R v MB
[2011] NSWSC 1376
•16 December 2011
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 1999Cases 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 280Category: Sentence Parties: Regina
MBRepresentation: 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 been very incomplete. The Prisoner then picked up an X-box that he owned - an item which he had taken a while to pay for and which was probably his most valuable possession - placed it in the deceased's car and proceeded in the car to the south side of Inverell.
He parked the car, walked some distance to premises of a friend Donna Bates, left his X-box and the items he had stolen there, bought some cigarettes at a shop, went to the premises of another friend Clint Truman who, at the Prisoner's request, bought some cannabis and alcohol for the Prisoner. While drinking, the Prisoner, in the words of Mr Truman, "had a bit of giggle ... to himself" but when asked what about, said, "nothing" and kept giggling. After a time, the Prisoner left and went to premises occupied by Mr Bradley Truman. There the Prisoner asked, "Do the police come here often?" and, a little later, "'cause I slit someone's throat and the police could be here soon". The police, in fact, arrived soon after arresting the Prisoner some time after 4.30 that afternoon. He has been in custody ever since.
The Prisoner gave evidence that when walking to Mr Kemlo's house on the night of his death he felt angry towards the deceased and he was hearing voices that were telling him to kill Mr Kemlo because of the latter's sexual abuse (of the Prisoner).
For completeness I should add that the Crown had submitted to the jury that the Prisoner's motive in attending the deceased's house on the night of the latter's death was theft and the killing occurred in consequence of the deceased interfering in some way with the Prisoner's planned activities. It seems to me that the jury's verdict involves a rejection of this theory. In any event, I regard it as less likely than that the Prisoner, for whatever reason, set out to kill the deceased.
Diminished Responsibility
The Prisoner was arraigned on a charge of murder. The jury acquitted him of that charge and convicted him of the lesser offence of manslaughter. It is common ground between counsel that the basis of the jury's verdict was that the partial defence of substantial impairment by abnormality of mind had been established.
I am satisfied that of the possible explanations for the verdict of manslaughter, that partial defence is the most likely and was established on the balance of probabilities. Furthermore, I am satisfied that the Prisoner's offence was not committed in consequence of a loss of self- control and his intent precludes a finding of manslaughter on a simple basis of an unlawful and dangerous act.
Prior to the killing, the Prisoner had had less than an ideal life. His mother was profoundly deaf due to her mother having contracted Rubella during pregnancy. The Prisoner's relationship with his mother seems to have been reasonable but communication was very difficult, a fact to which I can attest in consequence of her giving evidence during the trial.
There were substantial conflicts between the Prisoner and his father who worked for the Roads and Traffic Authority and who came home on some week-ends. I am disposed to accept the evidence of the latter to the effect that he regarded the Prisoner as out of control, not taking his medication, not sleeping, pacing the floor, playing music repetitively and at an excessive volume despite requests to turn it down, and running away from home on at least two occasions. On the day of the killing, there was significant dissension within the Prisoner's household. The Prisoner's father had sought to find out or discuss the Prisoner's problems. The Prisoner's mother intervened. Things became heated. The Prisoner's father was angry, inter alia, about the Prisoner having taken and then smashed a family car a month or so earlier. According to the Prisoner's father, the Prisoner "just more or less flew for us" and the Prisoner's father got to the stage where he had "a gutful" and was more or less walking out, and letting the bank enforce its mortgage. According to what the Prisoner told Dr Greenberg later, the Prisoner's father had called the Prisoner names such as "useless" and "a mistake".
The Prisoner gave evidence that he was emotionally and physically abused by his father and physically abused by his brother. I am disposed to accept that this evidence is true to a significant degree although, in light of the evidence of the Prisoner's mother and of the Prisoner's sister and views I have reached as to the Prisoner's credibility, not to the extent that the Prisoner's evidence might suggest. At the same time, I have no doubt that the Prisoner was a source of considerable frustration in consequence of actions I refer to in these reasons.
I accept that the Prisoner was also the victim of a great deal of bullying at school about being fat and about his mother being deaf. The consequences of his innate intelligence and matters to which I refer must also have been frustrating for him. For example, school records of September 2001 record "prefers gestures, poor language skills, reluctant verbal communicator, behind". Another, of June 2002, describes him as "working consistently but low achievement". Thereafter things deteriorated.
Exhibit 3, which contained the just mentioned extracts, shows that the Prisoner for a number of years before his attack on Mr Kemlo was an extremely disturbed youth. He had substantial behavioural problems at school and although a report of mid-2007 says that his behaviour was generally satisfactory, it is clear that often he was not amenable to discipline. Earlier in 2007, he had been suspended for 20 days. In July 2006 and March 2007 there were reports of him failing to wash. Although the document refers to occasions when the Prisoner appeared to be appreciably better, depression and thoughts of suicide as far back as 2006 are a constant theme. A hospital emergency department note of 3 August 2008 refers to injury threats to his mother, to the Prisoner smiling inappropriately and escalating inappropriate behaviour.
