R v Olden
[2001] VSC 119
•24 April 2001
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1430 of 2000
| THE QUEEN |
| v. |
| KYM OLDEN |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 24 APRIL 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 119 | |
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CATCHWORDS: Murder – Deceased strangled in hotel room after perceived sexual advance – Offender affected by amphetamine psychosis – Effect upon level of moral culpability and weight accorded to general deterrence – Intentionally cause serious injury - Attack on cell mate with boiling water followed by kicking and attempted strangulation – Victim imprisoned for child sexual abuse – Plea of guilty – Residual effects of amphetamine psychosis and offender's own history of sexual abuse considered – Need to deter prisoners from perpetrating violence on fellow inmates – Traumatic early life – Some prospects of rehabilitation – 14 years' imprisonment for murder – 5 years' imprisonment for intentionally causing serious injury with 2 years cumulation making a total effective sentence of 16 years – Lower than normal non-parole period of 11 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | G. Horgan SC | Office of Public Prosecutions |
| For the Accused | J. Desmond | Victoria Legal Aid |
HIS HONOUR:
Kym Olden, you have been found guilty by a jury of the murder of Paul Lisinski at St Kilda on 5 August 1999, and you have pleaded guilty to intentionally causing serious injury to Rachel McMahon at Deer Park on 28 August 1999. It is now my responsibility to sentence you.
In order to do so, it is necessary to examine the facts surrounding the commission of each of these offences so as to place your actions in context. Those facts may be briefly stated.
On 5 August 1999, having met the deceased, Paul Lisinski, who you had known for three or four months, you signed yourself into the Gatwick Private Hotel as the guest of Mr Lisinski. For the sum of $15 you were permitted to stay in his room overnight.
The evidence of a large number of witnesses was to the effect that Mr Lisinski was a quiet, docile alcoholic, not given to violence. In the month before this evening you had stayed overnight in his room on several occasions. Additionally, you would frequently visit his room during the day to drink coffee or alcohol with him. On at least one occasion you had consensual sex with him.
On this evening you entered his room about 6.30 p.m. You were next seen about 1.30 a.m. When you were barefoot and about to enter a bakery in the vicinity of the Gatwick Hotel. The body of Paul Lisinski was found in his room in the early afternoon of 8 August 1999. He had been strangled with a blue dressing gown cord.
The ligature itself involved a simple slip knot and it had been pulled tight causing bruising, the fracturing of the hyoid bone and, ultimately, asphyxiation. The length of time of the compression of the neck to cause the associated petechial haemorrhaging was a minimum of 10 to 15 seconds up to a minute or two. Professor Cordner said 15 to 30 seconds was a general minimum time. Apart from that fatal injury, Professor Cordner found bruising involving the left side and back of the scalp caused by contact between the head and a hard surface of some type, and a fractured nose. There were incised wounds to the right side of the forehead produced by a sharp edged implement such as a knife having been wielded between three to five occasions. There were also lacerations to the left upper lip, inside the mouth and on the lower left jaw, the former caused by something blunt and the latter probably from a blow to the outside of the face.
The deceased's blood alcohol reading was 0.25 which was five times the legal limit for driving. Therapeutic levels of the drugs Oxazepam and Diazepam were also found on analysis. These drugs are often sold as Serepax and Valium and are both minor tranquillisers and sedatives.
When found, the deceased had his shoelaces tied together, a rolled towel under his chin and a doona cover pulled over his face. In the record of interview conducted by the police, you gave various versions of what had occurred on the fatal evening. On one account, you initially tied Mr Lisinski's shoelaces together as a bit of a joke when he was intoxicated. He stood up from the couch upon which he was sitting next to you, fell on top of you, and was grabbing your breasts. You then pushed him away and elbowed him in the head. You heard a crunch and observed his nose to bleed. You told the police that you got up from the couch upon which he was still lying, took his brown vinyl belt which he had earlier removed from his trousers, and looped it through the buckle. At this point you said it was around the deceased's shoulders. You pulled the belt tight causing it to break. Thereafter you kicked the deceased in the head and left. You also claimed that the deceased had attempted to "spike" your drinks during the evening - a manoeuvre which you had discovered and thwarted.
