Regina v KMB

[2003] NSWSC 862

CITATION:	REGINA v KMB [2003] NSWSC 862
HEARING DATE(S):	16/6/03, 17/6/03, 18/6/03, 19/6/03, 20/6/03, 23/6/03, 26/6/03, 27/6/03, 30/6/03, 1/7/03, 2/7/03, 3/7/03, 4/7/03
JUDGMENT DATE:	23 September 2003
JUDGMENT OF:	Bell J at 1
DECISION:	Sentenced to a term of six years imprisonment; That sentence will commence on 18 May 2003 and expire on 17 May 2009; Non-parole period of three years and six months specified; First date eligible for consideration of release on parole is 17 November 2006
CATCHWORDS:	Sentence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Alexander (1994) 78 A Crim R 141 R v McDonald (unreported) NSWCCA, 12 December 1995
PARTIES :	Regina KMB (Accused)
FILE NUMBER(S):	SC 70008/03
COUNSEL:	Peter Miller (Crown) Andrew Haesler (Accused)
SOLICITORS:	SE O'Connor Legal Aid Commission of NSW (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

TUESDAY 23 SEPTEMBER 2003

70008/03 REGINA v KMB

JUDGMENT

1. HER HONOUR: KMB was arraigned before me on 16 June 2003 on an indictment that charged her with the murder of her uncle, AB, at Lidcombe on 12 March 2002. She entered a plea of not guilty and stood her trial. On 4 July 2003, the jury returned a verdict finding her not guilty of murder but guilty of manslaughter.

2. It is my task to determine the facts that are relevant to the exercise of the sentencing discretion. The facts that I find must be consistent with the jury's verdict. Facts that aggravate the offence must be proved beyond reasonable doubt. Facts upon which the offender relies as mitigating her crime, need only be established upon the balance of probabilities.

3. I approach the sentencing of this offender upon an acceptance of the following facts: The deceased died at the family home at 4 Elimatta Street, Lidcombe on the afternoon of 12 March 2002, following an assault on him by the offender lasting something of the order of ten minutes. The assault involved the infliction of a large number of punches to the head and chest and a number of forceful kicks to the trunk. The deceased took no action to protect himself. He was a frail individual aged in his fifties. The offender is a tall and athletic woman who was aged 32 years.

4. The deceased was suffering from fronto-temporal dementia. This condition produces irreversible deterioration of brain function in the sufferer. At the time of his death, the deceased presented as a person having the mental capacity of a child. It will be necessary to return to the question of the offender's belief as to the extent of the deceased's disability.

5. In his youth, the deceased was conscripted into the Australian Army and served in Vietnam. Following his discharge he obtained employment with Suttons Motors. He maintained that employment for a period of about 20 years. He resigned in 1998. By this time his capacity to carry out relatively undemanding duties as a storeman was compromised.

6. The deceased lived with his father, a widower, at 6 Elimatta Street, Lidcombe. Following the death of his father the deceased was not able to live independently. The offender assumed responsibility for his care. She moved into the Elimatta Street premises with her son, E. Later she was joined by her two other children and her former defacto partner, RH.

7. The deceased had been a quiet, well liked individual, who was fastidious about his dress and general appearance. As his condition deteriorated, he showed a marked loss of interest in appearance. He became disinhibited. His sister-in-law, the offender's mother, had been surprised to find him urinating in the garden of her home on an occasion when he visited her in company with the offender and her family.

8. The deceased engaged in sexually inappropriate behaviour in the presence of the offender's four-year-old child in the period that immediately preceded the fatal assault.

9. At the time of his death, the deceased was suffering from severe coronary artery disease. Two of the three main coronary arteries were so thickened and narrowed as to be completely blocked. The remaining artery was almost completely blocked. The deceased was at risk of sudden death at any time by reason of this condition. A heart attack might have been brought on by any activity. He had suffered heart attacks in the days preceding his death, although the evidence did not suggest that he or the offender were aware of that fact.

10. Two issues were central at the trial: causation and provocation. Manslaughter was also left on the alternative basis of unlawful and dangerous act, in the event that the jury were not satisfied that the offender was possessed of the requisite intent to make her acts murder.

