Regina v KMB - [2005] NSWCCA 185

CITATION:
Regina v KMB [2005] NSWCCA 185

HEARING DATE(S): 6 May 2005

JUDGMENT DATE:

6 May 2005

JUDGMENT OF:
Grove J at 1; Hulme J at 31; Simpson J at 32

DECISION:
APPEAL DISMISSED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - MANSLAUGHTER - SENTENCE - VICTIM SUFFERING DEMENTIA IN CARE OF OFFENDER WHO WAS HIS NIECE - INAPPROPRIATE SEXUAL BEHAVIOUR BY VICTIM IN PRESENCE OF CHILDREN - OFFENDER'S BELIEF THAT CHILDREN MAY HAVE BEEN MOLESTED - VULNERABILITY OF VICTIM RELEVANT TO ASSESSING LEVEL OF VIOLENCE ON PART OF OFFENDER - NO ERROR OF PRINCIPLE BY SENTENCING JUDGE - ASSESSMENT WITHIN RANGE OF DISCRETION

CASES CITED:
Pearce v The Queen 1998 194 CLR 610
R v Alexander 1995 78 A Crim R 141
R v Blacklidge, unreported, NSWCCA 12 Dec 1995
Ryan v The Queen 2001 206 CLR 267

PARTIES:
Regina v KMB

FILE NUMBER(S):
CCA 2005/1

COUNSEL:
D. Frearson, SC (Crown)
T.D. Spears (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
Gregory P. Elks (Applicant)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70008/03

LOWER COURT JUDICIAL OFFICER:
Bell J

2005/1
GROVE J
HULME J
SIMPSON J

6 May 2005

REGINA v KMB

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Bell J in the Supreme Court. The applicant was indicted on a charge of murder and upon her trial was found by the jury not guilty of murder but guilty of manslaughter. Her Honour imposed a sentence of six years imprisonment with a non parole period of three and half years.

2 The applicant was the victim’s niece. She was described as a tall and athletic woman of thirty two years, he as a frail man in his fifties. Throughout his life he had been described as “slow” but by the time of his death he presented with the mental capacity of a child. He had lived with his father who acted as his carer but upon his father’s death he could not live independently and the applicant assumed responsibility for his care. Initially he moved into a house where she lived with one of her sons. The household later expanded when they were joined by her other two children and her former de facto husband.

3 The victim was suffering from fronto-temporal dementia. He had descended into that state over years. Earlier in life he had been conscripted and served in the conflict in Vietnam. After discharge he worked as a storeman for a motor company for about twenty years but by 1998 he was unable to carry out the relatively undemanding duties required of him.

4 Previously he had been a quiet well liked individual, who was fastidious about his dress and general appearance. This deteriorated and, as well, he became disinhibited. It was inappropriate behaviour, namely masturbating in the presence of an infant son of the applicant, which caused her to lose control and beat and kick him, thus bringing about his death. Post mortem examination revealed that the…

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 Regina v KMB

Details

AGLC: Regina v KMB [2005] NSWCCA 185
Case: [2005] NSWCCA 185
Decision Date: 6 May 2005

CaseChat Overview and Summary

Regina v KMB involved a sentencing hearing for KMB, who was convicted of manslaughter in relation to the death of her uncle. The uncle had dementia and was under the care of KMB. The case was heard in the Court of Criminal Appeal. The primary issue before the court was whether the sentencing judge erred in principle by considering the vulnerability of the victim in assessing the level of violence involved in the offence. KMB argued that the sentencing judge had placed undue weight on the victim's vulnerability, particularly in light of the inappropriate sexual behaviour exhibited by the victim in the presence of children, which led KMB to believe that the children may have been molested.

The court examined the sentencing principles relevant to assessing the level of violence in the context of the offender's perception of the victim's vulnerability. The court noted that the sentencing judge had appropriately considered the totality of the circumstances, including the victim's dementia and the inappropriate sexual behaviour observed by KMB. The court found that the sentencing judge had not erred in principle by taking into account the vulnerability of the victim in assessing the level of violence. The court held that the sentencing judge's assessment was within the range of discretion and appropriately balanced the relevant factors in arriving at the sentence.

As a result of the court's findings, the appeal was dismissed. The sentence imposed by the sentencing judge was affirmed as appropriate and within the proper exercise of judicial discretion. The court emphasised the importance of considering the totality of the circumstances in sentencing, including the vulnerability of the victim, even in cases where the offender's perception of that vulnerability may have been influenced by other factors.

Orders