted that you were now in Cook Town.
·July 2005, Coen Clinic, you had a left index finger and a back injury. Note: appears to have been beaten with an object. Also, left side of your face and eyebrow. Same date, Cook Town Hospital notes: accident and emergency, assaulted by a boyfriend, bashed with a whip, smashed finger. Operation on your finger to repair it.
·Some three days later, noted on a home visit. Past history of suicide attempts, physical abuse. She was tearful, not willing to talk. Wounds on back infected. She seemed quite scared of partner, he was very aggressive. Melissa showed us her scars as a result of domestic violence from partner. Wanted her to come to town to town to talk about her concerns.
·15 July, another day, community referral for domestic violence – two entries. Suicide attempts – four entries. She attended on the 16 September at the Cape York District and it was noted that there had been an inability to attend for a change of dressings. She was accompanied by a partner. The dressing on her back had to be soaked off.
This just continues on ad nauseam.
As a country and a society, we should be thoroughly ashamed of ourselves, that you have been neglected and abused in the manner that you have been, it is exceedingly distressing that in this country, where we pride ourselves on quality, tolerance and fairness, you could be so neglected, so abused and yet we, as a society, did nothing to stop it. When you were living with a 40 year old man in a park at the age of 12, we as a society did not stop that, we did not come in and protect you, which clearly we should have done. As a community, we should hang our heads in shame. This is not about your Aboriginality, this is about your childhood, which was taken from you, while we, as a society, did not make any of the difficult decisions that may have prevented this terrible harm, that was done to you.
The deceased man, Hussein Mumin, who came to our country as a refugee, received more care and more assistance than appeared to be provided to you, at any stage of your life.
The constant references in your file to your sisters Eunice and others, as being your sister, are not in fact true. You have all been raised as if sisters, but you only have two sisters, one is Marcia and one is Maria. Maria was younger than you and adopted out. Marcia is four years older and is now living in Coen and doing reasonably well. Eunice has had a very similar life to you, but in the last 18 months has been alcohol free, drug free and appears to have escaped the cycle of violence and alcohol.
I do not intend to go through your life in any further detail. I have read the files. They are, as I have indicated, frightening. Your life has been a tragedy, nothing less than a tragedy. In relation to various men in your life, you seem to have been a consistent victim of domestic abuse. You have been stabbed in the chest. You have been stabbed elsewhere, with a screwdriver. You have been assaulted with a hammer. You have been abducted and beaten with a stock whip, on a very regular basis, by the man who abducted you. You had a star picket crashed into your hand, and every time you escaped from this man, he tracked you down, and took you back. You have scars all over your body from the various injuries inflicted upon you, by men, over these years.
You eventually escaped, with the help of the police. A particular trooper, based in the Cooktown area, helped you and paid your bus fare, to enable you to get back to your family, in Cairns. You were then picked up on an old warrant, and had to serve six months in jail. During that time, your grandmother died, the one to whom you were close.
One person tried to assist you in Cairns. A man by the name of Phillip Dunn. He and his wife, who was a nurse, took an interest in the street children. They tried to help you get Medicare Cards, get onto CentreLink, trying to get a job. You are in contact with him, even whilst you are on remand at Dame Phyllis Frost. He gave evidence before me that he has known you since you were approximately 15 years of age, when you were a street kid. He had not been in contact with you for a long time, but you have now re-established contact and, he indicated, that he will do what he can to assist you, in relation to when you return to the Far North. He said that the experiences that you have had were, unfortunately, not uncommon for Aboriginal women on the streets, in places such as Cairns.
You had a close relationship with a cousin by the name of Jakinta and you, together with Jakinta, used to regularly go to his house, apart from the time when you were away. Jakinta died in 2004, having committed suicide in Stewart Prison. He said you have two cousins, that you regard effectively as your sisters, being Eunice Kulla Kulla and Wilma Kulla Kulla. He knows of your mother and, occasionally, used to take you and Eunice to see her in the nursing home. He is aware of Eunice and her improvements in life. She now has three children and is living in a house in Mosman and is alcohol free. Wilma is also living in Coen, alcohol free and pregnant with her first child. She also is in a stable relationship.