For some years before his attack on the deceased, the Prisoner manifested some unusual actions. He would pace up and down the floor for periods of time, laughing to himself or would sit on the floor, rocking. A neighbour, Colleen Quillen, gave evidence that when he came to her place, he would sit quietly on the end of the couch and would giggle to himself with his body slumped over and his head down for half an hour to an hour. On one occasion his sister asked him why he was laughing to himself and he replied, "because of the voices in my head". The Prisoner acknowledged a habit of playing music at very loud volume saying that this was a way to escape his emotions.
The Prisoner was born in January 1992. When he was about 12, his sister found him in the chook pen with a knife, threatening to kill himself. When he was 14 or 15, his mother found him in his bedroom with a knife, saying that he did not want to be alive. Although it was not, I think, the subject of oral evidence, a hospital emergency department note of 7 September 2006 in Exhibit 3, said that the Prisoner had left a suicide note after an argument with his mother, and stolen and smashed his father's car. Exhibit 3 records that in about 2006 he seems to have been talking of blowing himself and everyone else up, but in December 2007 he was a lot brighter and not wanting to do so.
The taking of the family car that was the subject of discussion on 21 September 2008 occurred after the Prisoner had an argument with his mother. When taking the car - it would seem for a second time - he left a handwritten note:-
I stole the car
cya
im sick of life
sick of whats going on in my head and i hate people come near me and I will kill
Some distance south of Inverell on the Moonbi range, the car ran off the road. Tamworth Hospital emergency department notes record that the Prisoner was brought in by police and that the Prisoner:-
Had been speeding up to 180 km, slowing down to 85-100 km/hr around the bends lost control of the car around the bend causing car to slide up a ramp designed to slow down trucks with brake failure.
To Dr Greenberg, a psychiatrist who saw the Prisoner after his arrest, the Prisoner said that he had driven the vehicle into a rock cliff in an attempt to kill himself. In evidence he maintained that he had taken the car in an attempt to kill himself, saying that he had not told the police officer who attended the accident that because he was afraid that he would be put back in hospital. The account he had given that officer was to the effect that he had been driving too quickly, had hit some loose gravel, lost control, hit the concrete kerb, realised the steering was gone and parked the car up the safety ramp. My inclination is to think that this was not a suicide attempt although it is clear that the Prisoner at least contemplated that course of conduct.
In May 2010 whilst in custody, the Prisoner slit his wrists in what does appear to have been an attempt to kill himself.
It should be mentioned that the Prisoner seems to have indulged to an appreciable extent in using cannabis. To Dr Greenberg and in evidence, the Prisoner said that his cannabis use commenced when he was 13, that is, in about 2005. Documents in Exhibit 3 suggest that this usage had become significant by or prior to August 2008. Although a note in Exhibit 3 created by Ms Rhonda Davis on 15 September 2008 or, as it bears two dates, possibly on 7 September 2008, recorded that the Prisoner was using $20 of cannabis a week, in evidence the Prisoner said that, leading up to the killing of Mr Kemlo, he was using as much as $1,000 worth a week, stealing to help fund this habit. While I accept, largely on the basis of Exhibit 3, that the Prisoner's usage was significant, I do not accept his evidence that his usage approached the $1,000 worth that he claimed. Inverell is a small community and the Prisoner lived out of town. I do not believe he could have indulged in the degree of stealing and illicit selling of stolen goods implicit in his evidence to the degree sufficient to support a habit of the extent he claimed.
In evidence, the Prisoner said that his best recollection was that he had had cannabis on the day before the killing but not on the day of the killing. To Dr Nielssen the Prisoner said he had not had any cannabis for a week before the killing although he also said that his pattern was to smoke throughout the day when the drug was available.
Many of the above activities led to the Prisoner being taken to a doctor or hospital. The possibility that he suffered from a bipolar disorder was raised as early as 2006 although one of the notes records that there was no clear history of highs - a factor which, on my understanding, is an essential element of a bipolar diagnosis.
Some evidence indicates that from age 13 he was also abusing alcohol. However, there is insufficient information to come to any concluded view as to the extent of this.
The Prisoner left school in August 2007 and worked then for a time at the local abattoir. He left home for some months and then returned home some months prior to Mr Kemlo's death. He seems to have ceased his employment after he left home and his estimate of when he returned home was about four months before Mr Kemlo's death.