On your next version to police, you were getting dressed after a shower when the deceased tried to pull your jeans off. Thereafter there was a wrestle on the couch. The deceased got behind you on the couch and tried to wrap his arms round you. He was very drunk. You elbowed him as hard as you could. The blow stunned him and he got a blood nose. You turned around and put your foot on his hand, saw the belt poking out from under the deceased's elbow, grabbed it and inserted it through the buckle. You claimed to be trying to tie the deceased's arms up to stop him grabbing you. However, the belt went around the deceased's neck and you pulled it tight. He grabbed hold of the belt and was also trying to fight you off, albeit you told the police he was incapable of throwing a punch. You told the police that you then tied his shoelaces up and left the premises. On this version of events you deny kicking him.
One is driven to the conclusion that apart from your admissions to police of strangling and physically assaulting the deceased, which, to some extent, are corroborated by the objective evidence of his injury, little reliance can be placed on detail contained in that interview.
The lack of reliability of the record of interview may be gauged by the false reference to the use of a belt which, it was asserted, broke; the claim of being kicked in the face by the deceased when there were no injuries specifically attributable to such account; the switch in the account of the tying of the laces as a joke early in the evening to the tying of the laces at the end of the episode so as to prevent the deceased following you.
In addition to your police interview, there was evidence from a Ms Lynda Ierace of a conversation in prison in which you reiterated your account to police of putting the deceased's belt around his neck. According to Ms Ierace you also spoke of bashing the deceased's face with cups in a bag and kicking his face with boots that you were wearing. That witness stated that you told her of disposing of the cups and your boots in the Yarra so that no-one would find them. In fact, a silver spoon and coffee mugs, as well as a pair of shoes, were ultimately located in the water in the general vicinity of the St Kilda pier.
In your record of interview you asserted that, on one occasion, apparently while you were asleep, the deceased had had non-consensual sexual intercourse with you. You placed this occurrence about two months before the fatal evening. You also alleged that a week or two before this evening, when you had got up from his couch to turn the radio on, he had grabbed your breasts from behind. You stated that the deceased had later apologised to you for the rape incident in the presence of James Jones (a Gatwick resident). He did not confirm this.
Despite the unreliability of your account to the police, I am prepared to accept that what you perceived as some form of drunken sexual advance was made towards you by the deceased on the fatal evening. Whether it followed upon prior episodes of non-consensual sexual intercourse and unwelcome sexual groping, as you claimed in the record of interview, the jury verdict may be interpreted as a finding that your recollection to any clumsy advance on this evening was quite out of proportion to what occurred. As is clear by the jury verdict, the fatal act which you performed was done either with the intent to kill or to cause really serious bodily injury to Mr Lisinski and was perpetrated without any lawful justification or excuse.
Indeed, the deceased, who was a man of 184 centimetres in height and 80 kilograms in weight, can hardy have been posing any threat to you if you had time to obtain the bathrobe, fashion the slip knot, place it around his neck and successfully pull it tight.
Insofar as the offence committed against Ms McMahon is concerned, I rely on her account since it was conceded by your counsel, Mr Desmond, that the record of interview which you made on 28 August 1999 is "a litany of lies".
At about 10 p.m. On Friday 28 August 1999 Ms McMahon was placed in your cell. She was provided with a fold-up bed upon which to sleep. Ms McMahon was crying because she feared for her safely, having earlier been abused by other inmates who called her a "child tamperer". Indeed, Ms McMahon had been convicted of a number of offences including acts of gross indecency and aggravated rape involving children.
According to Lynda Ierace, in evidence given at your murder committal, you and the other prison inmates were aware that one of you would have to share a cell with Ms McMahon. In a statement to the police dated 29 August 1999 Ms Ierace describes you as being depressed and upset on that day and, for some reason, concerned that the new girl would probably stand over you for your pencils. She deposed to you taking two or three white plates from the kitchen together with some pink washing gloves. She said she was worried about the plates because you had told her that when you did the murder you put cups into a plastic bag and smashed and kicked the bag into the deceased's face. She thought that you may do the same thing with the plates to Ms McMahon. Another inmate, Ms Monique Oakley, observed you trying to hide plates, knives, forks and spoons up your jumper earlier that evening.