The reason you initially came to Melbourne was that you came with three of your sisters to see Kitty, a woman described by Mr Dunn as being a bad influence upon you, having had substance abuse problems of her own, for many years.
There is a hope, among your family and Mr Dunn, that you may be the subject of a prisoner transfer, that would take you to Queensland. Mr Dunn was of the view that you were still capable of rehabilitation. I agree that you have prospects of rehabilitation, now that the cycle, in which you have been since a very young age, has been interrupted by incarceration.
Eunice Kulla Kulla also gave evidence in front of me. She gave evidence about her ability, and yours, to speak in your traditional languages and in pidgin English. She gave an indication of the lifestyle that you had both led, growing up in Far North Queensland, which merely confirmed all that had been put. She gave evidence that she has been two years alcohol free. She has given up drinking and smoking. She gave evidence to the fact that she has spoken to her own drug and alcohol counsellor to advise the court about the support services that would be available to you, if, and when, you returned to Mosman or Coen.
I also have a report from Mr Bernard Healey, psychologist, which demonstrated that, in relation to intellectual functioning, you were found to have an IQ of 72, which placed you in the third percentile where 97 per cent of people your age would do better: your power for delayed recall was reduced; you were clearly alcoholic; and your personality testing revealed vulnerability to substance abuse, with a mild hypo manic trend.
There was a further report, a neuropsychological assessment report, which was done on 12 January 2010. That was prepared by Dr Lindsay M Vowels, a Member of the College of Clinical Neuropsychologists and Clinical Psychologists. In his summary he states:
It appears that from a fairly comprehensive sampling of cognitive abilities using tests with established sensitivity and reliability to identify neuropsychological abnormalities, albeit modified as far as possible to accommodate her limited use of European English language and her limited education, that Ms Kulla Kulla is currently demonstrating several significant cognitive disabilities.
Within the area of memory and attention, this was seen in some difficulties with the focussing of attention and with standing distraction. A slowed speed of information processing, restricted short term recall for visual and verbal information and reduction in immediate recall. For short term recall it was apparent that her capacity to register, hold and retrieve verbal information was considerably worse that for Visio-spatial information, even allowing for the limitations in her use of the English language. The threshold for overload and confusion was low and her recall of information after delay of time or interference limited. Her reduction in memory was more suggestive of acquired brain damage than any longstanding intellectual limitations. Accumulative trauma to the head and long term excessive alcohol intake would account for at least some of the memory impairment.
There was some real problems noted with executive function of which the most disabling were the reduced new learning and increased perseveration in several executive abilities. She had greater difficulty with selective inhibition and was self-monitoring to recognise errors and inappropriate responses. Her planning and organisation seemed to be more impaired than would be accounted for by her restricted education and training. Her overall abilities of problem solving and decision-making were reduced in a manner suggestive of newer organic brain impairment, but she did demonstrate some reasonable abilities in some areas, such as non-verbal abstract reasoning and capacity to predict the outcomes of actions which would suggest that her longstanding intellectual abilities are not in the range of disabled. As she undertook the testing after almost two years of enforced abstinence from alcohol and cannabis then it was considered that it is unlikely that there will be any further improvement in these executive abilities and the deficits noted are likely to be ongoing. Her insight into these issues seems to be realistic and I do not consider that she was attempting in any way to exaggerate her cognitive disabilities as an excuse for offending behaviour although some of the issues such as the impulsivity and very poor self-monitoring which are unlikely to be considerably worse when further influenced by alcohol and cannabis may have been exacerbating factors in her offending behaviours.