Sexual abuse
It was urged on the Prisoner's behalf that a cause of his killing Mr Kemlo was that the latter had been guilty of a great deal of sexual abuse of the Prisoner. The Prisoner was, directly or indirectly, almost the only source of evidence on this topic. There are some improbabilities and serious inconsistencies in what he has said from time to time and it is accordingly necessary to consider this claim with considerable care.
The Prisoner's evidence was to the following effect. He first met the deceased when he was aged 8 years old and shopping with his mother. Thereafter, his mother would drop him off at the deceased's place each weekend. Then and when the Prisoner was aged 9, this weekend visiting continued and their activities involved watching TV, having lunch together or going to town. The Prisoner's visiting of the deceased followed an offer the latter had made to assist the Prisoner with his school work but, according to the Prisoner, no tutoring ever occurred.
When the Prisoner was aged 10, the deceased introduced him to pornographic magazines and videos and at age 10 the deceased would put his hands down the inside of the Prisoner's pants: when he was 11 or 12 the deceased took his own clothes off and masturbated. At first the Prisoner kept his clothes on.
At age 13 the Prisoner confronted the deceased who responded by threatening to kill the Prisoner's family. This worried the Prisoner, inter alia, because his mother was vulnerable due to her deafness and his father was away during the week. This was the only time, or one of only two times, that the Prisoner confronted the deceased although there were other times - there was some conflict in the evidence - when the deceased threatened to kill the Prisoner's family.
At age 14, and I am still recounting the Prisoner's evidence, the deceased commenced to perform acts of oral and anal sex on the Prisoner and the Prisoner performed similar acts on the deceased. These activities would last 5 to 10 minutes at a time and occurred each weekend when the Prisoner was 15 and 16 except for the period of months when the Prisoner was 16 and living in Inverell away from home.
According to the Prisoner, when he first returned home after that period in Inverell, the deceased came to the Prisoner's parents' home, said he wanted the Prisoner to go to his place and if he didn't the deceased was going to kill the Prisoner and his family. Because of this threat, the Prisoner complied with the deceased's wishes and thereafter each weekend the abuse continued. On the Saturday before his death, the deceased took the Prisoner down to his place where he made the Prisoner get undressed and anal and oral sex occurred.
The Prisoner said he had been too afraid to go to the police. When it was put to him that he knew that what the deceased was doing was illegal and that if the Prisoner complained to police it was likely the deceased would be locked up and would not be capable of carrying out any threats, the Prisoner said that the deceased had said "he would get someone else to do it".
The Prisoner's mother gave similar evidence as to the time the Prisoner and deceased met and that when younger the Prisoner would visit the deceased every weekend. Much of her evidence was difficult to understand but the tenor of it was that visits were less frequent when the Prisoner was older. She said that when the Prisoner was 16 he went to Mr Kemlo's only once or twice, when he was 15 not at all and that she could not remember the frequency of visits when the Prisoner was 14. She said that the Prisoner would visit the deceased's house on some weekends when he was 11 and 12 and sometimes in school holidays. She agreed that when the Prisoner was 15 and 16, she did not always know where he was. The Prisoner gave evidence in similar terms to that last statement.
The Prisoner gave evidence that he supported his cannabis habit by carrying out break and enter offences two to three times a week. Asked how he got from his place 28 to 30 kilometres out of town in and out to Inverell, he said that he would stay in Inverell once a week for the weekend, nearly every weekend, carrying out the offences, disposing of the property and obtaining cannabis. When it was put to him that if he was in Inverell he was not at the deceased's, he said he used to be driven back and forth by his mother all the time.
The Prisoner's father agreed that the Prisoner kept going to Mr Kemlo's house from about the age of 10 through to when he was 16. The Prisoner's father was not asked as to the frequency of this visiting.
The Prisoner's sister gave evidence of the Prisoner and Mr Kemlo meeting in terms not dissimilar to the evidence of the Prisoner and that at that time Mr Kemlo had "approached us in Gilgai shops about taking the Prisoner down there he said maths tutoring" (sic). She said that continued for about two years or so. However, while she would visit for a time, she ceased living with the family when the Prisoner was about aged 7 to 9.
She said that on one occasion when the Prisoner returned from Mr Kemlo's, he was crying and she saw a bruise on his face. On other occasions the Prisoner would return with lollies or money up to a maximum of $50.
One other matter of evidence that is relevant to the credibility of the Prisoner's account is evidence, principally from the Prisoner's father, that the Prisoner used to take off whenever the deceased visited the Prisoner's household, especially if "Garry brought his little boyfriend - a child of about 13 or 14 - around". There was no cross-examination of the Prisoner's father directed to identifying with any degree of confidence the period when the "taking off" occurred.
