Supreme Court New South Wales Medium Neutral Citation: R v Kerry Forrest [2014] NSWSC 1680 Hearing dates: 7 November 2014 Decision date: 27 November 2014 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: Imprisonment for 25 years, NPP 19 years, from 14.2.11 Catchwords: CRIMINAL LAW - sentence - murder - pre-meditated killing for financial gain - offender terminally ill Legislation Cited: Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Anastasiou v R [2010] NSWCCA 100 Goebel-McGregor v Regina [2006] NSWCCA 390 R v Forrest [2013] NSWSC 527 R v Forrest [2014] NSWSC 612 Category: Sentence Parties: Regina (Crown) Kerry Forrest (accused) Representation: Counsel: Mr C Patrick (Crown) Mr M Ainsworth (accused) Solicitors: Mr S Kavanagh - Solicitor for Public Prosecutions (Crown) Ms E Hearne - Galloways Solicitors (accused) File Number(s): 2011/49657 REMARKS ON SENTENCE 1HIS HONOUR: After a trial before me, sitting without a jury, the offender, Kerry Forrest, was found guilty of murder. The victim was an 84 year old man, William Adamson. She administered to him a large dose of a morphine based pain killer, MS-Contin, a prescription medication which she took, causing his death from morphine toxicity. The Crown case against her was circumstantial, and in my written reasons for my verdict I examined it in some detail: R v Forrest [2014] NSWSC 612. For the purpose of sentence it is sufficient to refer to my salient findings. 2In about September 2009, Ms Forrest secured a position as a carer for Mr Adamson, then a widower, and she moved in to his home at Kareela. Mr Adamson did not seek a carer for health reasons. He was reasonably fit for his age and was mentally alert. He was a retired real estate agent and property developer, who at the time was trying to market a water saving device he had invented called the Rainsaver. He selected Ms Forrest as his carer because she had administrative and computer skills which he did not, and she could assist him in his marketing project. 3Put shortly, over the ensuing months she became involved in his financial affairs to the point where effectively she controlled them. Their relationship was a friendly one and he trusted her. 4In February 2010, the Kareela home was put up for sale. Ostensibly, the plan was to use the proceeds to build an investment home on land which Ms Forrest owned at Bundanoon. Mr Adamson was a willing party to this scheme. However, Ms Forrest came to control the process of the sale, and to exclude Mr Adamson from it, by manipulative behaviour which I need not recount. 5Settlement of the sale took place on 12 April 2010. Again put shortly, Ms Forrest misappropriated the proceeds of the sale, having already dissipated the deposit paid by the purchasers, which had been released earlier. In large part this money was spent on her gambling on poker machines at a number of clubs over a period of months, during which she sustained very large losses. Clearly, this was a serious breach of the trust Mr Adamson had reposed in her. I am satisfied that she planned to misappropriate the proceeds of the sale from an early stage, and indulged in deceitful and manipulative behaviour to that end. 6On 12 April 2010, after settlement of the sale of the home, Ms Forrest and Mr Adamson checked into a motel at Campbelltown. On the Friday of that week, 16 April, he was found dead in the motel room. Towards 11pm that night, Ms Forrest had called the 000 emergency line, apparently distressed, telling the operator that Mr Adamson was unresponsive and was not breathing. When ambulance officers arrived shortly thereafter, not only was he dead but he appeared to have been so for some time. I think it likely that she administered the MS-Contin tablets to him by crushing them and putting them in his food. When she did so is unclear, but it was probably on the Thursday or the Wednesday. 7She attempted in a variety of ways to cover her tracks. Earlier on the Friday evening she tried, unsuccessfully, to persuade her own general practitioner to come to the motel room, in the hope that that doctor would certify the death as one of natural causes. Eventually, she had no choice but to call 000, but what she said conveyed that she believed he might be alive. When questioned by police that night and early the following morning, she maintained her story about the circumstances in which she made the 000 call, giving a detailed account of her movements on the Friday and the days preceding it which was false. 8After the event she tried, unsuccessfully, to arrange for the cremation of Mr Adamson without the knowledge of his family. News of the death came to his sisters and to his stepson from other sources. The stepson, John Adamson, made contact with her, and she lied to him about the circumstances of his father's death. It was not until 14 February 2011, after what must have been a lengthy and painstaking investigation, that she was arrested and charged with the murder. 