R v MB [2011] NSWSC 1376

Supreme Court New South Wales

Medium Neutral Citation: R v MB [2011] NSWSC 1376 Hearing dates: 27 May 2011 Decision date: 16 December 2011 Jurisdiction: Criminal Before: RS Hulme J Decision: I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 22 September 2008 together with a further period of 2 years and 6 months commencing on 22 March 2013. I order that the whole of the said non-parole period be served as a juvenile offender. I record as the date upon which it appears to the Court that the Prisoner shall become eligible for parole, 22 March 2013. Catchwords: CRIMINAL LAW - manslaughter - substantial impairment by abnormality of mind - sexual abuse - sentence Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v AGR (unreported, NSWCCA, 24 July 1998) R v Gordon (unreported, NSWCCA, 7 February 1994) R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 R v Hemsley [2004] NSWCCA 228 R v NR [2011] NSWSC 280 Category: Sentence Parties: Regina MB Representation: Mr T Thorpe Ms D Yehia SC Solicitor for DPP Legal Aid Commission of NSW File Number(s): 2009/11709

Judgment 1RS HULME J: The Prisoner stands to be sentenced for the offence of the manslaughter of Gary Kemlo, of which offence a jury found him guilty on 31 March last. I instruct myself that any findings of fact I make must be consistent with the jury's verdict, that I must be satisfied beyond reasonable doubt of any matters of aggravation not necessarily implicit in the jury's verdict but that in the case of matters of mitigation, it is sufficient if I am satisfied of them on the balance of probabilities. 2In the early hours of 22 September 2008, the Prisoner then aged 16 years and 8 months, left his parents' home in which he was living, taking with him a boning knife and yellow torch and walked some 2.9 kilometres to Mr Kemlo's house. The Prisoner also took with him some gloves so that he would not leave fingerprints. When Mr Kemlo opened his front door, the Prisoner stabbed him a number of times. The Prisoner said it was five times. 3The Prisoner then took a number of items including a laptop computer and some $2,600 from the house and placed them in the deceased's car. He then obtained petrol from Mr Kemlo's shed, spread it throughout the upstairs and downstairs of the house and then set the house on fire. The Prisoner agreed that this was done to destroy the evidence. The Prisoner then drove away in Mr Kemlo's car back to the vicinity of his own home. 4There, again with a view to destroying evidence, he made an attempt to burn his clothing that was blood-stained along with the deceased's wallet. The attempt can only be described as amateurish because when later that morning his mother discovered the items in a drum, the burning had been very incomplete. The Prisoner then picked up an X-box that he owned - an item which he had taken a while to pay for and which was probably his most valuable possession - placed it in the deceased's car and proceeded in the car to the south side of Inverell. 5He parked the car, walked some distance to premises of a friend Donna Bates, left his X-box and the items he had stolen there, bought some cigarettes at a shop, went to the premises of another friend Clint Truman who, at the Prisoner's request, bought some cannabis and alcohol for the Prisoner. While drinking, the Prisoner, in the words of Mr Truman, "had a bit of giggle ... to himself" but when asked what about, said, "nothing" and kept giggling. After a time, the Prisoner left and went to premises occupied by Mr Bradley Truman. There the Prisoner asked, "Do the police come here often?" and, a little later, "'cause I slit someone's throat and the police could be here soon". The police, in fact, arrived soon after arresting the Prisoner some time after 4.30 that afternoon. He has been in custody ever since. 6The Prisoner gave evidence that when walking to Mr Kemlo's house on the night of his death he felt angry towards the deceased and he was hearing voices that were telling him to kill Mr Kemlo because of the latter's sexual abuse (of the Prisoner). 7For completeness I should add that the Crown had submitted to the jury that the Prisoner's motive in attending the deceased's house on the night of the latter's death was theft and the killing occurred in consequence of the deceased interfering in some way with the Prisoner's planned activities. It seems to me that the jury's verdict involves a rejection of this theory. In any event, I regard it as less likely than that the Prisoner, for whatever reason, set out to kill the deceased.