The deceased visited the Prisoner's property at about 8 or 9 am on 21 September 2008 and, as happened on other occasions, according to the Prisoner's father, the Prisoner took off straight away. The Prisoner's mother said that on the occasion of Mr Kemlo's visit on 21 September 1995, the Prisoner remained in his bedroom. I do not regard these accounts as inconsistent to any significant degree.
A Mr Polosak also gave evidence. At age about 15 he had lived at the Kemlo residence before Mr Kemlo moved in. For about two weeks both lived there. Thereafter, Mr Polosak visited from time to time. On one such occasion, the Prisoner was sitting at a table doing homework and the deceased was helping him. Mr Polosak was asked no questions on the topic of sexual activities.
The first time the Prisoner seems to have made any remarks concerning sexual abuse was about 9am or later on 22 September 2008 after killing the deceased and after he had driven into Inverell. There he was observed by a Ms Whittaker to be in a state that varied between normal and agitated, crying and swearing and was heard by Ms Whittaker to say more than once words to the effect, "Fucken dog. Fucken molesting cunt". On one occasion, Ms Whittaker heard the Prisoner say, "fucking dog wants to molest me. He deserves what he gets".
The topic of sexual abuse was the subject of a deal of evidence by persons who had contact with the Prisoner after he was arrested. In that connection it may be relevant to record that the Prisoner spent some time in Kariong and Baxter Juvenile Detention Centres and when talking to Ms Danielle Castles, a psychiatrist, in February and March 2010, the Prisoner said that the deceased was a nice man, that the Prisoner was ashamed that he had made false allegations about him and that the reason for the allegations was that other inmates at Kariong had made suggestions that the allegations might provide the Prisoner with a defence. In evidence, the Prisoner maintained that what he had told Ms Castles was a lie.
Earlier, on a number of occasions and despite repeated questioning, the Prisoner had told a Juvenile Justice worker, Mr Lockwood, that he had not been sexually abused.
A number of other persons gave evidence of what they had been told by the Prisoner on the topic of sexual abuse. These included a barrister and four psychiatrists who gave evidence in his trial.
Dr Nielssen
One psychiatrist was Dr Nielssen who first interviewed the Prisoner on 30 January 2009. The Prisoner told Dr Nielssen:-
It all began when my parents started fighting and then started calling me names. Dad left and when mum went to bed I got a knife and I went down to Garry Kemlo's place. I was feeling angry and depressed. He (Mr Kemlo) was just a target.
The Prisoner told Dr Nielssen that the deceased had not done anything wrong to him and that the Prisoner had done some work for the deceased, mowing lawns and helping with cementing and that the deceased had paid him fairly.
The Prisoner denied smoking cannabis the week before the killing and being affected by alcohol or any drugs.
Dr Nielssen saw the Prisoner again on 2 July 2009. During that interview, the Prisoner said he had been the subject of several sexual advances by the deceased between the ages of 11 and 13 the advances taking the form of the deceased placing his arm around the Prisoner and rubbing his genital area through his clothes. The deceased made jokes on sexual themes and drew attention to sexual themes on television but did not put on any pornographic material or expose himself or ask the Prisoner to touch him. The Prisoner explained not mentioning the sexual advances in their first interview because he was ashamed of what had happened and had not discussed the events with anybody. The Prisoner said counsellors at Kariong had become aware because of intercepted letters.
On 5 April 2009, the Prisoner had written to a friend Tracey Downes, saying that he wanted to get off his chest that he had been sexually abused by the deceased. The account provided by the Prisoner in that letter was by no means comprehensive but said that the abuse had occurred or commenced - the letter which became Exhibit L is not clear - when the Prisoner was aged 10 or 11. The letter was read by prison authorities prior to being posted.
It appears that in about March 2009, the Prisoner had also told his brother that he had been sexually abused.
Mr Bruce
On 9 November 2009, Mr Bruce, a Public Defender who had been briefed to appear for the Prisoner, raised with him the fact that the Prisoner had informed Dr Nielssen that he had been sexually abused and received detailed instructions on the topic, I infer to the intent that abuse had occurred.
On 30 January 2010, Mr Bruce had an audio-visual conference with the Prisoner who, on that occasion said in relation to the sexual assaults, "It's a lie". Thereafter, Mr Bruce tendered advice to the Prisoner who, on 5 February 2010, pleaded guilty to murder. (He was later allowed to withdraw this plea.)
Dr Greenberg
Dr Greenberg was the Prisoner's treating psychiatrist for about 12 months between about October 2008 and October 2009 while the latter was at Kariong but during this time did not discuss the alleged offence. However, when first seen by Dr Greenberg in October 2008, the Prisoner denied being sexually abused in his childhood though in, April 2009, the Prisoner told the doctor that he had, that the abuse involved the deceased, but the Prisoner refused otherwise to discuss the abuse.