9This was premeditated murder. As I observed in my reasons for my verdict, Ms Forrest misappropriated Mr Adamson's money and killed him to prevent that misappropriation being exposed. Whether she had ever intended to use the proceeds of the sale of the home to develop the property at Bundanoon I cannot say. What I can say is that, if she did, she did not intend Mr Adamson to share the benefits of that investment with her. 10Ms Forrest was 50 years old at the time of the murder, and is now 55. She has a criminal history of offences of dishonesty, most of it old and of no present significance. However, on 10 February 2013, while in custody in relation to this matter, she was convicted of an offence of obtaining money by deception committed over a period of 3 months in early 2009, when she fraudulently drew cheques totalling a substantial sum of money on the account of her then employer. 11A pre-sentence report reveals that she had a disrupted and unhappy childhood, with little contact with her parents, who separated when she was an infant. She was raised mainly by her paternal grandparents, who are now deceased. She was married for 26 years, and has 2 adult daughters. The marriage was turbulent and her husband could be physically violent. Nevertheless, they remained on speaking terms. After the breakdown of her marriage she was in another relationship for some years prior to her contact with Mr Adamson. 12She was educated to Year 12 standard, but had not been in full-time employment for a long time. During her marriage her husband had been the main breadwinner. More recently she had received a disability support pension, supplemented by a carer's allowance while she was with Mr Adamson. 13She had a longstanding gambling problem with poker machines. She would sometimes spend long hours at a club, and it would appear that she tried to hide the extent of her addiction from those who were close to her. She told the author of the report that the gambling enabled her to take her mind off problems at home. 14The major issue in Ms Forrest's subjective case is the state of her health. On 9 May 2013 I refused her application for a permanent stay of the trial because of her illness, and in the course of my judgment I reviewed the medical evidence available at that time: R v Forrest [2013] NSWSC 527 at [4]-[14]. I have received updated medical reports for the purpose of sentence. 15She has cancer of the cervix, detected late in 2012. She has undergone treatment by way of radiotherapy at Prince of Wales Hospital under the care of Associate Professor Michael Jackson. She suffers a complex of other conditions, most importantly a left hydronephrosis, which is an effect of the cancer. It is the result of pressure of the tumour upon the ureter, causing difficulty passing urine, and has been treated by the insertion of ureteric stents. She suffers significant pain and discomfort. Unrelated to the cancer, she has a thrombus at the left common femoral vein, treated by anticoagulant medication. She has been diagnosed with chronic regional pain syndrome, and is in a wheelchair. 16When I heard the application for a permanent stay last year, I received evidence from Associate Professor Jackson and from an obstetrician and gynaecologist, Dr John Schmidt, engaged by Ms Forrest's solicitor. It is not necessary to review their evidence now, except to note that Dr Schmidt considered her prognosis as a result of the cancer as "dismal" and thought it unlikely that she would survive beyond 2 years. Associate Professor Jackson was less pessimistic, noting prognosis as "always very difficult." He suggested, tentatively, that her chance of being "alive and well at 2 years" was in the range of 25-30%. He added that there was "some possibility" that she would survive for 5 years. 17In a report of 3 November 2014, Associate Professor Jackson noted that she had been admitted recently to Prince of Wales Hospital, having collapsed in gaol because of low haemoglobin. She was managed by the palliative care team. He did not feel that any further radiotherapy, chemotherapy or surgical intervention was likely to improve her situation, noting that she had been resistant to suggestions for investigation or medical treatment. He reported that it was still difficult to give an accurate prognosis, but noted that her cancer remains incurable. His best estimate of her life expectancy was "in the region of 6 to 18 months." 