11. Evidence was led in the Crown case from neighbours Chris Yousif and Narine Yardemian concerning an incident that occurred on Monday 11 March 2002. Mr Yousif and Ms Yardemian each gave an account of seeing the deceased holding on to the front fence outside their premises. The offender was standing near him calling out "let go the f'ing fence, A, let go the f'ing fence". She punched the deceased causing him to fall to the ground. She was yelling out at him and calling him a child molester. As he lay on the ground she kicked him to the left side of his body. She then pulled or dragged him from the front fence into the home.

12. The Crown invited the jury to consider that the acts causing death may have included the assault on 11 March. However, principal reliance was placed by the Crown on the offender's admissions of a prolonged assault that took place in the laundry of the family home on the afternoon of 12 March.

13. The ambulance service and the police were called to the scene around 5pm on the afternoon of Tuesday 12 March. This followed a telephone call made to the emergency services by RH. The first police to attend the scenes were Constables Bottle and Burton. When Constable Bottle walked into the lounge room of the premises she saw the offender sitting in what she described a foetal position with the palms of her hands covering her face. She was crying.

As Constable Bottle entered the room the offender looked up saying, "I didn't mean it". She went on to say:

“I didn't mean it. I tried to do CPR the best I can. I ripped his shirt off and when he didn't wake up I threw water on him.”

14. Constable Bottle asked what time the incident had occurred and the offender replied, "I don't know". She said:

“I found him playing with himself and trying to pull G's pants down.”

Again the offender repeated "I didn't mean it".

15. She gave Constable Bottle an account that she had started hitting the deceased about the head and chest with her fists. She said that he had fallen in the laundry area of the home and that she had pulled him out to the sunroom where she had endeavoured to administer CPR.

16. The offender was interviewed by plain clothes Senior Constable Arnold and Constable King on two occasions. Each interview was video recorded and both were lengthy. The offender was co-operative throughout. She also participated in a video recorded re-enactment at her home. The account that she gave to the investigating Police and to a number of other persons including Dr Tork, who examined the children for possible signs of sexual abuse, was generally a consistent one.

17. Central to the offender’s account was that during the early afternoon of 12 March, she had walked into the sunroom and found the deceased masturbating within view of her four year old son G, and that he had been encouraging G to participate in some sexual misconduct. She picked up G and took him to another part of the house, and endeavoured to distract him for a period before she returned to confront her uncle.

18. After a period of ten minutes or so, the offender went back into the sunroom and challenged the deceased about his conduct. He admitted to sexually interfering with G. He appeared to show no remorse for his conduct.

19. In an interview with Senior Constable Arnold that commenced late in the evening of 12 March 2002, she said this:

“I just saw him sitting there and doing it and thinking to myself you disgusting pig, and feeling my anger getting angrier. I was getting angrier and angrier when he wouldn't answer me. When I asked him questions about it to try and get to the bottom of it, because I'd asked him a few times over the last 18 months to two years have you touched my boys, especially since Gregory bled, he's constantly said no to me. He's denied it. He's denied doing anything in front of them because I said to him don't you even sort of mention anything sexual in front of them because they're not - I haven't brought my kids up with that sort of environment.”

20. Doctor Cala conducted the postmortem examination of the deceased. He observed extensive bruising to the deceased's trunk and noted that there were 13 broken ribs. In Dr Cala's opinion, the combination of the existing heart disease and the broken ribs caused the death of the deceased. Most of the rib fractures that Dr Cala observed were recent, and I am satisfied beyond reasonable doubt that they were occasioned during the assault that took place on the afternoon of 12 March.

21. Three rib fractures on the left side of the chest were older than the others. Dr Cala estimated that these had occurred 24 to 72 hours prior to death. One of those fractures was associated with a laceration of the lung. Dr Cala observed inflammation at the site of the laceration. He thought that this injury had been occasioned approximately 24 to 48 hours prior to death.

22. The slightly older rib fractures on the left side of the body are consistent with having been occasioned during the assault that was observed by Mr Yousif and Ms Yardemian, however I am unable to conclude beyond reasonable doubt that this is so.

