R v Rita Rose Kirkwood [2000] NSWSC 184

New South Wales Supreme Court

CITATION : R v Rita Rose Kirkwood [2000] NSWSC 184 FILE NUMBER(S) : SC 70098/98 HEARING DATE(S) : 08/11/99, 24/02/00 JUDGMENT DATE : 3 March 2000

PARTIES : Regina v Rita Rose Kirkwood JUDGMENT OF : Bell J

COUNSEL : C: Mr P Barnett A: Mr M Austin SOLICITORS : C: Director of Public Prosecutions A: Daniel Smyth & Co, Maitland CATCHWORDS : CRIMINAL LAW AND PROCEDURE - sentencing - manslaughter - impulsive LEGISLATION CITED : Sentencing Act 1989, s5 R v Scognamiglio (1991) 56 A Crim R 81 R v Letteri (unrep, NSWCCA, 18/3/92) R v Wright (unrep, NSWCCA, 28/2/97) CASES CITED : R v Vachalec (1981) 1 NSWLR 351 R v Edwards (1996) 90 A Crim R 510 R v Fernando (1992) 76 A Crim R 58 R v MacDonald (unrep, NSWCCA, 12/12/95) DECISION : See para 15

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

FRIDAY, 3 MARCH 2000 70078/98 - REGINA v RITA ROSE KIRKWOOD

SENTENCE 1 HER HONOUR: On 3rd November 1999, the prisoner, Rita Rose Kirkwood, was arraigned before me on an indictment charging her with the murder of Edward Szponder on 29th June 1998 at Rutherford. To that charge she pleaded that she was not guilty of murder but guilty of manslaughter. The Crown accepted that plea in full discharge of the indictment. 2 The prisoner and the deceased had known one another for a period of between four and five years. Not long after meeting they commenced a sexual relationship. They maintained separate homes but the deceased regularly stayed at the prisoner's house. Their relationship was a volatile one. The prisoner's sister, Elizabeth Farley, told the police that the pair tended to fight and argue with each other over petty things. Both were accustomed to drinking substantial quantities of alcohol. The arguments were associated with the occasions when the two were drinking. Ms Farley had not, herself, observed physical violence between the two. However, six months prior to the subject events, the prisoner and the deceased had called to Ms Farley's home. The prisoner had two black eyes. In the presence of the deceased, the prisoner said, "See what Eddie did?". The deceased said "I can't remember, I can't remember". A month or so later, it appears that there was an incident in which the deceased broke some windows at the prisoner's home. The police were called on this occasion. Ms Farley understood that the deceased had subsequently been ordered by the court not to approach the prisoner's home. 3 Despite their troubled history, the prisoner and the deceased maintained their relationship. The deceased was present at the prisoner's home at 9 Endeavour Street, Rutherford, on 29th June 1998 with her consent. He had spent the previous night there. He had suffered an injury to his lower right leg and heel. His leg was in plaster and he was using a surgical shoe and crutches to get around. 4 In the late afternoon of 29th June, the prisoner and the deceased consumed around one dozen stubbies of beer between the two of them. A little before 10.00pm, the prisoner left the house by taxi to go to the Maitland Leagues Club where she picked up her son, Gary, and Ms Farley. 5 The three returned to the Endeavour Street premises. On arrival, the prisoner took three stubbies of beer from the refrigerator. She sat at the kitchen table with Gary and her sister. The deceased came into the kitchen from the bedroom. It appears that he was in an argumentative frame of mind. He accused the prisoner of spending all his money. She believed that he was angry because there was no beer left for him. He was verbally abusive calling the prisoner a "slut" and the like. Gary told him not to abuse his mother and he made to strike at the deceased. The blow did not connect. The deceased responded by picking up a stool which he threw at the prisoner. The stool is depicted in photograph 18 which forms part of Ex A. It is of metal construction. It did not hit the prisoner. She picked it up and threw it back at the deceased. It struck the deceased on the plaster on his leg. He crossed the room and removed a knife some 12" in length from a drawer near the sink. He held the knife in his right hand. The prisoner said, "Put the knife down and don't be stupid. I can play the same game". She walked over to the deceased and took the knife from him. She took hold of the knife by the blade causing a minor injury to her hand. The prisoner was at this time standing in front of the deceased. She poked the knife at the chest of the deceased. In so doing, she stabbed him. He sustained a single wound to the chest. The knife passed between the third and fourth ribs through the upper lobe of his lung and into his pericardium. The depth of the wound track was 15cm. 6 Ms Farley, who was present throughout the incident, did not see any obvious stabbing movement. She saw the deceased walk backwards into the lounge room holding his stomach. Gary picked up the knife and said "Look mum there's blood on it". Ms Farley went into the lounge room and found the deceased lying on the floor. Gary attempted to resuscitate the deceased. The prisoner came into the lounge room and felt the deceased's face saying, "Don't be silly, come on, talk to me". Ms Farley said to her, "Rita, he's dead, honestly he's dead". The accused went into the kitchen. She was crying and saying, "I'm sorry". 