R v HENZON, Kaycee [2012] NSWSC 726

Supreme Court New South Wales

Medium Neutral Citation: R v HENZON, Kaycee [2012] NSWSC 726 Hearing dates: 01/08/2011, 09/03/2012, 01/06/2012 Decision date: 29 June 2012 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: On each count of obtaining money by deception, FT 18 months from 10.12.09. On murder, 18 years, NPP 13 years, from 10.06.11. Catchwords: CRIMINAL LAW - sentence - murder, obtain money by deception - reckless indifference to human life - spontaneous killing - pleas of guilty in Local Court Legislation Cited: Criminal Case Conferencing Act 2008 Crimes Act 1900 Category: Principal judgment Parties: Regina (Crown) Kaycee Henzon (offender) Representation: Counsel: A McCarthy (Crown) I McClintock SC (Offender) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) SE O'Connor - Legal Aid Commission (offender) File Number(s): 2009/279367

REMARKS ON SENTENCE 1HIS HONOUR: The offender, Kaycee Henzon, has pleaded guilty to the murder of Nancy Margaret Brayshaw in her home at Epping on 19 November 2009. She has also pleaded guilty to two counts of obtaining money of Ms Brayshaw by deception on 4 November and 18 November 2009. In addition, she has asked that I take into account on a Form 1 two further offences of obtaining money by deception, on these occasions money of George and Helen Kozma.