23. I sentence the offender upon the basis that the acts causing death were the punches and the kicks administered by her to the deceased in the laundry area of the home on the afternoon of 12 March 2002. At the time of that assault, I am satisfied that it was the offender's intention to inflict grievous bodily harm upon the deceased. The assaults significantly contributed to the death of the deceased. The offender's liability for what would otherwise be the murder of her uncle is reduced to manslaughter by reason of the fact that at the time she struck the deceased she was acting under provocation. A number of the answers that she gave during the course of her lengthy interviews with plain clothes Senior Constable Arnold were eloquent of her having lost her self control.

24. In her interviews with the Police, the offender described an incident that had occurred on the Saturday that preceded his death. This incident had made her suspicious that her uncle may be engaging in sexually inappropriate behaviour with the children. RH was living in a caravan that was parked outside the family home. During the afternoon the offender entered the caravan and saw that the deceased, who was wearing track suit pants, appeared to have an erection. Her young sons had been running in and out of the caravan. She challenged the deceased asking whether he had molested the children and he denied it. She said that she had accepted his denials.

25. A number of notes were tendered in evidence, Exhibit “J”, containing confessional statements apparently written by the deceased. A draft confession was among the notes. It was written by the offender. RH's fingerprint was found on one of the confessional statements. In her interviews, the offender gave no account of the circumstances in which these confessional notes came to be written. At the trial RH gave an implausible account of how it was that the deceased had come to write the notes. I reject that account.

26. I am satisfied beyond reasonable doubt that in the period prior to his death, the deceased was pressured by the offender to write a confession and that he made a number of attempts to do so. I am not able to say when this occurred, save to state that I am satisfied beyond reasonable doubt that the deceased was not physically capable of writing the confessions in the period following the fatal assault.

27. For at least 24 hours prior to the fatal assault, the offender was ruminating over concerns that the deceased was sexually interfering with her children. This is consistent with the evidence of Mr Yousif and Ms Yardemian as to the things that they heard the offender calling out on the afternoon of 11 March.

28. The absence of any account of how the confessional notes came to be written leads me to conclude that the offender was not completely frank in her accounts to the Police. However I am satisfied that the event that precipitated the fatal assault was the offender's discovery of the deceased masturbating in front of G. This is the account she gave to Constable Bottle at a time she was in a highly distressed and unguarded state. She has been consistent in her account in this respect. Notably she did not assert that she had lashed out at her uncle immediately. She was consistent in describing the quality of the deceased's response to her accusation as the trigger for her assault upon him.

29. Before I turn to a consideration of the aggravating and mitigating factors to which s 21A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) directs attention, and to the principles which apply in sentencing for this offence, it is appropriate to refer to the evidence that was led at the sentence hearing.

30. The offender is the eldest of three siblings. She grew up in Macquarie Fields, attending high school and completing year ten. She obtained her school certificate when she was aged around eighteen years. The family moved to Taree. She accompanied them and obtained employment as a driveway attendant at the local BP Service Station. Subsequently she moved to Sydney where she met and commenced a relationship with RH. She was aged 19 at the time. Their relationship has had its difficulties but they have remained close.

31. The offender and RH are the parents of three sons. Their first child, K, was born in December 1993. Following K's birth, the offender returned to her employment. While K was still an infant and when the offender was pregnant with her second child, RH suffered a serious injury to his back. The offender continued to work and to support the family until the birth of her second son, E. After E's birth in 1995, the family moved back to Taree. They commenced running a market garden.

32. In 1998, their youngest child G was born. The offender's mother had been staying in Sydney at the Elimatta Street premises looking after her father-in-law, (the offender's grandfather) and the deceased. Following the death of her grandfather, the offender moved to Sydney to take over the care of the deceased. She had a good relationship with the deceased and it was his preference that she look after him. I accept that at the time she took on this task, she was motivated by a sense of family responsibility.

33. In the months preceding his death, the deceased underwent a marked deterioration in his mental capacity. This was associated with an inability to attend to matters of personal hygiene. These circumstances no doubt contributed considerably to the pressures to which the offender was subject. In addition to looking after the children and the deceased, she provided on-going support for RH. The two had separated but he remained dependent upon her. His injury appears to have left him disabled to a significant degree.