Initially you appeared to be asleep on a bed in the cell but, after about 15 minutes when Ms Mahon had continued crying, you commenced talking to her telling her not to worry or stress out. Efforts by Ms McMahon to contact Master Control over the cell intercom to see if she could stay in the Medical Unit for the evening were unsuccessful. Ms McMahon gave you several cigarettes at your request and, during this time, you put your shoes on. On about four or five occasions you got out of bed and went to a kettle on a table in the cell, turning it on so it would boil, doing nothing further. Such was Ms McMahon's concern that she remained awake. On the last occasion that the kettle boiled, you picked it up and poured the water over Ms McMahon's face. You then pulled back the donna and poured the water over her chest. At the time she was wearing a T-shirt and black leggings. Ms McMahon experienced a burning pain to her face and upper chest area. She scrambled out of bed and started banging on the door for help. She managed to call Master Control. At that stage you grabbed her hair and pushed her down to the ground. You kicked her several times to the head and body while wearing the shoes that you had previously put on. You also bashed her head into the concrete floor several times. You then got a cord from the dressing gown you were wearing and wrapped it twice around Ms McMahon's neck. You pulled it tight causing her to choke. Her endeavours to stop this were to no avail. At one stage she believed she stopped breathing. Thereafter you loosened the cord and Ms McMahon was able to put her fingers under it to stop the strangulation. Nonetheless, you continued to pull the cord while kicking her and hitting her with a silver ashtray from the cell as well as a plastic bag with something in it. During this time you were telling Ms McMahon that she was going to die and that she didn't deserve to live. You also called her a "tamperer" (being a child molester). It was only seconds before the prison officers opened the cell that you released your grip on the cord around Ms McMahon's neck.
According to Dr Esther Belleli who examined Ms McMahon on 30 August 1999 at the Alfred Hospital Burns Unit, she had a right periorbital haematoma, a two centimetre intraorbital laceration, a subconjunctival haemorrhage to the right eye, superficial burns to the face and superficial partial thickness burns to the neck, chest and breasts, the cape region, shoulder and right hand. In total, burns covered 18 to 20 per cent of her body. The hospital report also records extensive bruising to the right side of the face with significant swelling; a three centimetre cut over the right cheek and another three centimetre cut over the upper lip. Apart from the physical effects of this attack, the victim impact statement made by Ms McMahon records that she has had continuous nightmares, has developed a lack of trust towards others and an fear of boiling water.
Your counsel conceded that your actions in relation to Mr Lisinski were "wholly disproportionate" to the situation in which you found yourself. The same comment may obviously be made about your attack on Ms McMahon who did nothing to provoke your violence save that she bore the stigma of the offences of which she had been convicted.
Each of these offences constitute a serious breach of the criminal law. I have remarked on a number of occasions that the courts have a duty, through the imposition of appropriate sentences, to uphold the sanctity of human life and to deter persons who, by resorting to violence, seek to destroy such life. Specifically in relation to the offence of intentionally causing serious injury to Ms McMahon, the courts have a duty to protect vulnerable persons within our prisons. Imprisonment involves the deprivation of liberty, it should not involve the gratuitous infliction of violence. That having been said, there are factors in your case which tend to reduce, to some extent, your level of moral culpability and the weight to be accorded to the principle of general deterrence. Those factors emerge from an examination of your conduct in light of your life experiences and their effect upon you. In this regard the reports and evidence of Dr Justin Barry-Walsh, a forensic psychiatrist; Mr Bernard Healey, a clinical psychologist; and the evidence of a long-term friend of yours, Mr Frederick Hill, are enlightening.