7 The prisoner is a part-Aboriginal woman aged sixty-three years. She had little formal schooling. Her father was a bullock driver and timber cutter. The family led an itinerant life. They did not have a permanent home but travelled with the father camping out. The life was a rough one but the prisoner's parents were loving and she reports fond memories of her childhood. 8 In 1954, the prisoner married Geoff Fletcher. The couple had seven children. The surviving children range in age from 28 to 45 years. In 1972, one of the prisoner's sons, a child age 4, died tragically in a car accident. Another of her sons, Stanley, was severely injured in that accident. In the same year, the prisoner's mother died. The combination of these losses led to the prisoner's admission to a psychiatric hospital for six months in 1972. 9 The prisoner's marriage broke up in 1975. She and her husband had maintained their relationship for a number of years for the sake of the children. One of the pressures contributing to the strain on the relationship was the prisoner's dependence on alcohol. She had commenced drinking alcohol in a regular way when aged 20. It has been a problem throughout her adult life. 10 Following the marriage break-up, the prisoner formed a de facto relationship with a man named Eric Kirkwood. Her son, Gary, was the product of this union. In 1984, Gary was injured in a motor vehicle accident. He sustained brain damage and developed epilepsy following the accident. Gary is now aged 24. He lives with the prisoner. 11 In 1989, the prisoner's son, Stanley, died. It appears that his early death was the result of the significant injuries he had suffered in the 1972 motor vehicle accident. 12 Eric Kirkwood was apparently a loving partner and the relationship was a happy one. In the early 1990's, Mr Kirkwood developed cancer of the bladder. Ultimately, he came to require full-time nursing care and he was placed in a nursing home. The prisoner visited him daily until his death in 1994. 13 The death of Mr Kirkwood left the prisoner feeling lonely and distressed. In 1995, she met the deceased at a club. They commenced their sexual relationship shortly thereafter. The deceased came to spend more and more time at the prisoner's home. This was not entirely welcome. The prisoner was worried that her social security entitlement might be adversely affected should she be seen to be living with the deceased. She tried to discuss these concerns with him and to encourage him to spend a few days at a time at his own home. He would return to the prisoner's home during the night when affected by alcohol and start banging loudly on the door. 14 Neither Geoff Fletcher nor Eric Kirkwood are described as having been heavy drinkers. Although the prisoner had a problem with alcohol dependence throughout these years, her domestic life appears to have been a settled one. The pattern changed during her relationship with the deceased. He too was a heavy drinker. Together they might consume two casks of wine and a substantial quantity of beer in a session. They would drink whenever they had the money. The deceased was described by the prisoner as a nice man when sober. When he was drunk it would seem that he became verbally and emotionally abusive. There were episodes of physical violence. When the deceased hit the prisoner she would hit back. Ms Barbara Aldrich, psychologist, assessed the prisoner and prepared a report dated 30th November 1999 which I found helpful. Ms Aldrich said this: "Rita reports that Eddy was verbally and emotionally abusive of her and that their relationship often degenerated into violence on both sides. She says that he left her 'all nervy' and distressed with his accusations of infidelity and his verbal abuse. She said several times she hit him because he abused her. She says she has never hit anyone else and I saw no evidence that she was a vicious, aggressive or spiteful woman." (Ex 2 report 30/11/99 p7) 15 I accept that the prisoner is not a woman prone to violence. Ms Aldrich described the prisoner as presenting as a likeable and friendly woman who appeared to be of borderline to mildly intellectually disabled. She recommended that the prisoner be assessed by a neuropsychologist to ascertain the degree, if any, of cognitive impairment. The sentence proceedings were adjourned to enable this to be done. 16 The prisoner was assessed by Ms Hendy, consultant neuropsychologist. Ms Hendy noted that the prisoner presented as a friendly and likeable woman who was cooperative throughout the assessment. She observed that the prisoner was a poor historian who had great difficulty explaining herself. Her descriptions of events were very concrete and filled with irrelevant detail and it was difficult to extract salient points from her. The assessment established that the