R v Timbreza [2012] NSWDC 142

District Court New South Wales

Medium Neutral Citation: R v Timbreza [2012] NSWDC 142 Hearing dates: 17 May 2012 Decision date: 17 May 2012 Before: Berman SC DCJ Decision: Convicted and sentenced to overall term of three years with an effective non parole period of eighteen months. Catchwords: CRIMINAL LAW - Sentence - Common assault - Aggravated indecent assault - Vulnerable victim - Physical disability. Category: Sentence Parties: The Crown Elma Peralta Timbreza Representation: Ms G O'Rourke - The Crown Mr R Keller - The offender Director of Public Prosecutions Ariana Defence Lawyers - The Offender File Number(s): 2010/00348825

SENTENCE 1HIS HONOUR: All of us are going to get older and some of us will become elderly to the stage where we need to be cared for by others. To care for a frail ninety-one year old man in a proper way necessarily involves indignities but the behaviour of Elma Timbreza, who appears for sentence today, was designed to heap further indignities upon an unfortunate and highly vulnerable elderly man in her care and to make matters worse she appears to have done this out of pure malice. 2She has pleaded guilty to eight offences of aggravated indecent assault and four of common assault. The circumstance of aggravation relied on by the Crown in each case relates to the victim's physical disability. 3Mr John Cummins has been living at the Gertrude Abbott Nursing Home in Surrey Hills since 2006. At the time of these offences he was ninety-one years of age suffering from dementia and regarded as a high care resident. That means that he needs assistance from nursing home staff with most daily tasks including washing, dressing, going to the toilet and eating. Those sorts of things are the necessary indignities I spoke about at the beginning of these remarks on sentence. Part of his problem involves a physical impairment to his left leg which means that he cannot support his own weight or move around unassisted. He cannot even straighten that leg. His knee is permanently bent up at an angle. 4Employed at the nursing home was the Offender. She worked as an assistant in nursing. She had had that position since 2003. She was the primary carer of Mr Cummins, assisting him with all essential amenities. 5For reasons that are difficult, if not impossible, to understand the Offender took it upon herself to behave in a disgraceful way towards Mr Cummins. 6I will describe the offences themselves in a little while but I first want to make this point. In some parts of the evidence put before me there are suggestions that Ms Timbreza was responding to some provocation offered to her by Mr Cummins. It is accepted by Mr Keller who appears on the Offender's behalf that proof of provocation is a mitigating circumstance with the burden lying upon him. It is further accepted that he cannot meet that burden and so I should sentence his client on the basis that no provocation was offered. 7Sometime between March 2009 and January 2010 the Offender was working with another assistant in nursing, Ms Linhao. They were doing a morning shift and as part of their duties they were in Mr Cummin's room getting him ready for a shower. He has to be moved by a sling from his bed into the shower chair. He was then taken into a separate shower room by the Offender. She was alone with Mr Cummins in the shower room for sometime. After a little while Ms Linhao walked into the shower room to bring a towel for the victim. Upon entering the shower room she saw Ms Timbreza acting very strangely. In fact what she was doing was committing the first of the offences for which she must be sentence, an aggravated indecent assault. 8What Ms Linhao saw was the victim seated naked in the shower chair. The shower chair has a hole in the seat to allow staff to clean the genitals and anus of the patient. Ms Timbreza was crouched down holding the shower hose in her right hand with no shower head upon it. Ms Linhao noticed that the hose seemed to be very close to Mr Cummins' anus. Suspicious of what was going on she pretended to accidentally drop what she had in her hand so that she could bend over and have a better look at what was going on. She saw that the rubber hose was going up to the anus of Mr Cummins, effectively touching him around his anal area. Ms Linhao noticed that the hose was held in that position for a couple of seconds before it was removed by the Offender. She remonstrated with Ms Timbreza saying "that's enough Elma". When Mr Cummins was taken back to his room to be dried he complained of being sore around his anus. 9The next two offences occurred on a different day. They are both offences of common assault. Again Ms Timbreza was teamed with Ms Linhao and again they were helping Mr Cummins get out of bed. Ms Timbreza was using a sling and she asked Mr Cummins to move forward so that she could put the sling over his head. He did not do what she asked. She reached out and slapped the victim, Mr Cummins, to the back of his head with an open hand. He said "Stop hitting me Elma, you're hurting my head". She then placed him in the shower chair and took him to be showered while Ms Linhao stayed in the bedroom to assist another resident. About five minutes later the Offender came back to the room pushing Mr Cummins in his shower chair. He was then dressed and moved with the sling to another