Facts

2The case is unusual because, although the offender has pleaded guilty to these offences, I have no evidence about what led to them and, in particular, no evidence of the circumstances in which the murder was committed. The offender has not put forward any account of these events. After her arrest she declined to be interviewed by the police, and she did not give evidence in these sentence proceedings. That being so, I have a statement of facts which recounts the offences in chronological order and which, as far as the murder is concerned, can do no more than summarise the Crown's circumstantial case against the offender. 3It is necessary to set out the whole of that statement of facts. With some minor amendments, it is as follows: The offender, Kaycee Udele Henzon, born 17 April 1983, commenced employment with the National Australia Bank (NAB), Carlingford Branch on Tuesday 18 August, 2009, as a bank teller. The deceased, Nancy Margaret Brayshaw, born 7 January, 1937, was an account holder with the NAB Carlingford Branch. The offender met the deceased in the course of performing her duties at the bank. Mr and Mrs Kozma About 1.09pm on Monday 26 October, 2009 the offender conducted a transaction with a married couple, George and Hala Kozma, who held an account at the NAB Carlingford Branch. The Kozmas disclosed to the offender that that they were returning to live overseas. The victims completed a withdrawal voucher for $410.00 and received cash to that amount over the counter from the offender. Sometime later that day the offender added the number '5' in front of the '$410.00' changing the withdrawal voucher to read $5410.00, thus removing an additional $5000.00 from the Kozmas' account. [First offence on the Form 1]. At 4.35pm that day, after the branch had closed for trading, the offender deposited $1,200.00 into her personal NAB account. National Australia Bank records show that a Customer Profile and Bank Account were created at the Carlingford Branch in the name of the mother of the offender on 3 November 2009, at 2.20pm. The offender opened the account using documentation in her mother's name. She did this by asking another staff member to help her create a customer profile and bank account in her mother's name. Permission to do this was sought and given by a senior staff member. She provided her mother's identification documents to open the account. She said her mother was too sick to attend the bank herself. About 3.58pm on Tuesday 3 November, 2009 the offender fraudulently withdrew a further $11,000.00 from the account of George and Hala Kozma. [Second offence on the Form 1]. At the time the account holders were not present at the NAB Carlingford Branch. At 4.01pm that date the offender credited $9,500.00 into the account of her mother, with a transaction narrative 'Fr: Mrs Deleon'. At 4.05pm that date the offender credited her personal NAB account with $1,500.00 with a transaction narrative 'Physiotherapy'. Miss Brayshaw (counts 2 and 3) At 2.36pm on Wednesday 4 November, 2009 the offender fraudulently withdrew $15,000.00 from the account of the victim Miss Brayshaw. Miss Brayshaw was not present at the NAB Carlingford Branch at the time of this transaction. [Count 2 in the indictment]. At 2.42pm the offender credited the NAB account of her mother with $2,000.00. At 2.46pm the offender again credited the NAB account of her mother with $13,000.00 with a transactions narrative of 'ATO'. At that time the offender drew a bank cheque from the account of her mother for the amount of $22,500.00 made payable to 'Larke Hoskins' (a Honda motor vehicle dealership). This bank cheque was then used to purchase a 2009 Black Honda Jazz NSW registration BLR-73V on 6 November 2009. On 13 November 2009, the offender became aware that the unauthorised withdrawal of monies from the Kormas' account had been reported to the NAB. On 16 November 2009, the prisoner placed an on- line advertisement in the Trading Post seeking to sell the black Honda Jazz that she had taken delivery of on 6 November 2009. At 2.37pm on Wednesday 18 November, 2009 the offender fraudulently withdrew $100,000.00 from the account of Miss Brayshaw. [Count 3 in the indictment]. At this time CCTV shows Miss Brayshaw is not in the Carlingford Branch. The offender then credited this $100,000.00 into an NAB account in the name of her ex-husband's younger brother. This account had not been used for several years and was in debit by $1. The offender then drew a bank cheque that day for the amount of $99,999.00 from that account. The murder (count 1) Around 10:06am on Thursday 19 November, 2009, the offender is recorded on CCTV entering the Eastwood branch of the Westpac Bank. The offender is seen to complete a deposit slip before approaching a teller where the offender deposited the $99,999.00 cheque into the Westpac Account of the offender's mother. At the time the offender made an additional payment to have the cheque cleared within 24 hours. In excess of $200,000.00 remained in Miss Brayshaw's account. Soon after, the offender drove to Miss Brayshaw's address and entered the house. Some time before 7 pm that day the offender drove to her residence at Unit 20, 1 - 7 Gaza Road, West Ryde, where she spoke to her partner Mr Rey Ramos and told him about an alleged sexual assault upon her. The offender and Ramos then drove to the work place of the mother of the offender at Beecroft, and together they all drove to Eastwood Police Station to report this incident. About 7.00pm the offender attended Eastwood Police Station, where she reported an allegation of a sexual assault having been committed upon her earlier that day at 9 Cooke Way, Epping, the residence of the victim Miss Brayshaw. The offender was taken to Royal North Shore Hospital where a Sexual Assault Investigation Kit (SAIK) was performed upon her. Following her attendance at the hospital the offender was taken to Ryde Police Station, where she provided an electronically recorded statement in which she gave police an account of the alleged incident. Henzon alleged an incident where she and Ms Brayshaw were assaulted by strangers - the account was a complete fabrication and the detail provided was false. Whilst the offender was at Royal North Shore Hospital, police attended 9 Cooke Way, Epping, the residence of Miss Brayshaw. A boarder led police to the boarder's bedroom where she had located Miss Brayshaw deceased on the floor. Miss Brayshaw was found fully clothed laying on her back with both arms extended above her head. A white singlet was in her left hand. A Post Mortem carried out on Miss Brayshaw determined the cause of death was asphyxia. The pathologist, Dr. Rainie Van Vuuren, in her report provided a summary of significant post mortem findings. About 11.00am on Thursday 19 November, 2009, Andrew Lawler, a cousin of Miss Brayshaw arrived at Miss Brayshaw's residence to take Miss Brayshaw to a pre-arranged lunch engagement. A subsequent examination by a police expert of the offender's mobile phone showed triple 0 