prisoner functions at the upper end of the mildly intellectually impaired range. Functionally, she is illiterate. Her mathematical skills were equally rudimentary. Ms Hendy expressed this opinion which I accept: "Mrs Kirkwood is a woman of naturally limited intellectual abilities who is now showing some subtle features of changes to her abilities brought about by prolonged alcohol abuse. I do not think that these would be the explanation for the events that occurred in 1998. It is probably more the case that Mrs Kirkwood has been all her life dependent on others to help her get by in the world. She had neither the literacy skills nor the intellectual abilities to cope with any but the most basic activities of daily living. From her history it appears that she may have become dependent on having a man around who could manage these things for her and in return she provided domestic support." (Ex 5 report 1/2/00 p5) 17 Mr Austin, who appeared on behalf of the prisoner, invited me to impose a non-custodial sentence in this case. It was his submission that the objective circumstances of the offence place it towards the lower end of the continuum of seriousness for manslaughter offences involving the use of a knife. The incident was precipitated by the deceased's abusive behaviour towards the prisoner including the throwing of the metal stool at her. It was the deceased who took the knife from the drawer and commenced to wave it about in the context of addressing abuse and recriminations to the prisoner. The prisoner's action in taking the knife from him and poking it at him was an impulsive one. 18 The Crown accepted the plea upon the basis that the wielding of the knife was an unlawful and dangerous act. 19 In addition, Mr Austin pointed to a number of subjective features which, in combination, he submitted made this case exceptional such as to justify the course which he urged. He placed reliance on (i) the prisoner's intellectual limitations, (ii) her medical problems, (iii) her role as the carer for her son Gary, (iv) her age and generally creditable life, (v) her plea and (vi) her Aboriginality. It is appropriate that I deal with each of these considerations. 20 The prisoner suffers from an intellectual handicap. I accept that she is at the upper end of the mildly intellectually impaired range. I consider that this feature operates to significantly mitigate her culpability for the offence. I propose to give less weight to considerations of general deterrence than might otherwise be appropriate for the reasons that were explained in R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, NSWCCA, 18 March 1992); and R v Wright (unreported, NSWCCA, 28 February 1997). 21 The prisoner suffers from a number of health problems. Reports prepared by Dr Singh Ubeja and Dr Chahl were tendered on her behalf. The prisoner has been a patient at the Greenhills Medical Practice at which Dr Ubeja has had rooms for the past eighteen years. She has been attending Dr Ubeja for eight years. He notes that she suffers from chronic lower back pain. This is due to a prolapsed lumbar disc causing lateral canal stenosis at L4/5. She also suffers severe right-sided sciatica. She has gout which is aggravated by her failure to take medication and her alcohol consumption. She has been a smoker for many years and now has chronic obstructive airways disease. She has diffused degenerative osteoarthritis. This mainly involves her knee and hip. It is of such severity that, at times, she finds it difficult to move and to carry out ordinary activities. 22 Dr Chahl's report of 16th December 1999 serves to underline the problems the prisoner has had associated with the osteoarthritic condition. On 24th September 1999, when Dr Chahl saw the prisoner, she presented with pain and swelling of the right knee. An x-ray was ordered and she was placed on Naprosyn. The x-ray confirmed a large effusion on the knee. X-rays also showed enlargement of the heart. By 4th November 1999, the knee showed signs of improvement and the prisoner was able to walk without the aid of crutches. 23 Dr Ubeja reports that the prisoner has been negligent as to her health and that she has tended not to be compliant with treatment regimes. Dr Chahl observes that the problems associated with the discovery of the enlargement of the prisoner's heart were not addressed in consultation with him. She does not appear to have returned for treatment since 4th November 1999. The failure to follow up medical treatment as advised may perhaps be explained by the prisoner's limitations. She has also been prone to anxiety following her arrest with respect to this matter. She was placed on antidepressants by Dr Ubeja in mid-1998 at a time when he observed her to be extremely distressed over this pending court case. 24 The significance of the prisoner's health problems to the exercise of my discretion with respect to sentence is as explained by the Court in R v Vachalec (1981) 1 NSWLR 351. At p 353, the Court stated: "It is obvious that imprisonment will always impose physical and emotional hardships and deprivation upon the person imprisoned. But there can be cases where that hardship and deprivation would be particularly aggravated by matters subjective to the prisoner and that is a proper consideration to be taken into account by a sentencing judge." 