On 22 November 2010, the Prisoner did provide details to Dr Greenberg. According to Dr Greenberg, the account that the Prisoner then gave him included the following:-
When he was 10 years old, the deceased showed him pornography of heterosexual, homosexual and lesbian themes. Later, the deceased put his hands into the prisoner's pants saying "It's fun and games". This led to them getting undressed and engaging in oral, anal and masturbatory sex. The prisoner felt awkward but, at that time, didn't know it was wrong.
At about age 13, he received sex education, realised what he was doing with the deceased was wrong and threatened to tell someone. The deceased then hit the prisoner and threatened to kill his parents.
Because of these threats, the prisoner kept going to the deceased's and engaging in sexual activity until he was 16.
On the weekend prior to the killing, the deceased came to the ... household and asked the accused to go to his home. He went because he didn't want his parents harmed and at the deceased's they watched television and then went to his bedroom and had anal and oral sex. They then went downstairs and watched more television. ... A few hours later, they again had sex in the (deceased's) lounge and watched more television ... And at approximately 6.00 pm on that evening, he went home.
The Prisoner told Dr Greenberg that they had sex "like that" on every weekend. Dr Greenberg said that the Prisoner gave him an account of similar activities "the following day" although other evidence indicates that the reference must have been to the day immediately prior to the killing.
Dr Greenberg took the view that whether or not the Prisoner was sexually abused was relevant to the issue of substantial impairment because it was only if he was sexually abused that his thinking and judgment was substantially impaired. Although I do not take this opinion into account, it might be mentioned also that Dr Greenberg expressed the view that whether the Prisoner was sexually abused was difficult to ascertain in light of the inconsistencies.
Dr Nunn
Dr Nunn's first contact with the prisoner was after the latter had been transferred to the Bronte Unit after his apparent suicide attempt on 8 May 2010. Dr Nunn then saw the prisoner regularly. Dr Nunn's account of the prisoner's description of the sexual abuse he had suffered was to the effect:-
When around 10 or 11 years of age, while sitting next to the deceased on a lounge watching television, the deceased put his hands into the prisoner's trousers fondling his genitals. When the prisoner was older, the deceased also procured the prisoner to anally penetrate him and later did the same to the prisoner. The prisoner was also procured to commit fellatio on the deceased.
Dr Nunn said that when reporting the history of sexual abuse, the Prisoner was sitting stooped, looking down, and had the facial expression of shame. The Prisoner found it difficult to talk, was hesitant in talking and had a marked physiological reaction of going red and being tense and distressed to a high level throughout the interview. The Prisoner exhibited these physical signs on each of the occasions Dr Nunn spoke to him on the topic. Dr Nunn placed weight on these symptoms because they are less subject to voluntary control than oral statements.
Dr Lucas
According to Dr Lucas, the Prisoner said that "when he was 11 or 12 he started to go to Mr Kemlo's place". At first Mr Kemlo used to hold his hand and put an arm around him. As time progressed, using his words, "he started to touch me in other places". Asked what he meant he said "Mr Kemlo put his hand down his pants". He said "they then ended up having sex". Asked when that was, he said "probably after a few years". Asked what it involved, he said "making me have anal sex, put my penis in his bum". Asked where this occurred, he said "in the house, in the loungeroom and the bedroom". The frequency was probably three times a week. I asked what other sexual activity there might have been and he replied "just putting penis in his bum". I pushed the issue and he then replied, Mr Kemlo had done the same to him when he was 13 or 14.
Because the issue of sexual abuse is one which goes to mitigation, the onus of establishing it lies on the Prisoner. Given the extent of his lying and the degree of inconsistency between his accounts, and subject to the following remarks, I am not prepared to place any significant reliance on what he told the jury or Mr Bruce or the psychiatrists. I am by no means satisfied that his accounts are not influenced by what was suggested to him by fellow inmates. Nor did the Prisoner's demeanour in the witness box inspire another view.
I also find the Prisoner's evidence concerning weekend visits to Inverell difficult to reconcile at a practical level with visits to the deceased as regularly as the Prisoner asserted. Furthermore, that the Prisoner could defy the deceased's desires throughout the period of months the Prisoner was living in Inverell but, on returning to live at home, feel obliged to visit the deceased each weekend is also unlikely. Nor am I persuaded that threats by the deceased would have had the impact that the Prisoner alleges.
On the other hand, there remains an appreciable body of evidence that does support the view that there was some abuse. It strikes me as quite unlikely that the Prisoner was making up a tale of abuse when heard by Ms Whittaker. The Prisoner's reactions to the deceased's visits as recounted by his father argues significantly in favour of some impropriety having occurred, although such conduct also argues against the Prisoner having, even unwillingly, visited the deceased with anything like the frequency that the Prisoner alleged, at least unless he was a willing, if ashamed, participant and this has not been suggested.