Mood is distressed, depressed and understandably anxious with some somatic aspects of depression and low mood which would be expected from the approaching trial date, however, her underlying self-concept seems to be positive and with a degree of hope and a determination to improve her life and master the important life skills she has missed out on in her youth while not denying the significance of what she has done. Her loneliness and isolation from her family and culture in the two years of incarceration are also likely to have had a significant impact on her mood. I think that no matter what the outcome she will need major support and a very structured rehabilitation program if she is to maintain the abstinence from all substances and achieve her objectives and benefit from the increased maturity and practical skills she has gained at such cost while in custody.
I have been referred to a number of decisions relevant to the issues of pleas of guilty, deprived backgrounds, cognitive impairment, and youthful offenders.[1]
[1]DPP v Moore [2009] VSCA 264, DPP v Lovett [2008] VSCA 264, R v Fuller-Cust [2002] VSCA 168, R v Makike [2003] VSC 340, R v Bristow [2002] VSC 59,
It should be noted that you fall into all of those categories. You were a youthful offender at the time of the commission of the offence, being 23 years of age; you have significant cognitive impairment; you have an exceedingly deprived background; you have a lengthy alcohol and drug abuse history. You have pleaded guilty, I accept you are remorseful and that a Verdins[2] moderation is applicable. I have not mentioned the matter of compassion for your background and deprivation, whilst that is something that I may have considered, if necessary, in light of my findings as to the other issues to which I have referred, it is not necessary to rely upon that aspect of the plea.
[2]R v Verdins (2007) 17 VR 269
The decision in DPP v Lovett,[3] whilst not identical, had many similar features.
[3]Ibid [2008] VSCA 262
· Lovett was aged 26 when the killing occurred, you were aged 23
· Lovett had an IQ of 74 and was described as severely intellectually disadvantaged, your IQ is 72
· The killing was not premeditated, you did not seek to kill the deceased, it was - as was the situation in Lovett - one stab wound
· The knife was available because you had been cutting up food to prepare for a meal, and was sitting in the sink, similar to the situation in Lovett, in that neither of you had specifically sought out a weapon
· Plea of guilty at first opportunity on offer of manslaughter
There are other factors that strongly mitigate the penalty to be imposed, including your prospects for rehabilitation, which have been increased significantly by the time you have spent in custody, allowing you to be without alcohol or drugs for possibly the longest time in your life, since you were a teenager. Your attempts to learn some basic literacy skills, including both oral and written English skills. You have been involved in art classes and have achieved good results, in a relatively short time.
I find that Verdins has application in a number of ways – first, that your moral culpability is reduced, due to certain of the factors that have been determined by Dr Vowels, the neuropsychologist, including your overall ability of problem solving and decision-making which have been reduced in a manner suggestive of organic brain impairment, and the greater difficulty that you had and have with selective inhibition and recognising errors and inappropriate responses. All of those factors, clearly, must have had an impact, in terms of your inability to respond appropriately to the situation, and would have prevented you from making calm and rational choices, or thinking clearly. That can be seen when your response to the killing is examined.
Further, you will be serving your sentence of imprisonment in Melbourne, unless there is a prisoner transfer arranged, which I have to assume will not be the situation. Your family reside in Far North Queensland, and you are a long way from your family and your cultural home. You have no one with whom you can converse in your native language, and that must make prison more onerous for you.
I have to balance all of those matters to which I have referred in trying to determine an appropriate sentence. There are many principles to be considered and weighed in determining that matter.
Under all of the circumstances, I have determined that for the count of Manslaughter you will be convicted and sentenced to six years imprisonment. I direct that you are to serve a minimum term of three years before becoming eligible for parole.
Pursuant to s 6AAA, I declare that the sentence I would have imposed but for your plea of guilty (and taking no other factors into account) would have been a sentence of 7 years with a minimum of 4 years and 3 months.
Declare that there have been 436 (four hundred and thirty six) days served in pre‑sentence detention in relation to this matter and such is to be noted in the records of the court.
Retention of 464 ZFB 1 Forensic sample is granted as is the disposal Order applied for.
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