New South Wales Court of Criminal Appeal 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 Pearce v The Queen 1998 194 CLR 610 R v Alexander 1995 78 A Crim R 141 CASES CITED: 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 D. Frearson, SC (Crown) COUNSEL: T.D. Spears (Applicant) S. Kavanagh (DPP) SOLICITORS: Gregory P. Elks (Applicant) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 70008/03 LOWER COURT JUDICIAL OFFICER: Bell J IN THE COURT OF CRIMINAL APPEAL 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 victim had severe blockages of his coronary arteries and, for those reasons, was at risk of sudden death. 5 In interviews with police the applicant was candid about the extent of her attack. At various times she conceded that she had punched or slapped the deceased twenty to thirty times, and that she had elbowed him and kicked him. These admissions were corroborated by the findings of the pathologist who observed extensive bruising to the trunk and noted some thirteen broken ribs. Her Honour found that the majority of these fractures, most of which were recent, were occasioned during the fatal assault. This took place on the afternoon of 12 March. The applicant had also assaulted the deceased on the previous day and I will defer any description of that event until dealing with a ground which is explicitly focussed upon it. 6 Her Honour noted that at the trial issues were raised concerning causation and provocation. 7 Her Honour found for the purpose of sentence that the acts causing death were the punches and kicks administered on the afternoon of 12 March 2002; that at the time of that assault it was the applicant's intention to inflict grievous bodily harm and that those assaults significantly contributed to the death of the deceased and that her liability for what otherwise would be murder was reduced to manslaughter by reason of the fact that she was acting under provocation at the relevant time. 8 The first ground relied upon by the applicant asserts that her Honour erred in failing to adequately take into account the pre existing medical condition of the victim in assessing the culpability of the applicant. 9 The submission by the applicant is that the pre existing heart condition is relevant to the assessment of the applicant's culpability in that there is a need to disentangle the special features of the victim from the conduct of the offender in order to be able to properly assess her objective culpability. 10 It is submitted that there was no suggestion that the offender was aware of the particular vulnerability of the victim. In the sense that she did not have diagnostic information that would appear to be true, but the material overwhelmingly demonstrated that the applicant was aware that he was a person frail, and in need of care. 11 It is not in issue that one relevant consideration in assessing the level of responsibility of an offender facing sentence for manslaughter rather than murder, by reason of provocation, is the degree of violence or aggression displayed: R v Alexander 1995 78 A Crim R 141. 12 There is no challenge to her Honour's finding that the beating administered by the applicant caused the death of the deceased and at the time it was administered she intended to cause him grievous bodily harm. That intention is to be distinguished from an intention specifically to kill. Those ingredients as found would constitute the crime of murder but for the provocation. 13 The significant element is that it was the acts of the applicant which caused the death. The issue now sought to be ventilated was raised by counsel who appeared for the applicant at trial (and who did not appear on the appeal), who submitted to her Honour: "The Court also has to recognize that there are some people who are more vulnerable than others and an assault which may not of itself kill, precipitated the death in this particular instance, that is the nature and ferocity of the assault would not in itself have killed, when he could have died at any time because of his severe cardiac illness". 14 Her Honour sought clarification of this submission and the response was: "I only put it in this way, as I understand the evidence of Dr Cala (the pathologist) there is a very good chance that (if) he did not have the condition, the assault, severe as it was, would not have occasioned his death". 15 Her Honour repeated that it was her intended finding that when the applicant assaulted the victim it was her intention to do grievous bodily harm and counsel went on to clarify his further submission in these terms: "Nevertheless, the beating itself was not ordinarily what caused the death, but for the – and that's the only factor we ask the Court to recognize. That's implicit in the way the Crown put the case, she did not intend for him to die". 16 As her Honour then said, and as she found, the applicant did not harbour an intention to kill. 17 No authority is cited for the proposition now advanced in the terms which I have mentioned. I accept that the degree of violence must be assessed but it seems to me that that is the relevant matter to be taken into account. Of course it can be contemplated that a person who has an unappreciated underlying vulnerability may die as a result of the application of less violence than a more robust person but what needs to be assessed is the level of violence which led to the death. 18 The flaw in the applicant's argument can be exposed by analogy. Assume two hypothetical victims with identically vulnerable "eggshell" skull defects. One dies as a result of a blow administered by an offender striking with a book, the other as a result of striking by an offender with a sledgehammer. It is the contrasting levels of violence which discriminate the culpabilities of the offenders, the book wielder (on the hypothetical bare circumstance) obviously being less so than the hammer wielder. The underlying condition of the victim, the same in each case, is irrelevant beyond the fact, of course, that the blow caused death. 19 In the present case her Honour's approach to the assessment of the level of culpability of the actions of the applicant was correct and her conclusions entirely justified by the evidence. This ground should not be sustained. 20 Ground 2 asserted that her Honour erred in giving undue weight to the incident on 11 March in evaluating the relationship between the applicant and the victim. 21 The description of the incident of the day previous to the fatal assault came from neighbours who gave an account of seeing the victim holding to the front fence outside the premises while the applicant was standing near him calling out to him to "let go the fucking fence" and she was observed to punch him causing him to fall to the ground. She kicked him whilst he was on the ground and then dragged him from the fence into the house. She also called him a child molester. 22 Her Honour's reference to this incident was in these terms: "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 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. 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". 23 It is not suggested that her Honour, contrary to what she said, took the incident into account in the sentence for manslaughter. That it was relevant to assessing the weight of a submission made concerning a characterization of the applicant as up to the time of death, a caring, loving and devoted niece, was entirely appropriate. Her Honour made no error in taking the matter into account in the way that she indicated. 24 The third and final ground asserts that the sentence imposed is, in all the circumstances, manifestly excessive. 25 The submission on behalf of the applicant collates the subjective matters which needed to be taken into account on behalf of the applicant. They are that she was of good character, had no criminal antecedents, had acted spontaneously, had lost self control in the face of significant provocation, did not use a weapon or intend to kill, and manifested immediate remorse by the summoning of medical assistance and by her cooperation with authorities. She had good prospects for rehabilitation, was not a threat to society, and lacked therefore the need for personal deterrence. 26 All these matters are, of course, significant, however the Courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life and that is the starting point for a consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case: R v Blacklidge NSWCCA, unreported 12 December 1995. 27 In her assessment it was appropriate for her Honour to take into account the unchallenged evidence that the frail victim made no attempt at resisting the assault being visited upon him. Although the applicant estimated its length as ten minutes, it was plainly a persistent and continuing attack upon an unresisting victim. 28 It has frequently been observed that possibly of all criminal behaviour there is scope for the widest possible range of appropriate sentence when one deals with manslaughter. In a case where that offence is committed because murder has been reduced to it by reason of provocation, it is always the case that an intention, in this instance to do grievous bodily harm, rather than expressly to kill, is formed by the person who has lost self control. To take human life in those circumstances is necessarily a crime which must be reflected proportionately to that intention and its fatal consequence, although mitigated by the provocation. 29 Every sentence is imposed in the exercise of a judicial discretion and there is no such thing as a correct sentence: see Pearce v The Queen 1998 194 CLR @ 624; Ryan v The Queen 2001 206 CLR @ 307. 30 In my opinion the sentence imposed lay well within the range of the sound exercise of discretion by Bell J and I would grant leave to appeal but dismiss the appeal. 31 HULME J: I agree with the orders and reasons proposed. 32 SIMPSON J: I also agree. 33 GROVE J: The orders of the Court will therefore be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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