The observations of Dr Nunn also argue in favour of abuse having occurred, although it is also to be noted that, as I adverted to in my summing up, both in the witness box and in the dock, the Prisoner spent a deal of time during his trial staring down at the floor in what could be described as a hang dog look. Furthermore, if, as the Crown suggested, the whole story of sexual abuse was a lie, that would account for at least some of the aspects of his demeanour referred to by Dr Nunn.
I have found resolution of this issue very difficult. However, ultimately I have come to the view that some sort of abuse must have occurred, although I believe it was nothing like as frequent as the Prisoner's evidence would suggest. Nor am I satisfied that it was as serious as the Prisoner alleges. More specifically, especially in light of the limited nature of the Prisoner's remarks detailed by Ms Whittaker and also those in the letter to Tracey Downes, I am not satisfied that there was any penetration.
On the other hand, I am disposed to accept that sexual abuse was a factor that operated on the Prisoner's mind in his determination to kill Mr Kemlo. Once one concludes that a robbery gone wrong is not the explanation for the killing, there are only two explanations left. One is the Prisoner's impairment of mind but it is impossible to conclude that that is a sufficient explanation on its own in circumstances where there is no suggestion that, except by sexual abuse, the deceased had ever, in any presently significant way, offended the Prisoner. The other explanation is sexual abuse.
The relative weight each of these matters had is not a matter susceptible of firm determination. All one can say is that, in light of the psychiatrists' evidence and the Prisoner's history the abnormality of mind was substantial and, I am not satisfied that, in the scale of such things, the sexual abuse was. Putting these things aside, the premeditation and deliberateness of the Prisoner's actions in taking the boning knife and gloves and walking almost 3 kilometres argues for adjudging his offence as objectively very serious. So does the fact that at least in part - as the Prisoner told Dr Nielssen - the deceased seems to have been a target of anger apparently inspired by dispute within the household in which the Prisoner lived.
Of course, there are other factors. One is the Prisoner's youth and in his case I have no doubt, immaturity. The relevant principles and statutory provisions to which regard must be had in this connection are set forth in the judgment of Garling J in R v NR [2011] NSWSC 280. It is unnecessary that I repeat the statutory provisions but the relevant principles, as his Honour noted, include the following:-
(a) Considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence;
(b) In recognition of the capacity for young people to reform and mould their character to conform with society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation;
(c) The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for the offender's youth, not just their biological age;
(d) Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring anti-social conduct. Of course, the weight to be given to a person's youth diminishes the closer the offender approaches the age of maturity:
(e) The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in a way an adult might conduct him or herself and has committed a crime of violence or considerable gravity.
See also R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451.
Certainly, the Prisoner's offence falls within the description at the end of the passage just quoted. As in every case of manslaughter, an appropriate starting point is to recognise that what is involved is the felonious taking of a human life - see R v Blacklidge (NSWCCA, 12 December 1995, unreported), per Gleeson CJ. And it takes no great maturity to appreciate in the couse of a 3 kilometre walk, that stabbing another human being infringes the rights of others in a way that no civilised society can tolerate and is an extreme reaction to abuse that could have been dealt with in other ways.
It was also urged on the Prisoner's behalf that as his offence was inspired by sexual abuse, that fact operated in mitigation. Reliance was placed on observations in R v AGR (unreported, NSWCCA, 24 July 1998) and R v CB & IM [2006] NSWSC 261 where Buddin J regarded the principle as also applicable in the case of manslaughter. It was submitted that the motivation for the offence here was directly related to the sexual abuse perpetrated by the deceased, was not a case of revenge for past abuse and not a case where a more severe sentence is warranted in order to address issues of deterrence.
While I accept that sexual abuse was a motivating factor in the instant offence and should be regarded as operating in mitigation, I am not persuaded that the Prisoner's actions were not inspired by revenge. Furthermore, because of my view as to the Prisoner's credibility, I just do not know whether, as he alleges, he was actually hearing voices telling him to kill the deceased.
It was further submitted that as the prisoner's capacity to control himself and judge right from wrong was substantially impaired by his mental illness, the objective seriousness of the offence and the weight to be given to the principles of personal and general deterrence were reduced. Reference was made to R v Swan [2006] NSWCCA 47 at [60] - [61] and R v Hemsley [2004] NSWCCA 228 at [33] - [36] where, summarising the effect of mental illness, Sperling J observed that it might be relevant in four ways:-
33 First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
34 Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
35 Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].