You are 28 years of age having been born in Carlton and brought up in a number of locations including Oakleigh, Springvale and Chelsea. You are the eldest of five sisters. .in your early years the man you believed to be your father was physically abusive to you, administering severe beatings with a belt as well as punching and kicking you. From the ages of six to nine you would receive a severe beating about every three months. It did not, however, end there. You were also sexually abused on many occasions by this man and, indeed, by his associates. This took the form of digital penetration of the vagina and the requirement to perform oral sex. After this sexual abuse you would apparently be rewarded with small change for what was regarded as your favours. At this time your mother had two jobs and you in effect became a surrogate mother to the younger children, being involved in organising the household. At the age of seven, having learned to read, you had discovered that the person you had regarded as your father was in fact your stepfather. In fact your natural father, Anthony Olden, was murdered in Mildura in 1987 when you were in your early teenage years.
Insofar as your education is concerned, it was marked by instability in that you attended primary schools at Clayton West, Dingley and Chelsea. Nonetheless, you enjoyed primary school because it represented an escape from the home. It appears that by the time you entered secondary school your attendance was waning, you were truanting and becoming increasingly disruptive at home as well. It was about this time that you were also involved in petty crimes such as shop lifting. The end result was that your education, by then at Mordialloc-Chelsea High School, was interrupted half way through Year 8 when you were made a Ward of the State and placed in Allambie. After some months you were placed in the Windsor Hostel in Prahran. It was while there, at about the age of 14, that after interaction with older girls, you began engaging in prostitution. It was also at this stage that you commenced drug use, sniffing a substance called "Preen" and using heroin and amphetamine intravenously. Also at the age of 14 you commenced a relationship with a boyfriend aged 20 years and went with him first to Cairns and then to Darwin. Thereafter you worked as a street and parlour prostitute. Indeed, apart from prostitution, your only other employment was for a period of 18 months in 1998 to early 1999 when you worked in the racing industry as a strapper at a stable in Caulfield.
At about the age of 17, you became accidentally pregnant to a client in the course of your parlour work. Your son was subsequently looked after by the parents of your then boyfriend who himself later committed suicide in the context of a depressive disorder. Although you had ceased using drugs during the course of your pregnancy, after the birth of your first child, you became addicted to heroin.
Prior to travelling to Cairns, you had formed a relationship with a Brett Reynolds. On your return to Victoria when you were about 19, you resumed that relationship. Once again you became pregnant and ceased to use heroin. After the birth of your daughter, you resumed your heroin use, taking up to half a gram daily. On occasions you used prescribed Methadone, for example for six months at the age of 21, and again during the period of 18 months prior to May 1999.
You brought up your daughter for some three years but subsequently she was looked after by Mr Frederick Hill and his wife, (the wife being the natural mother of the father Brett Reynolds). The couple have had full custody of your daughter, who is now aged eight, for the past three years. You do, however, have access to her. Mr Hill's continued kindness to you over the years is most impressive. He gave evidence of meetings with you prior to the resumption of your relationship with Brett Reynolds, at which he witnessed the physical effects of a number of attacks made upon you during that period. Even on resuming your relationship with Mr Reynolds, there was an occasion where you slashed your wrists.
In addition to the physical abuse, you were involved in car accidents at the age of 19 and again at 21. On each occasion you lost consciousness and had teeth knocked out. As a result of the second accident you had plates and screws inserted in a fractured right ankle. To compound your problems, you suffer from epilepsy, and apart from petit mal attacks, you have been experiencing major epileptic fitting two or three times a year since the age of 17. You are presently taking Tegretol, an anticonvulsive medication, to control your seizures. Happily, a CT scan conducted in 1999 was normal and tests performed by Mr Bernard Healey also indicated no signs of cerebral dysfunction. Further, IQ testing revealed you to be of average intelligence.
Turning to the events immediately preceding these offences, it appears that in about March or April 1999 you developed a very heavy amphetamine habit involving up to two grams of intravenous amphetamine per day. You also commenced the oral ingestion of Ritalin, which is an amphetamine like agent. This was in addition to being on Methadone. Subsequent to the escalation of your amphetamine consumption, you began hearing voices directing you to perform various activities such as filling up garbage bags with phone books, walking up and down particular streets and picking up used wrappers.