had been dialled 3 times, once at 11.28am and twice at 11.39 am, but each call was of zero duration. The expert could not tell if the calls were terminated by the network or the user. A second witness who was in the front garden of the house next door to Miss Brayshaw's on 19 November 2009 described to police seeing a female matching the description of the offender walk down the driveway of Miss Brayshaw's premises from the rear yard to the street about 3.30pm. On Saturday 21 November, 2009 the offender contacted investigating police and advised that she had further information regarding the alleged incident in which she was involved. Arrangements were made by police to meet with the offender on Sunday 22 November, 2009. On that day the offender attended the Ryde Police Station, where she participated in an electronically record interview. The offender again gave police a false account of events. About 5.15am on Thursday 10 December, 2009 police attended Unit 20, 1 - 7 Gaza Road, West Ryde and there arrested the offender. The offender was conveyed to Ryde Police Station where she was entered into custody. Whilst in custody, in accordance with custody provisions, the offender had a telephone conversation with a solicitor. About 8.40am Mr Laurie Myers, solicitor, attended Ryde Police Station and had a conversation with the offender. Following that conversation, the offender declined to take part in an interview. The offender was recorded formally declining to take part in an interview. The offender was then charged with the murder of Nancy Brayshaw. The offender appeared at Ryde Local Court that day where she was refused bail. In September 2010, the offender advised the prosecution that she had caused the death of Miss Brayshaw and offered to plead guilty to manslaughter. The offer was not accepted. Over the following months discussions were had between the parties in an attempt to settle an agreed statement of facts which could be tendered at committal in relation to a charge of murder. Agreement could not be reached and on 29 March 2011 the offender pleaded guilty to the murder of Nancy Brayshaw in Central Local Court, Sydney. She also pleaded guilty to the two charges of obtain money by deception on Ms Brayshaw, and two charges of obtain money by deception on the Kozmas. She was then committed to the Supreme Court for sentence. 4This statement of facts was supplemented by some of the material in the Crown brief. From that material it emerges that Ms Brayshaw's cousin, Mr Lawler, had spoken to her by phone a little after 7am that day. When he arrived at her home at about 11am, he was unable to get any response from her after tapping on the kitchen window and calling out to her on two occasions. He also rang her twice but the phone did not answer. The evidence suggests that the offender was in the home at the time he arrived. Phone records disclose a very brief call from the offender's mobile to Ms Brayshaw's phone at 10.27am, presumably to check that Ms Brayshaw was home after she had completed her deposit at the Eastwood branch of the bank. Presumably, it would not have taken long to get from Eastwood to Ms Brayshaw's home at Epping. 5This raises a question whether Ms Brayshaw was already dead at the time Mr Lawler arrived, or whether his arrival precipitated the actions of the offender which led to her death. It is consistent with the triple-0 emergency calls from the offender's mobile at 11.28 and 11.39am, although why those calls were immediately terminated remains unexplained. The facts refer to the observation of a neighbour of a person fitting the offender's description leaving Ms Brayshaw's home some hours later, at 3.30pm. If it was the offender, that also is unexplained. All that said, I do not find these matters to be of any assistance in divining the circumstances of the murder. 6Dr Van Vuuren's post-mortem findings and report were reviewed by Professor John Hilton, another forensic pathologist. Put shortly, the cause of Ms Brayshaw's death was accepted to be asphyxia. The evidence conveyed that pressure had been applied to her mouth, nose and neck, and other injuries were observed consistent with having been sustained in a struggle. Finger nail scrapings from Ms Brayshaw disclosed DNA matching the offender's, and there was evidence that the offender herself had injuries also consistent with a struggle. 7The Crown prosecutor noted that at the time of the killing the offender was 26 years old and Ms Brayshaw was 72. He submitted that the injuries inflicted upon the offender by Ms Brayshaw support the inference that she was fighting for her life in an attack mounted by the offender, and that I should conclude that the offender intended to kill her. Counsel for the offender, Mr McClintock SC, argued that I should find that she acted with reckless indifference to human life. The Crown prosecutor put his case on the basis that the intent was formed at or about the time of the killing. He did not suggest that the killing was premeditated, that is, that the offender went to Ms Brayshaw's home for the purpose of killing her. 8A decision on this issue is bedevilled by the lack of any evidence of the precise circumstances in which the killing occurred. I have given the matter careful consideration, and I find that the evidence is as consistent with reckless indifference to human life as it is with an intent to kill. That being so, I cannot be satisfied beyond reasonable doubt that the offender did intend to kill and she will be sentenced on the basis of reckless indifference to human life. 9There remains the question of the offender's purpose in going to Ms Brayshaw's home that morning. Robbery can be ruled out. Police who attended the scene found $18,000 in cash in a readily accessible place inside the house. Plainly enough, the visit was related to the offender's defrauding of Ms Brayshaw. It followed upon her depositing into her mother's account the proceeds of her fraudulent withdrawal from Ms Brayshaw's account the previous day. It may also have been influenced by her discovery some days earlier that her unlawful withdrawal of money from the Kormas' account was apparently under investigation. That, most likely, is why she set about selling the Honda Jazz. (Indeed, in the later afternoon of the day of the killing she had a phone conversation with a prospective buyer of that car.) 10Mr McClintock argued that the facts were consistent with her attempting to marshall some of the defrauded money so as to reach a compromise with Ms Brayshaw. However, I find it improbable that the purpose of her visit was to make a genuine arrangement to repay Ms Brayshaw. I think it more likely, as the Crown prosecutor submitted, that she was seeking in some way to prevent the discovery of her fraud. 11More than that I cannot say. All that can be said is that there must have been a heated exchange between the two women which degenerated into a physical struggle. The violence may well have been initiated by the offender, but I accept that it was spontaneous.