36 A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24].
I accept the proposition at the beginning of the immediately preceding paragraph. I also accept all of these propositions of Sperling J. I accept also that, pursuant to the first, the punishment otherwise appropriate should be reduced, and that pursuant to the second, the weight to be given to general deterrence should be moderated. Although there are pluses and minuses, I am not persuaded that a custodial sentence weighs more heavily in this case. For reasons referred to below, I think special deterrence is of importance in this case.
However, there are other considerations. As the Crown submitted, recognition has already been afforded to the Prisoner's mental illness and his capacity to control himself and judge right from wrong in the jury's decision to convict him of manslaughter rather than murder. Any mitigation of his sentence further on account of these matters runs the risk of double counting. To some degree similar, considerations apply to the first two of the propositions of Sperling J.
In summary, the Prisoner committed an offence which, even characterised as manslaughter, was objectively serious. Causative factors included the fact that the Prisoner had been sexually abused, the Prisoner's anger resulting from dissension in his parents' household and the Prisoner's abnormality of mind. Of these three, the latter was in my judgment, by far the most significant.
There are a number of other matters to which regard must be had. Putting aside the issues of sexual abuse and substantial impairment by abnormality of mind, by a combination of pre-trial and admissions made during the trial, the Prisoner made complete pre-trial disclosure of his offence. The issue of substantial impairment was resolved in his favour and so has been the issue of sexual abuse although, in respect of this latter topic, in light of my conclusions, only to a limited degree. Section 22A of the Crimes (Sentencing Procedure) Act 1999 provides that a Court may impose a lesser penalty than it would otherwise impose having regard to the degree to which the administration of justice has been facilitated by the defence albeit the lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. The Prisoner is entitled to some reduction in consequence of the application of this section.
Section 21A of the Act just mentioned lists a large number of aggravating and mitigating circumstances to which, if they are present, the Court is also required to have regard. It is not necessary that I list the significant number of aggravating circumstances here. They are reflected in what I have said above. I should however refer to some of the mitigating factors mentioned in the section. Although I have concluded that sexual abuse was a factor that played a part in the Prisoner's offending, I do not regard paragraph 3(c), which refers to the offender being "provoked", as having any relevance. The Prisoner has no prior criminal convictions, although in light of his evidence of breaking, entering and stealing, I do not regard him as of previous good character. I accept that the Prisoner has shown remorse. On the issues of the Prisoner's prospects of re-offending and rehabilitation, it is necessary to refer to further evidence.
Admitted into evidence during the sentencing proceedings was an affidavit showing that the Prisoner was presently engaged in Year 11 studies for the Higher School Certificate
There was also a report from Dr Joanne Shannon who has been the Prisoner's treating psychiatrist since November 2010. It is not practicable to incorporate in these reasons all of the observations in that very detailed report, but matters which may be noted include the following:-
The Prisoner has always shown a high degree of respect for staff and other patients. While occasionally expressing anger, he has refrained from reacting in an aggressive manner.
He has demonstrated self-discipline in maintaining his studies and motivation to maintain his physical health by exercise and diet. He has interacted well with other patients and is liked and respected by them.
He has expressed remorse for the killing of the deceased, saying that he regretted his actions and that what he did was "inhumane". He denied any longer feeling any anger towards the deceased and denied any thoughts of violence to others.
There is no evidence of either depressed or elevated mood. There is no formal thought disorder. The Prisoner denied any recent perceptual disturbances and demonstrated good insight into his mental health diagnosis and ongoing need for treatment. He was motivated to abstain from alcohol and other drugs.
It is not possible to predict future violent behaviour. While several positive factors, eg, the absence of psychopathy, personality disorder or prior supervision failures, good response to treatment and absence of violent behaviour throughout the period of hospitalisation, exist, the prisoner has also a number of historical risk factors for violence. Considered together, these factors would suggest that there remains an elevated risk of violence compared to other men of his age in the general population.
The prisoner suffers from bipolar disorder, which is a serious mental illness, although he has responded well to treatment and his mood is currently stable.
The prisoner's risks to others and himself would be likely to increase in the context of exacerbation of his bipolar disorder which could occur as a result of severe psychosocial stressors or non-compliance with his management plan. His risk would also increase if he were to relapse into drug and alcohol abuse. That risk would also increase when the prisoner is returned to a custodial setting and on his release from custody, occasions when there will be a reduction in support.
The prisoner will experience exacerbations of his bipolar disorder which may be precipitated by stressful life events or which may occur without obvious triggers. At such times, he will require review of his medications and may require hospitalisation. He has good insight into his mental illness, is aware of the need for long-term psychiatric support and wants to continue his medications. Prior to his release from custody, it will be essential that he is referred to a community mental health service.
He requires long-term trauma counselling to help him deal with the long-term effects of sexual abuse and domestic violence. He would benefit from formal drug and alcohol counselling so that he can identify triggers that may lead him to relapse and learn adaptive coping skills.