On 8 May 1999 (about eight days after you had got cold turkey from Methadone) you were involved in a road accident where you were knocked from a push-bike. This resulted in an episode of road rage where you attacked the motorist. This in turn led to police intervention and your attendance at the Alfred Hospital Psychiatric Unit where you were assessed. The medical notes, dated 10 May, state that you appear to be psychotic and possible diagnoses including borderline personality disorder, drug induced psychosis and temporal lobe epilepsy. Your drug screening on 11 May was positive for amphetamine, cannabis and Diazepam. On the following day you were noted to have no psychotic symptoms but to have been depressed. You discharged yourself thereafter but re-presented on 27 June after an episode in which you became distressed and disturbed while seeking help for a person you imagined was trapped in an air conditioner. You were noted as being very agitated and angry and required intravenous sedation. On the following day you were found to have no formal thought disorder and to be stable. Consequently you were discharged from the compulsory section and thereafter absented yourself from the ward. No firm diagnoses were made on this occasion but among the possible diagnoses advanced was drug-induced psychosis.
You informed Dr Justin Barry-Walsh that you were hearing voices during both your presentations to the Alfred Hospital Psychiatry Unit but withheld this information from the assessing team. You also informed Dr Barry-Walsh that in about June/July of 1999 you ceased using amphetamines because of their disturbing effects upon you. It was the doctor's opinion that at the time of the killing of Mr Lisinski you were suffering from an amphetamine psychosis although its effect was waning. On your account of events to Dr Barry-Walsh you, in effect, reiterated your assertion that you had been previously sexually exploited by Mr Lisinski, and that he had subsequently apologised to you. You believed that, on this evening, he may have spiked your drinks with Benzodiazepine a large number of which you had yourself taken on top of the wine you had been drinking. You spoke of a consequent argument with Mr Lisinski about his behaviour in making sexual advances towards you when you were drunk. On this version he became very intoxicated and you described him lunging for you at one point. This triggered feelings of anger and rage in you as you believed that agreement had been reached that he would not behave in that was any more. You stated that your memory from there was blurred but at that point you attacked and killed the deceased. Subsequently the voices, that had been absent for most that have night, returned and suggested that you take your shoes off on throw them off the pier.
On the basis of his history Dr Barry-Walsh expressed the view that at the time of the killing you were suffering from an amphetamine-induced psychosis albeit that it was waning. It should also be noted that the doctor did not regard this psychosis as providing you with any defence of mental impairment. I quote from his report:
"From her account there were persecutory feelings and increased aggression. Superimposed on this at the material time she was heavily intoxicated with both alcohol and Benzodiazepines. The man in question she indicates had previously made sexual advances to her that were unwanted. She was loud and argumentative with him over the course of the evening. At the time at which she thought he made a further sexual advance this arousal and anger exploded into rage. Thus her rage and behaviour at the material time seems to be related to a number of factors. Firstly there is her background history of sexual abuse. Secondly that she was intoxicated with alcohol and drugs which would act to further disinhibit her and exaggerate her aggression. Thirdly she had an amphetamine psychosis which, although remitting, was still active at the time. Fourthly her personality is characterised by difficulties in containing impulses and excessive affects such as rage".
It seems to me that the doctor's view provides a plausible explanation of what occurred on this evening.
Mr Healey does not dissent from the psychiatrist's view of the factors operating at the time of your killing of Mr Lisinski. He also added the possibility of epileptic phenomena affecting your judgments. Mr Healey also expressed the view that the legacy of the psychosis and the ingestion of alcohol and higher than prescribed quantities of the Benzodiazepines may have resulted in an impairment of judgment where you perceived things being more challenging or upsetting than what they really were.
Indeed, Dr Barry-Walsh said that it was also plausible that you may have misinterpreted the situation in perceiving a sexual advance occurring. In any event, whatever the precise situation, I accept that the mechanism for your extraordinary aggression and violence was as described by the doctor.
In relation to the second incident you told Dr Barry-Walsh that at this point you were still experiencing voices and had the sense of confusion, rage and persecution, although this was still slowly waning. It appears that it was only after you were put into the Management Unit following this attack and you were given psychiatric assistance that your problems subsided. Your explanation to Mr Healey was that your knowledge of Ms McMahon's prior conviction for the sexual abuse of minors caused you, in your then disturbed mental state, to become agitated and to re-experience thoughts of the sexual abuse perpetrated upon you in childhood and even in later years.