chair. The Offender was standing behind Mr Cummins when she reached out and used her right hand to strike him to the back of his head in an open handed slap. Mr Cummins yelled out "Somebody hit me on the bloody head". The Offender said nothing but simply pushed Mr Cummins out to the dinning room. 10The next counts occurred on 1 October 2010. This time the Offender was working with another assistant in nursing, Ms Reyes. As before they were together getting Mr Cummins ready for his shower. Ms Reyes got him into the shower chair when the Offender came and stood behind Mr Cummins to push him into the shower room. She raised her hand up over Mr Cummins' head and struck downwards with the back of her hand striking the crown area of his head with the knuckles to her fingers. Mr Cummins yelled out in pain and said "What did you do that for"? The Offender replied in an sarcastic manner saying that it was an accident and wheeled him into the shower room. That is an offence of common assault. 11About five minutes later Ms Reyes went into the shower room to ensure that there was a towel available to dry Mr Cummins. Once she got into the room Ms Reyes saw Mr Cummins sitting naked on the shower chair with the Offender crouched down holding a rubber hose. That shower head had again been removed from that hose and a small metal pipe was visible at the point of the connection where the shower head would be fitted. The Offender was holding this metal pipe end of the hose about ten centimetres from Mr Cummins' anus and water was striking him directly upon the anus. That is an offence of aggravated indecent assault. 12About ten or fifteen minutes later the Offender returned to the bedroom pushing Mr Cummins in his shower chair. He was draped with a towel and together Ms Reyes and the Offender got Mr Cummins dressed. The Offender then crouched down beside Mr Cummins and began to vigorously rub a towel back and forward in a scrubbing motion in Mr Cummins genital and anal area. As she did this she said to Ms Reyes "I really hate this man". Mr Cummins yelled out "Be gentle down there, why are you doing that, stop that." This did not stop the Offender. She merely continued to do what she had been doing for about another five minutes while laughing and looking at Ms Reyes. 13At that stage Mr Cummins was then lifted up to his chair. As she removed the towel from his genital area the Offender reached out with her right hand and used her fingers to strike one of Mr Cummins' testicles hitting them with some force. He screamed out in pain. Once more the only response of the Offender was to laugh. That is another offence of aggravated indecent assault. 14We come to the final offence that occurred a few minutes later. After Mr Cummins was moved into his chair his left leg was bent up at a forty-five degree angle. As I mentioned before he is simply physically unable to straighten his leg. For reasons that, like all the other offences, are difficult to understand the Offender reached out and pushed down on Mr Cummins' knee in an apparent attempt to straighten it. Mr Cummins told her to stop and that his knee was sore but the Offender did not stop. She continued to push down on his left knee. Indeed she placed both of her hands on his knee and then her own knee to apply further downward force on his left knee. This apparently caused the Offender some amusement. Mr Cummins yelled out in pain and again he told her to stop which, thankfully, she ultimately did. 15A few days later Ms Reyes reported these incidents, the ones she had seen, to the nurse manager of the nursing home. Management contacted the police and then an investigation commenced. Ms Linhao who observed the first three offences also came forward and made a complaint. Mr Cummins was spoken to but was only able to give a limited version as to what had occurred to him. As part of the investigation the shower hose was seized. DNA consistent with that of Mr Cummins was found on the end of the shower hose. 16Shortly after the police investigation commenced the Offender was arrested. She participated in an electronically recorded interview where she made what is now accepted to be a series of lies. In particular she denied committing these offences. She gave explanations for some of her conduct which turned out to be untrue. She denied saying "I really hate this man". As parts of its investigation the police intercepted the Offender's mobile telephone. During calls that were listened to and recorded by police the Offender actually admitted hitting the victim and discussed with other assistants in nursing at the home what to say to police in order to corroborate the account that she gave to police in her electronically recorded interview. 