Citation: R v Terrence David KAIN [2013] NSWSC 638
Court: Supreme Court of New South Wales
Date: 24 May 2013
Judge: Adams J
Background
The accused stood trial for the murder of his mother at their shared home in Goulburn on 27 February 2011. Shortly before 11pm that night, he telephoned his sister and told her he had strangled their mother. Police arrived within minutes and found him at the garage entrance, where he immediately admitted to killing her. The deceased was found in her bedroom, having died from manual strangulation confirmed at autopsy by multiple neck injuries including a fractured hyoid bone and thyroid cartilage.
The accused pleaded not guilty to murder but guilty to manslaughter at the outset of trial. The jury acquitted him of murder and convicted him of manslaughter. The matter then proceeded to sentencing before Adams J.
The accused had a significant psychiatric history, including alcoholism and dementia. His mental condition was central to both the trial verdict and the sentencing assessment.
Legal Issues
- Whether the jury's manslaughter verdict rested on the accused lacking intent to kill or cause grievous bodily harm, or instead on substantial impairment of mind despite such intent being present
- What level of culpability the accused bore, having regard to his psychiatric condition and the nature of the killing
- What sentence was appropriate, accounting for the period of pre-sentence custody, the early guilty plea, and special circumstances arising from his mental condition
Decision
Adams J identified two possible bases for the manslaughter verdict. The first was that the jury found it reasonably possible the accused did not intend to kill or cause grievous bodily harm to his mother. The second was that he did hold such an intention, but his abnormality of mind so impaired his judgment and self-control that a manslaughter conviction was warranted rather than murder. The judge noted that this distinction was a matter for him to resolve at sentencing, because intentional killing carries greater culpability.
After reviewing the medical evidence and the accused's psychiatric history, the judge found that the accused did intend to cause grievous bodily harm to his mother. However, he also found that dementia had caused the accused to lose control over the extent of the violence he inflicted. The judge accepted that the accused was genuinely remorseful and that, but for his dementia, the offence would likely never have occurred.
On the question of sentence, the judge noted that the lengthy period of pre-sentence custody in remand conditions was harsher than sentenced imprisonment, and that the accused's mental condition and protective custody arrangements added further hardship. A starting point of nine years imprisonment was set, to which a 25% discount for the early guilty plea was applied under section 22 of the Crimes (Sentencing Procedure) Act 1999, yielding a total term of six years and nine months. Special circumstances were found to exist given the accused's alcoholism and dementia, warranting an adjustment to the statutory ratio between the non-parole period and the balance of the sentence to allow for a longer period of parole supervision.
Orders Made
- Total term of imprisonment: 6 years and 9 months
- Non-parole period: 4 years
- Sentence commenced: 27 February 2011
- 25% discount applied for early guilty plea pursuant to section 22 of the Crimes (Sentencing Procedure) Act 1999
- Statutory non-parole ratio varied under section 40 of the Crimes (Sentencing Procedure) Act 1999 by reason of special circumstances
Key Takeaways
- Where a manslaughter verdict is explicable on more than one legal basis, the sentencing judge must determine which basis applies, because intentional killing carries greater objective culpability than an unlawful and dangerous act causing death without intent.
- A finding of substantial impairment of mind does not preclude a finding that the accused intended to cause grievous bodily harm; the two findings can coexist and affect culpability in different ways.
- Pre-sentence custody served on remand was treated as more onerous than time served as a sentenced prisoner, given the absence of programs and activities available to sentenced inmates.
- Under section 22 of the Crimes (Sentencing Procedure) Act 1999, a full 25% discount for an early guilty plea was available where the plea was offered well before trial and maintained throughout.
- Special circumstances under section 40 of the Crimes (Sentencing Procedure) Act 1999 justified extending the parole period where an offender's alcoholism and dementia created a genuine need for post-release supervision in the public interest.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 40
Cases:
No cases were cited in the judgment as provided.