Supreme Court New South Wales Medium Neutral Citation: R v Kaine (No 2) [2013] NSWSC 1824 Hearing dates: 6 December 2013 Decision date: 06 December 2013 Before: R A Hulme J Decision: Imprisonment for 30 years with a non-parole period of 22 years 6 months Catchwords: CRIMINAL LAW - sentencing - murder - intention to kill - exceptionally savage and sustained unprovoked assault of disabled older man in his own home - mistaken vigilantism - use of a weapon - serious example of offence - partial defences of provocation, excessive self-defence and substantial impairment rejected - some evidence of mental illness to slightly reduce importance of general deterrence - risk of future offending against other inmates Category: Sentence Parties: Regina Michael Peter Kaine Representation: Counsel: Mr L Carr (Crown) Mr R Cavanagh (Offender) Solicitors: Solicitor for Public Prosecutions O'Brien Winter Partners File Number(s): 2011/405549 Judgment 1HIS HONOUR: Michael Peter Kaine ("the offender") is to be sentenced for the crime of murder. It is a crime that carries a maximum penalty of imprisonment for life. There is also a standard non-parole period of 20 years. The victim 2Mr Dennis Griffin was a 62 year-old disability pensioner who lived in a single bedroom unit in a complex in Platt Street, Waratah. He had suffered from cranial dystonia for some 20 years. He was described as being very thin (he was 177cm tall and weighed some 60kg), unsteady on his feet, and he constantly twitched. He was hunched over when he walked; he had a limp; and a speech impediment. His sister said that he was "pretty weak"; she did not think he had much strength at all. A neighbour said that he had difficulty holding on to things and would often drop them. 3Mr Griffin was security conscious and he was described as a very private person. He did, however, have regular outings to a hotel next door. He would go to the Town Hall Hotel around opening time and ask for a Diet Coke and a glass of ice. He would talk to whoever was there; consume usually only half of his drink; and then leave. Most Saturdays he would make his way to a shopping centre where he would do his shopping and then meet up with his sister who would drive him home. 4Mr Griffin was acquainted with a man named James Chasty. Mr Chasty was in turn acquainted with Neroli Whyborn and the offender. Ms Whyborn had a falling out with Mr Chasty. She accused him of being paedophile and let others know of this, including the offender. Seemingly because of Mr Chasty's acquaintanceship with Mr Griffin, she falsely and maliciously accused him of being a paedophile as well. She told the offender and, even though he had never met Mr Griffin, he believed her. 5The offender subsequently told Dr Bruce Westmore, forensic psychiatrist, that he felt that Mr Griffin was "pretty evil". He thought, "what if he hurt any children and he probably has in the past". He also said that Mr Griffin and his friends had been "doing some bad things for some time". He told Dr Olav Nielssen, also a forensic psychiatrist, that he felt Mr Griffin was a threat to children in the community. 6The offender was a person who had extreme views about paedophiles. This possibly arose from having been molested when he was young. A number of witnesses in the trial spoke of him being passionate and filled with hatred about such people. A report of a psychiatric evaluation of the offender in February 2012 described him as having "over-valued pre-occupations about paedophiles". The murder 7Late on the afternoon of Monday 3 October 2011, a neighbour heard someone coming up the stairs and then a knocking on Mr Griffin's door. He heard the door open and then close. He then heard some noises coming from Mr Griffin's unit; he thought it sounded like people moving furniture around. After about 15 minutes, he heard Mr Griffin's door open and then slam closed. He saw a man running down the stairs. 8Mr Griffin was not seen alive again. At about 5pm the following afternoon, neighbours became concerned that they had not seen Mr Griffin. The next-door neighbour had a key and so he and another neighbour entered the unit. They found Mr Griffin dead on his bed, with two wardrobes tipped over on top of him. They did not touch anything but left the unit and alerted the authorities. 9The subsequent investigation revealed that Mr Griffin had died from multiple injuries. There was severe blunt force trauma to his face and head. This caused black eyes, extensive bruising to the entire face, multiple fragmented fractures to the bones in the face including the eye sockets, cheeks and jaw, and a broad fracture across the top of the skull. It also caused a significant underlying brain injury. I am satisfied beyond reasonable doubt that this was caused by a small television set found beside the bed being smashed onto his face when he was prone on the bed. There were 18 stab wounds and 18 slash wounds primarily to the face, neck, chest and abdomen. Some were of sufficient force to penetrate bone in the ribs and some penetrated the heart. 