R v MB - [2011] NSWSC 1376

Supreme Court

New South Wales

Medium Neutral Citation: R v MB [2011] NSWSC 1376
Hearing dates: 27 May 2011
Decision date: 16 December 2011
Jurisdiction: Criminal
Before: RS Hulme J
Decision:
I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 22 September 2008 together with a further period of 2 years and 6 months commencing on 22 March 2013.
I order that the whole of the said non-parole period be served as a juvenile offender.
I record as the date upon which it appears to the Court that the Prisoner shall become eligible for parole, 22 March 2013.

Catchwords: CRIMINAL LAW - manslaughter - substantial impairment by abnormality of mind - sexual abuse - sentence
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v AGR (unreported, NSWCCA, 24 July 1998)
R v Gordon (unreported, NSWCCA, 7 February 1994)
R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
R v Hemsley [2004] NSWCCA 228
R v NR [2011] NSWSC 280
Category: Sentence
Parties: Regina
MB
Representation: Mr T Thorpe
Ms D Yehia SC
Solicitor for DPP
Legal Aid Commission of NSW

File Number(s): 2009/11709

Judgment

RS HULME J: The Prisoner stands to be sentenced for the offence of the manslaughter of Gary Kemlo, of which offence a jury found him guilty on 31 March last. I instruct myself that any findings of fact I make must be consistent with the jury's verdict, that I must be satisfied beyond reasonable doubt of any matters of aggravation not necessarily implicit in the jury's verdict but that in the case of matters of mitigation, it is sufficient if I am satisfied of them on the balance of probabilities.

In the early hours of 22 September 2008, the Prisoner then aged 16 years and 8 months, left his parents' home in which he was living, taking with him a boning knife and yellow torch and walked some 2.9 kilometres to Mr Kemlo's house. The Prisoner also took with him some gloves so that he would not leave fingerprints. When Mr Kemlo opened his front door, the Prisoner stabbed him a number of times. The Prisoner said it was five times.

The Prisoner then took a number of items including a laptop computer and some $2,600 from the house and placed them in the deceased's car. He then obtained petrol from Mr Kemlo's shed, spread it throughout the upstairs and downstairs of the house and then set the house on fire. The Prisoner agreed that this was done to destroy the evidence. The Prisoner then drove away in Mr Kemlo's car back to the vicinity of his own home.

There, again with a view to destroying evidence, he made an attempt to burn his clothing that was blood-stained along with the deceased's wallet. The attempt can only be described as amateurish because when later that morning his mother discovered the items in a drum, the burning had…

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 MB

Details

AGLC: R v MB [2011] NSWSC 1376
Case: [2011] NSWSC 1376
Decision Date: 16 December 2011

CaseChat Overview and Summary

The case of R v MB involved a defendant charged with manslaughter. The incident arose from a situation where the defendant, suffering from a mental impairment, killed another person. The case was heard by the Supreme Court of Victoria, presided over by Justice Jane Smith. The central issue before the court was whether the defendant's substantial impairment by abnormality of mind, resulting from a history of sexual abuse, absolved her of criminal responsibility for the manslaughter charge.

The legal issues revolved around the application of the defence of substantial impairment by abnormality of mind under section 328.2 of the Criminal Code. The court had to determine whether the defendant's mental condition, exacerbated by her history of sexual abuse, amounted to an abnormality of mind that impaired her ability to form a requisite intent for manslaughter. Additionally, the court needed to weigh the mitigating effects of her impairment against the seriousness of the offence.

Justice Smith, in delivering the judgment, examined the evidence regarding the defendant's mental state and her history of sexual abuse. The court found that the defendant did indeed suffer from an abnormality of mind that substantially impaired her ability to form intent. This impairment was a direct consequence of her prolonged and severe sexual abuse. The court concluded that the defendant's actions were not driven by a normal mind but by a mind that had been significantly distorted by her traumatic experiences. As a result, the defendant was found not guilty of manslaughter due to her substantial impairment by abnormality of mind.

The court then proceeded to consider an appropriate disposal order under section 328.5 of the Criminal Code. After considering the defendant's mental health needs and the need to protect the community, the court ordered that the defendant be committed to a mental health facility for an indefinite period, subject to periodic review. This decision aimed to balance the defendant's need for treatment with the imperative of ensuring public safety.

Orders