34. The offender denied that the deceased was suffering from dementia. I do not find that she intentionally sought to downplay the extent of his incapacity. Ms Vella, a respite carer, was engaged to call to the family home weekly to look after the deceased for some hours. She is accustomed to looking after patients suffering from dementia. In her view, the deceased was intellectually handicapped but she did not consider that he exhibited the classic signs of dementia.

35. It seemed to me that the deceased was a person who may have been somewhat slow all his life. The early signs of dementia were not necessarily apparent. As his condition deteriorated, I accept the offender may not have understood how profound his difficulties were.

36. A theme that emerged in the course of the offender’s interviews with the Police was her view that the deceased was a lazy person who was able to do a good deal more than he let on, and who was able to distinguish right from wrong. These answers seem to me to betray a lack of insight and, perhaps interest, in her uncle's condition, but I accept that they were views that she held. Her lack of insight into, and associated lack of sympathy for, her uncle's condition appears to have contributed to the offender becoming impatient with him by March 2002.

37. The assault on the afternoon of 11 March was an unattractive episode, however since I am not satisfied that it significantly contributed to his death, I do not take it into account in sentencing her for his manslaughter. It has relevance in placing the events of 12 March in context and in my assessment of the submission put on her behalf, that she was a loving niece who was stung by the betrayal of her uncle to whom she had been devoted.

38. I find that the offender was, for the most part, a competent carer for the deceased but that towards the end she had become frustrated by his behaviour and that her conduct towards him exhibited some degree of callousness.

39. It was evident from the observations made by Constable Bottle and Burton that the offender was very much distressed by the realisation of what she had done. The Crown submitted that I should measure her remorse against the circumstance that she had fought the trial contending that her acts were not causative of his death. I do not accept that submission. From the outset the offender made very frank admissions concerning the extent and duration of her assault upon the deceased. She expressed her regret for what she had done to the Police and to others. I accept her remorse as genuine, and pursuant to s 21A(3)(i) of the Sentencing Procedure Act I take it into account in mitigation of sentence.

40. Dr Tork assessed the children. She noted that G was a very happy little boy who was co-operative throughout the interview. He was clean and well dressed. E was also a pleasant and co-operative child. Both G and E gave accounts of digital penetration by the deceased. K was also interviewed. He was a talkative young boy. He had observed his uncle behaving in a sexually disinhibited manner but he had not been the subject of any assault. All three children presented in the course of their interviews with the Police as apparently bright, happy and well cared for. They were attached to both their mother and their father.

41. At the date of the sentence hearing the children were being cared for by their paternal grandmother who was of the view that they should not be exposed to seeing their mother in a prison setting. The offender had only seen one of the children since she had been taken into custody, and then only on one occasion. Proceedings were then pending in the Children's Court in relation to the care of the children.

42. The hardship that the imprisonment of an offender may place on members of the family including young children, is not a circumstance, save in a case that is truly exceptional, that would justify the imposition of a sentence, other than one of full-time custody. Mr Haesler, who appeared on the offender's behalf, acknowledged that this was not such a case. He invited me to consider that the lack of contact with the children brought about by the stance that the grandmother takes, will make the experience of imprisonment harsher for this offender than for others. I do not know what orders may be made by the Children's Court with respect to access to the children. I do not consider it appropriate to take the lack of contact with the children into account in this way.

43. I do have regard to the circumstance that the offender is the mother of three young children in my assessment of whether there exist special circumstances to justify a departure from the statutory proportion as between the sentence and the non-parole period. The offender is a person of good character and she is entitled to mitigation of her sentence on that account. She has made out a positive case in this respect. She has demonstrated a capacity to work and to support her family. She is a responsible and caring mother whose children are a credit to her.

44. I have had the benefit of a report prepared by Anita Duffy, a psychologist. Ms Duffy found the offender's presentation at interview and the results of objective personality testing to reveal an individual who is normally extremely conscientious. The offender did not demonstrate features of an anti-social or aggressive personality type. I accept these findings.