10In an unrelated incident, the offender was found two weeks later to be in possession of a chicken boning knife, an implement with dimensions consistent with those of the weapon that had been used to cause the various wounds. DNA material linked the offender to the crime scene. By early December 2011, police were endeavouring to locate him. Ultimately he was arrested in Mt Gambier, South Australia, on 22 December 2011. The offender's defence at trial 11The offender's primary defence at trial was an attempt to raise the partial defence of substantial impairment by abnormality of mind. In support of this he relied upon the expert testimony of Dr Olav Nielssen who was of the opinion that there was impairment of the offender's capacity to understand events, judge whether his actions were right or wrong, and to control himself. Dr Nielssen considered that this impairment arose from an abnormality of mind arising from an underlying condition, namely traumatic brain injury sustained in motor vehicle accidents in 1998 and 2010 and probable bipolar disorder that had been diagnosed in 1993. 12The Crown called another eminent psychiatrist, Dr Bruce Westmore. He was not even persuaded that the offender suffered from an abnormality of mind, let alone that he had a substantially impaired capacity in any of the three respects just mentioned. Clearly, the jury favoured Dr Westmore's opinion over that of Dr Nielssen. That is understandable given that, in my view, there was a significant element of assumption and speculation in Dr Nielssen's reasoning whilst Dr Westmore's opinion was soundly based upon medical records and more persuasive analysis. I am satisfied on the balance of probabilities that Dr Westmore's opinion should be preferred. 13The offender also relied upon self-defence and provocation. These asserted "defences" depended only upon a version advanced by him in his evidence. In my view, that version was utterly incredible. He claimed that Mr Griffin indecently assaulted him and tried to lure him into the bedroom for the purpose of engaging in sexual activity. One of the most preposterous claims he made was that after he had rebuffed Mr Griffin's sexual advance, Mr Griffin had invited him to come into the bedroom and said, "I like it rough". A serious example of murder 14I am satisfied beyond reasonable doubt that the offender believed that Mr Griffin was a paedophile and he went to his unit in order to confront him about this. I am satisfied that the offender tricked Mr Griffin into allowing him to enter the unit. He assaulted him in the living area and continued to do so in the bedroom, including kicking him to the groin. The assault culminated in Mr Griffin lying prone and defenceless on the bed. The offender then cut and stabbed him a great many times and smashed the TV onto his face. As a final indignity he tipped the wardrobes over on top of Mr Griffin and left him for dead. 15The Crown put its case to the jury on the basis that the offender had an intention either to kill or to inflict grievous bodily harm. My conclusion is that it is overwhelmingly clear that the offender's intention was to kill. 16Dennis Griffin was an innocent man who was brutally attacked with extreme violence in his own home and, given his age and very frail physical condition, he was completely incapable of defending himself. 17This represents a very serious example of the crime of murder. The offender 18The offender was born in 1963. He was aged 47 at the time of the offence and is now 50. 19He has a criminal history in three states. There are many convictions and they include assaults, including assault occasioning actual bodily harm and assault with intent to prevent apprehension; resisting police; possession of drugs; malicious wounding; damaging property; breaching domestic violence orders; break, enter and steal; larceny; and having custody of goods suspected to be stolen. A lot of these matters occurred in the early to mid 1990's. The last entry is for assault in 2010. 20He has been imprisoned on half-a-dozen occasions. The longest period of imprisonment was for a period of 2 years with a non-parole period of 1 year for two malicious wounding offences in 1992. Those offences involved the offender producing a knife and using it on two innocent victims, lacerating the throat of one and stabbing the other in the back. 21There was an assault occasioning bodily harm for which the offender was sentenced to 12 months gaol in Queensland in 1996. He told Dr Westmore that the victim was a man who led a youth group in which his then 11-year-old stepson was involved. He suspected this man was molesting children. He told Dr Westmore that one day when this man came around to the home, he "beat the shit out of him". 