R v Timbreza

[2012] NSWDC 142

District Court

New South Wales

Medium Neutral Citation:	R v Timbreza [2012] NSWDC 142
Hearing dates:	17 May 2012
Decision date:	17 May 2012
Before:	Berman SC DCJ
Decision:	Convicted and sentenced to overall term of three years with an effective non parole period of eighteen months.
Catchwords:	CRIMINAL LAW - Sentence - Common assault - Aggravated indecent assault - Vulnerable victim - Physical disability.
Category:	Sentence
Parties:	The Crown Elma Peralta Timbreza
Representation:	Ms G O'Rourke - The Crown Mr R Keller - The offender Director of Public Prosecutions Ariana Defence Lawyers - The Offender
File Number(s):	2010/00348825

SENTENCE

1. HIS HONOUR: All of us are going to get older and some of us will become elderly to the stage where we need to be cared for by others. To care for a frail ninety-one year old man in a proper way necessarily involves indignities but the behaviour of Elma Timbreza, who appears for sentence today, was designed to heap further indignities upon an unfortunate and highly vulnerable elderly man in her care and to make matters worse she appears to have done this out of pure malice.

1. She has pleaded guilty to eight offences of aggravated indecent assault and four of common assault. The circumstance of aggravation relied on by the Crown in each case relates to the victim's physical disability.

1. Mr John Cummins has been living at the Gertrude Abbott Nursing Home in Surrey Hills since 2006. At the time of these offences he was ninety-one years of age suffering from dementia and regarded as a high care resident. That means that he needs assistance from nursing home staff with most daily tasks including washing, dressing, going to the toilet and eating. Those sorts of things are the necessary indignities I spoke about at the beginning of these remarks on sentence. Part of his problem involves a physical impairment to his left leg which means that he cannot support his own weight or move around unassisted. He cannot even straighten that leg. His knee is permanently bent up at an angle.

1. Employed at the nursing home was the Offender. She worked as an assistant in nursing. She had had that position since 2003. She was the primary carer of Mr Cummins, assisting him with all essential amenities.

1. For reasons that are difficult, if not impossible, to understand the Offender took it upon herself to behave in a disgraceful way towards Mr Cummins.

1. I will describe the offences themselves in a little while but I first want to make this point. In some parts of the evidence put before me there are suggestions that Ms Timbreza was responding to some provocation offered to her by Mr Cummins. It is accepted by Mr Keller who appears on the Offender's behalf that proof of provocation is a mitigating circumstance with the burden lying upon him. It is further accepted that he cannot meet that burden and so I should sentence his client on the basis that no provocation was offered.

1. Sometime…