17The Offender was born in the Philippines. There is nothing in her background which would provide any explanation of her behaving in such a malicious way towards a helpless, defenceless and vulnerable ninety-one year old man. She grew up in a poor area of the Philippines and was required, with her siblings, to work long hours on the family's farm but she was not subject to any form of abuse or neglect and reported to the author of the presentence report that overall her childhood was pleasant. She shared a warm and close relationship with family members during her formative years. She came to Australia in 1984 and became an Australian citizen in 1987. She came to Australia seeking work. 18She has been married but is now a single woman. She now socialises within a circle of friends of her church. A number of them signed a reference speaking of her being a very friendly person, kind hearted, hard worker, reliable and most especially trustworthy. That document suffers from the disadvantage, pointed out by the Crown, that there is nothing to indicate that those who have signed the document were made aware of the serious misbehaviour that the Offender had engaged in over a significant period of time. 19She lost her job, of course, at the nursing home as a result of these allegations being made. Nevertheless she has found other work. She works as a housekeeper through two different agencies. She has not told one of those agencies about these current matters. One might have thought that it was something that they should have been made aware of. 20A striking feature of the material put before me is the absence, at least in the early stages of this matter, of any understanding on the part of the Offender of just how wrong her conduct was. She has great difficulty, it would appear, empathising at all with Mr Cummins and provided only very limited insight. She claimed that some of the things she did were committed out of frustration but she denied to the author of the presentence report that her actions were inappropriate or that they were committed to intentionally cause pain. 21A psychologist's report likewise reflects a very poor understanding of the seriousness of her misconduct. Such thinking does not bode well for her behaviour in the future. Of course, because of these convictions, she will find it impossible to work in a nursing home but it could not be said that she will never again be the carer for helpless, defenceless and vulnerable individuals. 22I cannot say that her prospects of rehabilitation are good. Her evasion and her extremely limited understanding of the wrongfulness of her conduct prevent such a finding being made. 23General deterrence is of prime importance in this sentencing exercise. There are many people in the community who require assistance in their daily needs including highly personal assistance with showering and toileting. All of them are vulnerable to misbehaviour of this kind. No doubt some of them act in a way which those caring for them might find frustrating. That is where the Courts have a part to play, making it clear that should anyone else act in the way that the Offender has acted, whether through frustration or not, significant sentences will be imposed even where, as here, these are the first offences committed after a lifetime of what appears to have been exemplary behaviour. 24To send someone to gaol for the first time at the age of fifty-five is certainly not an attractive proposition but it is a sentence that Mr Keller, on behalf of the accused, concedes must be imposed. Of course the Offender can rely on her prior good character. She is entitled to a ten per cent discount for her late plea of guilty and the Crown makes no challenge to the suggestion that I would make a finding of special circumstances in this case based presumably on her age and the fact that this will be her first time in custody. 25I note that the common assaults could have been dealt with in the Local Court and indeed probably would have been were it not for the other offences for which the Offender must be sentenced. It almost goes without saying that offences that involve a breach of trust of this kind are serious because of that circumstance. In one sense, as Mr Keller acknowledged, they were committed in Mr Cummins' home. Whatever the precise meaning of the term "home", Mr Cummins lived at the nursing home and he is entitled to feel safe and regard it as a place of sanctuary or refuge. To have those involved in his care subjecting him to violence and the indecent acts that I have described is, of course, a serious matter indeed. 26These offences occurred over a relatively lengthy period. It is difficult to be precise but it is around a year and there were three separate days on which these eight offences occurred. It was certainly not a case that the Offender acted out of frustration and immediately regretted what she had done. She continued to act in this disgraceful way. There was no suggestion indeed she would have stopped were it not for the fact that she was arrested. 27I was invited to use the aggregate sentencing provisions. I will not do so. Of course the principle of totality applies. I will, as a measure of leniency, impose concurrent sentences on each of the common assault offences and each of the aggravated indecent assault charges as well although there will be partial accumulation of the sentence for the aggravated indecent assault matters on the sentences for the common assault matters. 28The sentences are follows; for each of the charges of common assault I set a fixed term of imprisonment of twelve months to date from 17 May 2012. On each of the charges of aggravated indecent assault I set a non parole period of one year to commence on 17 November 2012 with a head sentence on the indecent assault matters of two and a half years making an overall term of three years and effective non parole period of eighteen months. The Offender will be eligible for release to parole on 16 November 2013.