Most of the first three indented paragraphs do indicate that the Prisoner is far more settled than he was prior to his offence and that augurs well for his future. Though undoubtedly the evidence indicates that the Prisoner did indulge in alcohol use at a far younger age than he should have, as I have said, I am unable to come to any concluded view as to the extent of this. However, the evidence does indicate that drugs were a significant problem and despite some positive indications in this regard there is nothing in this report, nor any other evidence in the case, that enables me to have any great confidence that the Prisoner will not return to some drug use. On the other hand, logic would suggest that the experience of his current incarceration should operate as a disincentive from conduct that increases his risk of recidivist behaviour and that that incarceration should be long enough to provide some assurance that it does.
The Prisoner is also entitled to have taken into account the fact that, apart from the attack on the deceased, he has no history of violence. In the result, while I am not disposed to find that the Prisoner's prospects of rehabilitation and not re-offending are as high as good, I accept that they are at least reasonable and perhaps better than reasonable.
Against those findings, I turn then to the question of what sentence should be imposed.
Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a Court may impose a sentence on an offender. Having regard to the degree of repetition and, to some degree, generality in which some of the sub-paragraphs of that section are expressed, the statement in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 476 is clearer:-
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.
Long-standing authority indicates that deterrence of others is of less weight in the case of an offender whose offending has been committed in consequence of some mental illness. Deterrence of the Prisoner is of significance in this case but when one has regard to the fact that, apart from the offence for which he is to be sentenced, he has no history of violence and the subject offence was largely inspired by his state of mind and some abuse to which he had been subjected, again and subject to the remarks I have previously made on the topic and those in the following paragraph, I do not think that personal deterrence looms large in the sentencing consideration. The one reservation concerns the use of drugs.
Experience in the Courts makes it clear that illegal drugs are a substantial contributor to irrational and criminal behaviour, particularly in the case of those who have certain congenital mental abnormalities. While it may be reasonably anticipated that the Prisoner will, while incarcerated, have brought home to him such dangers, it is appropriate to fix a sentence likely to deter him from resuming his use of such drugs.
Veen v The Queen (No 2) makes clear that there are limits to the operation which can be given to incarceration for the purposes of protecting society. In any event, it seems to me that, in the circumstances of this case, the protection of society is largely bound up in the considerations referred to in the immediately preceding paragraph.
The evidence of the Prisoner's pursuit of education and the report of Dr Shannon make clear that reform, or rehabilitation, of the Prisoner has been and will continue to be addressed at least so long as he remains in a forensic hospital or juvenile justice centre. There are no grounds for thinking that the Prisoner's rehabilitation is likely to be assisted by a sentence longer than I intend to impose.
The fifth of the considerations referred to by the High Court is retribution. This Court said in R v Gordon (unreported, NSWCCA, 7 February 1994):-
Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: R v Goodridge (1952) 7 WN 42 at 43; R v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; R v Rushby (1977) 1 NSWLR 594 at 598. Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.
Of course, that latter proposition may not be taken too far. There are those who, in their loss, feel that the law should still demand an eye for an eye or a life for a life but the law has long since abandoned those extremes.
There is no clear tariff for manslaughter offences, particularly those committed under the influence of an abnormality of mind. It is implicit in the expressions "substantially impaired" and "impairment ... so substantial as to warrant liability for murder being reduced to manslaughter" that there will be variations of degree. Some impairment may be gross, some may only just fall within the description of "substantial" so as to warrant the reduction. The Prisoner's history demonstrates that his abnormality of mind was, by no means, at the bottom of the scale. There are, of course, also the other factors to which I have referred to be taken into account.
Counsel for the Prisoner submitted that I should make a finding of special circumstances upon a number of grounds. I regard the fact that the Prisoner is serving his first period of incarceration and the desirability of him being subjected to a longer than usual period of supervision in respect of his mental condition and potential to relapse into drug use as ground for the finding sought. I am also satisfied that, within the terms of s 19(1A) of the Children (Criminal Proceedings) Act 1987 there are special circumstances justifying detention of the Prisoner as a juvenile offender. Those special circumstances are that:-
(a) The Prisoner is vulnerable on account of mental illness or disability;
(b) the only available educational, vocational training for therapeutic programmes that are suitable for the Prisoner's needs are those available in detention centres, and
(c) if the prisoner was committed to a correctional centre there would be an unacceptable risk of him suffering harm due to his youth and mental abnormality.
I base the conclusions set out in sub-paragraphs (a) - (c) upon the evidence in this case and knowledge, gained in this jurisdiction of the situation in correction centres generally.
Accordingly, in the circumstances of this case, it seems to me appropriate to sentence the Prisoner as follows:-
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.
Decision last updated: 16 December 2011
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