Dr Barry-Walsh told the court that you still presented as a very damaged woman and your capacity to control and understand your emotions is limited to a large extent. You are not, however, any longer psychotic. Mr Healey described you as still being a psychologically damaged, vulnerable person subject to variable mood states who will need ongoing monitoring treatment.
I should add for completeness that you have a number of prior convictions, most of which involve relatively minor acts of dishonesty such as theft, possession of a drug of dependence namely heroin, loitering for the purposes of prostitution in a public place and causing wilful damage. About 10 years ago you were convicted of a number of offences of burglary and theft as well as two charges of unlawful assault, assault by kicking and cause injury intentionally. It was said that the acts of violence related to your resisting arrest after being apprehended stealing from a supermarket. On the face of it, the most serious conviction that you have is for conspiracy to commit armed robbery, in June 1992, for which you were sentenced to be imprisoned for 12 months with a minimum for four months before being eligible for parole. The background to this offence was said to have been your apprehension in a carpark waiting for a drug dealer where a sorn-off 0.22 rifle was located in the bushes nearby. I do not intend to go into further detail in relation to these prior convictions. They may be seen as generally reflective of your lifestyle and to be of minimal significance when compared with the offences for which you are now before this court.
In terms of your rehabilitation you apparently have the support of your mother and you have undertaken a number of programs in the prison. These included Relapse Prevention, Drug Awareness, Stress Management, a Beyond Violence program, and a certificate in Horticulture relating to the establishment of crops. You told Mr Healey that you accept that you will have to serve a considerable time in prison and are hopeful of using that time constructively. You are still relatively young and it is to be hoped that with appropriate counselling and assistance you will be able to rehabilitate yourself and re-establish your relationship with your daughter as you wish to do. You also told Mr Healey that you would very much like to study psychology, sociology and youth work and perhaps become involved in an Outreach program.
A number of letters were tendered from persons involved in the Sacred Heart Mission in St Kilda. Two of the correspondents described you in terms of being kind, gentle and intelligent and each recorded observing some deterioration in your mental state immediately prior to these offences. Mr David Binns, who has visited you in prison, confirms your desire to study social work with a view to helping people who have experienced your hardship. Ms Kerrie Godbold, the team leader of the Women's Open House Program of the Sacred Heart Mission had known you for some three years and described you as peaceable and friendly in co-operating with others. She spoke of you commencing the address the difficulties created by the lifestyle which exposed you to violence, homelessness, drug addiction and prostitution. During last year she visited you regularly in prison. She described you as willing to embrace a more positive lifestyle and working to regenerate supportive relationships within your family and friends. According to Ms Godbold, you experienced genuine regret for what she described as some of your more destructive choices.
On the basis of this material you have the desire, and hopefully the capacity, to ultimately rehabilitate yourself.
Insofar as the second offence is concerned, you are entitled to credit for your plea of guilty which was made at the committal proceedings in May 2000. Your plea has saved Ms McMahon from the trauma of giving evidence about this incident and may also be regarded as evidence of some remorse on your part.
This is a truly tragic case. Your childhood traumas of physical and sexual abuse, your life as a prostitute from a young age, accompanied as it was by assaults and drug addiction, have ultimately combined in the unleashing of extreme violence, causing death in one instance and serious injury in another. In passing sentence upon you, I take into account your mental state at the time of the commission of the offences, you deprived and traumatic background, and your determination to rehabilitation yourself.
Balancing as best I can the sentencing principles enunciated in the Sentencing Act, I have concluded that on the offence of murder, you should be sentenced to a term of 14 years' imprisonment and on the offence of intentionally causing serious injury you should be sentenced to be imprisoned for a term of five years. Because the offences are quite separate, a period of cumulation is appropriate. Consequently I order that a period of two years of the sentence of intentionally causing serious injury is to be served cumulatively upon the sentence for murder. This results in a total effective sentence of 16 years. In order to reflect the matters personal to you which I have set out, and in order to be as merciful as possible, I set a relatively low non-parole period of 11 years. Further, I declare that the period to be reckoned as already served under the sentence is 626 days inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration is made and its details.
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