25 I consider that, having regard to this prisoner's age and the constellation of health problems, particularly her severe osteoarthritis, means that imprisonment will inevitably fall more harshly on her than it would on others. This is a proper matter for me to take into account and I propose to do so. 26 I turn now to the question of the prisoner's role as the carer for her handicapped son, Gary. The evidence touching on this topic is found in the pre-sentence report of Mr Haggerty of the Maitland Probation and Parole Service and in Ms Aldrich's report. Gary sustained some degree of brain damage in consequence of the 1984 car accident. This has left him developmentally delayed. He also suffers from epileptic fits. The prisoner told Ms Aldrich that Gary is unable to function independently in the community. There is no other evidence as to the extent of Gary's difficulties or the impact that his mother's imprisonment might be expected to have on him. On the material available, I accept that it will cause hardship. However, I do not consider that the circumstances of this case are so highly exceptional as to permit me to refrain from imposing a custodial sentence on this account; R v Edwards (1996) 90 A Crim R 510. 27 Both Ms Aldrich and Ms Hendy express concerns that the prisoner presents a risk of self-harm in the event of a sentence of imprisonment. Ms Aldrich deals perceptively with this in paragraph 5 of page 6 of her report. I accept what she says in this regard. Again, I do not consider that I can depart from the imposition of a custodial sentence in consequence of this consideration. However, it is a matter which I propose to take into account in the same way as the matters I have already noted concerning her poor physical health. 28 The prisoner has a minor criminal record disclosing drink driving offences, consistent with her admitted long-standing alcohol problems, and one minor offence of dishonesty committed almost thirty years ago in respect of which she was fined $20. I approach this matter upon the basis that she has no relevant criminal history. She is a woman of sixty-three who has given birth to eight children. Mr Haggerty reports that she is described as having been a good mother and a caring person. Ms Aldrich's report reinforces that view. I accept it. Despite her intellectual limitations and long-standing addiction to alcohol, she has managed to raise her children well and to provide ongoing support for Gary. She is entitled to credit for this. 29 She is also entitled to credit for her plea of guilty. 30 I was informed by Mr Austin that the prisoner is part-Aboriginal. The Crown conceded that to be the case. There was no evidence going to this aspect. I do not see that the considerations with which Wood J was concerned in R v Fernando (1992) 76 A Crim R 58 have application in the circumstances of this case. 31 I have given close consideration to the submission that I impose a non-custodial sentence. The fact that it was the deceased who initiated the tragic events of this evening by his abusive behaviour, in combination with the various subjective matters to which I have referred, favour a significant measure of leniency in this case. However, I am conscious of the observations of the Court in R v MacDonald (unreported, NSWCCA, 12 December 1995). I bear in mind that the respondent to the appeal in that case was described by a psychiatrist as a person with limited intellectual capacity and as being of dull intelligence. The Court there observed: "In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. The protection of human life and certainly safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system." 32 It does not seem to me that this case falls within the exceptional class of case in which a non-custodial sentence is appropriate upon a conviction for manslaughter. 33 The sentence which I propose reflects the strong subjective circumstances of this case and the fact that the prisoner was reacting impulsively to a stressful situation created by the deceased. 34 The Crown Prosecutor submitted that this was a case in which I would find special circumstances within the meaning of s 5(2) of the Sentencing Act 1989. I consider that the prisoner's intellectual and health difficulties taken together with the fact that at sixty-three she will for the first time be serving a sentence of imprisonment constitute special circumstances for the purposes of s 5(2). I propose to impose an additional term that exceeds the minimum term by more than one-third. 35 Rita Rose Kirkwood, I sentence you to a minimum term of 12 months imprisonment. That sentence will date from today and will expire on 2nd March 2001. I specify an additional term of 18 months which will commence on 3rd March 2001 and expire on 2nd September 2002. **********