45. Consistent with Ms Duffy's assessment is a report prepared by a member of staff at the Mulawa Womens Prison. The offender is enrolled in courses of instruction in the operation of forklift equipment and horticulture. She is a compliant prisoner who works well when unsupervised. Her attitude to rehabilitation is described as being excellent. I accept that her prospects of rehabilitation are very good. I do not consider that the need exists for personal deterrence. This is not a case in which it is necessary to be concerned for the protection of society.

46. The offender was arrested and charged on 21 March 2002. She was released on bail on 6 June 2002. Following verdict she was returned to custody. I propose to fix the date for commencement of the sentence as 18 May 2003. This will give the offender full credit for the period of her pre-sentence custody.

47. I was referred to a number of cases in the written submissions prepared by the Crown Prosecutor. I have had regard to each of them. In particular, I have taken into account the judgment of Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141, concerning the principles to be taken into account in sentencing in provocation manslaughter cases.

48. The Crown invited me to find that the degree of provocation was of a relatively low order because the offender was aware that the deceased was a person with the intellectual capacity of a child. I do not accept this submission. I am satisfied that the offender knew that the deceased was slow, but I accept that she thought his incapacity did not affect his ability to know the difference between right and wrong. I consider that the provocation was significant because the offender believed that her uncle was capable of making a decision to obtain sexual satisfaction by masturbating in front of G, and that he knew that he should not molest members of his family in this fashion.

49. The principles in Alexander to which I have referred also require consideration of the degree of violence or aggression displayed by the offender. Mr Haesler placed emphasis on the fact that the violence was not accompanied by an intention to kill. He invited me to have regard to the deceased's heart condition in support of a contention that no great amount of force might have brought about the death of the deceased. This submission seemed to me to overlook the evidence of the extensive bruising to the deceased's trunk and the large number of rib fractures. It also overlooks the offender's own admissions. This was a sustained and vicious assault.

50. After making appropriate allowance for the significant provocation that led to the offender's loss of self control, this remains an objectively serious instance of manslaughter.

51. I return to the considerations to which s 21A of the Sentencing Procedure Act directs attention. The principle features of aggravation on which the Crown relied, apart from the actual use of violence, were the matters set out in sub-sections 2(k) and (l). The offender was in a position of trust with respect to the deceased, she was his carer. He was vulnerable by reason of his disability. These two factors are allied in the circumstances of this case. I accept the Crown's submissions and I take these matters into account.

52. The Crown accepted that there are present in this case a large number of features that may operate to mitigate the sentence, including those referred to in sub-s 3(b), (c), (e), (f), (g), (h) and (i). I take each of these considerations into account in mitigation of sentence. They are matters to which I have already referred in the course of these reasons.

53. The maximum sentence for the crime of manslaughter is 25 years. The Crown supplied me with statistics prepared by the Judicial Commission of New South Wales, showing the pattern of sentencing of offenders for the offence of manslaughter. I have reviewed those statistics. I am mindful of the notorious difficulty in approaching the sentencing of an offender for manslaughter by reference to the statistical pattern. The circumstances giving rise to offences of manslaughter are apt to vary widely. It is necessary that the sentence that I impose reflect that the crime of manslaughter involves the felonious taking of a human life. The law views felonious homicide in all cases as a most serious crime: R v McDonald (unreported) NSWCCA, 12 December 1995.

54. This will be the first time that the offender will serve a sentence of imprisonment. She is a person of good character and she is the mother of three young children. I am persuaded that these circumstances in combination are special circumstances within the meaning of s 44 (2) of the Sentencing Procedure Act.

55. KMB, for the manslaughter of AB I sentence you to a term of six years imprisonment. That sentence will commence on 18 May 2003. It will expire on 17 May 2009. I specify a non-parole period of three years and six months. The first date on which you will be eligible for consideration of release on parole is 17 November 2006.

56. I note that in the course of these reasons I have referred by name to the children in these matters and to matters tending to reveal that the children have been the victims of sexual offences. There should be no publication of any information that would tend to identify the children as victims of a sexual offence.

COURT ADJOURNED

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Last Modified: 09/26/2003