18I also have recent reports from Dr Rosanne Moses, palliative care specialist at Prince of Wales Hospital, consistent with Associate Professor Jackson's report, and of Dr Suresh Badami of Justice Health, concerning her management at present. She is currently being managed at Long Bay Prison Hospital, with access to Prince of Wales Hospital should treatment there be necessary. At present no further treatment is planned, and there is to be a gradual reduction of opioid analgesia and the substitution of methadone over a period of time. 19I have also received a letter from the Reverend Peter Baines, a chaplain at Long Bay Correctional Centre, who has had contact with Ms Forrest. He described the accommodation at Long Bay Hospital as "necessarily basic", because of security requirements, with very little privacy. He noted that Ms Forrest is usually the only female patient in the medical surgical unit, and is not able to converse with other (male) patients. The staff do not have time to converse with her other than in carrying out their normal duties. He described the unit as "an extremely lonely place" for her, noting that, apart from visits by family members and contact with him, there is "little other scope for nurturing interaction." In addition, her mobility is limited as she is wheelchair bound. 20It is well established that the state of health of an offender is relevant to sentence but that, generally, it will be a factor in mitigation only when it appears that imprisonment will be a greater burden on the offender because of it or where there is a serious risk that imprisonment might adversely affect it. The authorities were reviewed by Rothman J, with whom McClellan CJ at CL and James J agreed, in Anastasiou v R [2010] NSWCCA 100, at [22]-[24]. 21It was also recognised in that decision that there may be cases where the appropriate determinate sentence for an offence might result in an offender spending the rest of his or her life in custody. So much was also recognised in Goebel-McGregor v Regina [2006] NSWCCA 390, per James J (with whom Hislop J and I agreed) at [128]. Anastasiou was a case involving an offender with a terminal illness. Goebel-McGregor involved the sentencing of an elderly offender for murder. 22In cases of that kind, particularly those involving a terminal illness, it is open to the Executive Government to allow an offender early release in the exercise of the prerogative of mercy, preserved by s 102 of the Crimes (Sentencing Procedure) Act 1999 and by s 270 of the Crimes (Administration of Sentences) Act 1999. By s 160 of the latter Act, the State Parole Authority also has the power to direct the early release of a prisoner if it is satisfied that it is necessary to do so because of "exceptional extenuating circumstances." 23Of course, it is not within my power to exercise either of those discretions. I must sentence Ms Forrest according to accepted principles, having regard to the gravity of her crime and the need for general deterrence, and taking into account her subjective case. The inevitable result is a sentence with a minimum custodial term extending well beyond her life expectancy. 24For obvious reasons, her crime is objectively very serious. I have regard to her background and her limited criminal history. I also take into account her illness in accordance with the authority to which I have referred. It appears that her condition is being managed appropriately. However, it is clear from the Reverend Baines' letter that it does have a deleterious effect upon the conditions of her custody. That is normally an important matter, justifying a significant measure of leniency. I must take it into account, on the basis that it will endure indefinitely, although I am conscious that there is an area of unreality in doing so, given her prognosis. 25I have regard to the standard non-parole period for murder of 20 years in accordance with the law as it now stands. Having regard to the competing factors to which I have referred, I have decided that the appropriate sentence is imprisonment for 25 years with a non-parole period of 19 years. That non-parole period is a little more than 75% of the sentence, which is the usual proportion. However, I shall backdate the sentence to the date Ms Forrest was taken into custody for this matter, 14 February 2011, leaving out of account a short sentence she served while in custody for the offence of obtaining money by deception to which I have referred. 26Kerry Forrest, for the murder of William Adamson you are sentenced to imprisonment for a non-parole period of 19 years, commencing on 14 February 2011 and expiring on 13 February 2030, and a balance of term of 6 years, commencing on 14 February 2030 and expiring on 13 February 2036. 27I express my deepest sympathy to the family of William Adamson in their loss. ********** 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: 27 November 2014