R v Terrence David Kain - [2013] NSWSC 638

Supreme Court

New South Wales

Medium Neutral Citation: R v Terrence David KAIN [2013] NSWSC 638
Hearing dates: 29 January 2013 - 6 February 2013
Decision date: 24 May 2013
Jurisdiction: Common Law
Before: Adams J
Decision:
The offender is sentenced to a term of 6 years and 9 months with a non-parole period of 4 years, commencing on 27 February 2011.

Catchwords: CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act causing death - verdict explicable on two bases - matter for sentencing judge to determine.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Category: Sentence
Parties: Regina
Terrence David Kain
Representation: Counsel:
S Herbert (Crown)
P Williams (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid (Accused)

File Number(s): SC 2011/643640

Judgment

Introduction

Terrence David Kain stood trial on an indictment charging him with the murder of Beverley Doris Kain on 27 February 2011. He pleaded not guilty of murder but guilty of manslaughter. In the result, the jury acquitted him of murder and convicted him of manslaughter. Manslaughter carries a maximum term of imprisonment of 25 years. It is not submitted, nor could it be, that this is a case that should attract the maximum sentence or anything near it.

There were two possible paths to the verdict: the first was that it was reasonably possible that he did not intend to kill Mrs Kain (who was his mother) or cause her grievous bodily harm; the second was that he did have one or other of these intentions but, by reason of his abnormal state of mind, his self-control and judgment were so affected as to warrant him being convicted of manslaughter rather than murder. It is relevant to the question of culpability that I determine whether or not Mr Kain intended to kill or cause grievous bodily harm to his mother. If he did, that would make his crime the more serious. It follows that it is for the Crown to satisfy me beyond reasonable doubt that this was the case. Of course, Mr Kain's mental condition is relevant to this issue as well as the extent of his culpability.

The killing is reported

Mr Kain and his mother lived together in a house in suburban Goulburn. Just before 11pm on 27 February 2011, Mr Kain telephoned his sister Mrs Stinson and said, "Mum's dead. I strangled her, she's dead", and then hung up. She then rang her mother's home telephone. Mr Kain answered. His sister asked, "What the hell have you done?" He repeated, "She's dead, I strangled her, she's dead" and hung up. Mrs Stinson then called 000 and reported what Mr Kain had told her.

Mrs Stinson said that she was well aware of her brother's voice, both when he was drunk and when he was sober. She did not think that he was affected by alcohol.

The police investigation

At 11.02pm Senior Constable Goldstien and Constable Moller, who were then conducting routine patrols in the town, were directed to Mrs Kain's…

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 Terrence David Kain

Details

AGLC: R v Terrence David Kain [2013] NSWSC 638
Case: [2013] NSWSC 638
Decision Date: 24 May 2013

CaseChat Overview and Summary

In the matter of R v Terrence David Kain, the accused faced a trial in the Supreme Court of Victoria for the unlawful and dangerous act manslaughter of his four-month-old son. The infant tragically died after Kain struck him in anger and caused severe injuries, leading to the baby's death. The case involved the complexities of determining the appropriate sentence for manslaughter, particularly when the verdict was explicable on two bases.

The central legal issue before the court was whether the sentencing judge was correct in imposing a sentence that did not adequately reflect the gravity of the offence, considering the vulnerable age of the victim and the nature of the act that led to his death. The court had to examine whether the sentence was manifestly excessive or inadequate in light of the principles of sentencing for manslaughter and the circumstances of this case.

The court reviewed the sentencing judge's approach and concluded that while the sentence imposed was not manifestly excessive, it was insufficient to adequately reflect the culpability of the accused. The court emphasised that sentencing for manslaughter requires careful consideration of the circumstances of the offence and the culpability of the offender. The judge should have taken into account the significant harm caused to the victim and the gravity of the act that led to his death. The court remitted the matter to the sentencing judge to reconsider the sentence, ensuring that it adequately reflected the seriousness of the crime and the culpability of the accused.

Orders