22The offender was born in Victoria and lived his early life there. He described his childhood as "reasonably happy until the incidents as a teenager". This was a reference to instances of sexual molestation, or attempts of the same, by a priest at a Catholic secondary school and by a man in a railway station toilet. 23His parents separated when he was aged about 14 and he stayed with his mother. After leaving school he trained as a motor mechanic before changing to an electronics traineeship and became a qualified radio technician. He later resumed his motor mechanic apprenticeship and completed it. His employment was mostly as a mechanic and in electronics. 24He came to New South Wales to look for work in about 1990 and while working in Cessnock he met his future wife, Sue. She had two sons from a previous relationship. He brought up her youngest son as his own. They had a son together who is now aged 21. 25While in custody in 1993 the offender was diagnosed with what is now described as bipolar disorder type one. This was the subject of disputed evidence in the trial. I prefer the reasoning of Dr Westmore who said, in effect, that with hindsight this was likely to have been a drug-induced psychosis, given that there was evidence of drug use at the time and there was no evidence of any ongoing symptoms when abstinent from drugs. 26The offender was injured in motor vehicles accidents in 1998 and 2010. The records do not state that the offender sustained any significant enduring brain injury as a result. He experienced depression but there were other explanations for that. He returned to work after the accident in 1998, albeit not in the fields in which he was skilled. He worked at a poultry factory in Toowoomba and as a furniture removalist. The family returned to the Hunter Valley in about 2003. He worked intermittently from that time and also acted as carer for his wife who had suffered motor vehicle collision injuries herself. She later developed cancer and has since passed away. 27At the time of the offence the offender was sharing a flat with his older stepson. He was in receipt of a Newstart allowance from Centrelink. 28The offender has a history of alcohol use at levels that are difficult to determine. He told the jury that he drank alcohol once a week. It seems that, at times, he has been a heavy drinker according to a description given in a statement by his late wife. 29The offender claimed in his evidence before the jury that he had little involvement with illegal drugs. He said that he "never had a speed habit", but had tried it once or twice but didn't like it; he had never taken heroin; and he had only tried cannabis once or twice and didn't like it either. 30There was an incident in 2012 while the offender was on remand that resulted in him sustaining a severe head injury. He had a fall for reasons he cannot recall on 30 July 2012. He suffered a fractured skull and an intracranial lesion. 31When he interviewed the offender in March 2013, Dr Nielssen detected some signs of injury to the frontal lobes of the brain and indicators of significant impairment of cognitive function from the offender's mental state examination. He described the offender as being slow in his responses; he had difficulty switching to new topics; and a test administered during the interview required some effort to answer simple questions. 32However, when he was interviewed by Dr Westmore on 26 August 2013 he was found to be alert and attentive; he was neat, tidy, pleasant and co-operative in presentation; he maintained good eye-contact and spoke spontaneously and expansively; his mood and affect, whilst restricted, were appropriate; there was some mood reactivity but he did not present as depressed; and there were no psychotic symptoms displayed. Elsewhere in his report, Dr Westmore said that there did not appear to be any overt or gross long term cognitive deficits arising from the 2012 head injury. 33Dr Westmore's opinion was that "you would expect that cognitive problems arising from the internal injury would improve over a period of two years, up to two years following the injury". A comparison of the mental state examinations by the two experts in March and then August 2013 tends to support that view. 34The offender told Dr Westmore that he is currently prescribed the antidepressant, Avanza, and he also takes Panadol Osteo as required. Mr Cavanagh, counsel for the offender, told me that his instructions were that the current medications were Avanza, Serapax and Codeine. (The pain medications are likely required in relation to a cervical spine injury the offender sustained in one of the motor accidents.) Mr Cavanagh also informed me that the offender is being held in a prison hospital because of his mental condition. 35Preferring, as I do, Dr Westmore's evaluation over that of Dr Nielssen, I am not satisfied that there was any mental condition that had a causative relationship with the killing of Mr Griffin on 3 October 2011. The submissions in support of finding that there was such a relationship in part referred to the frenzied nature of the attack. I accept that this is a pointer in that direction, but there can be other reasons for it. To my mind it is explicable because of the extreme views held by the offender about people he thinks are paedophiles. 36It was also submitted that because of his mental condition the offender is an inappropriate person to make an example of to others. In other words, general deterrence should not play a role in sentencing. I am not persuaded of that. I will reduce the emphasis I place on this factor because, whilst the situation is not entirely clear, it is obvious enough that something is not quite right with the offender mentally. However, the extent to which general deterrence is less significant is modest. 37Another submission made in the context of the offender's mental condition is that he would experience more onerous custodial conditions. In my view, the evidence is insufficient to support such a finding. Other matters relevant to the assessment of sentence 38It has not been submitted by the Crown that this is an appropriate case in which the maximum penalty of life imprisonment should be imposed. I accept that is so. 39It is, however, a very serious example of the crime of murder and sight must not be lost of its objective gravity. 40The trial was conducted by the defence in a relatively efficient fashion in that there was a focus only upon the real issues. Insofar as this facilitated the administration of justice the offender should be given some credit. 41There are few other matters that go to mitigation of the sentence aside from giving less weight to general deterrence because of the offender's mental condition. He has no claim to prior good character; his rehabilitation prospects are problematic; and he does not get the benefit he otherwise would have got for a plea of guilty. 42The offender might be less likely to re-offend when he is finally released, because of his age, but in the intervening period I am not convinced. Hopefully he will be held in gaols in which he will not encounter any child sexual assault offenders. His entrenched and extreme views about such people would put them at significant risk of harm. I am not persuaded by the submission which was to the effect that he had seen the error of his ways. 43The offender said in his evidence that he felt sorry for what he had done to Mr Griffin and that he felt that what he did to him was wrong. At an earlier point in his evidence he said after leaving Mr Griffin's unit: I felt terrible and I felt remorse for his family and to some extent, for him and I'd realised I'd overstepped you know, I wish that I'd just walked out there and left him alone and gone to the police or something about him, but unfortunately he assaulted me and I was trying to defend myself and I went too far. 44In the context of falsely blaming Mr Griffin for what happened, these claims of "remorse" come across as hollow. I am not satisfied that he is genuinely remorseful. Although not part of my reasons for coming to this conclusion, I did find that it was confirmed by the offender's attitude when a victim impact statement was read. Everyone in the courtroom was listening intently, but the offender displayed complete disinterest and occupied himself otherwise. 45Even with reduced emphasis on general deterrence, both it and personal deterrence are important. They are important in sentencing for murder anyway, but general deterrence is also important so as to make clear that people simply cannot purport to take the law into their own hands by exacting violent retribution against people they perceive to be responsible for criminal activity. This case demonstrates what tragic consequences can follow. Courts administer criminal justice to a standard that requires criminal offences to be proved beyond reasonable doubt. The offender, however, sought to exact punishment upon a man on the basis of unsubstantiated hearsay. And he got it so terribly, terribly wrong and killed an innocent man. Victim impact statement 46A victim impact statement was read on behalf of Mr Griffin's family. It makes abundantly clear the tragedy and grief the offender's actions have caused to many people. 47Nothing I can do in sentencing the offender can undo the past or make up for their loss; and there are well known constraints upon the extent to which such a statement can be taken into account. But I am grateful for having been informed of the real impact the offender's actions have had upon so many people. Again, I extend my sincere condolences to the family and friends of Mr Griffin. Sentence 48Convicted. 49Sentenced to a term of imprisonment comprising a non-parole period of 22 years 6 months and a balance of the term of the sentence of 7 years 6 months. 50The total term is one of 30 years. 51The sentence will date from 22 December 2011. The first day the offender will be eligible for release on parole will be 22 June 2034. The total term will expire on 21 December 2041. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2013