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Supreme Court 27 November 2014

R v Kerry Forrest

[2014] NSWSC 1680

HomicideFraud & dishonesty
CRIMINAL LAW SENTENCE MURDER PRE MEDITATED KILLING FOR FINANCIAL GAIN OFFENDER TERMINALLY ILL

Citation: R v Kerry Forrest [2014] NSWSC 1680
Court: Supreme Court of NSW
Date: 27 November 2014
Judge: Hidden J

Background

The offender was convicted of murdering an 84-year-old man in her care. She had secured a position as his carer and personal assistant in September 2009, and over the following months came to control his financial affairs entirely. She misappropriated the proceeds from the sale of his home, spending large sums on poker machine gambling at various clubs.

After the property sale settled in April 2010, the offender and the victim checked into a motel at Campbelltown. The victim was found dead in the motel room on 16 April 2010, having died from morphine toxicity. The offender had administered a large dose of MS-Contin, a prescription pain medication, most likely by crushing the tablets into his food. She called emergency services late that evening, falsely suggesting she believed he might still be alive.

The offender took several steps to conceal the killing: attempting to persuade her own doctor to certify a natural death, seeking to arrange cremation without notifying the victim's family, and giving false accounts to police. She was arrested and charged on 14 February 2011, following a lengthy investigation. The trial was conducted before Hidden J without a jury.

  • What is the appropriate sentence for a premeditated murder committed for financial gain?
  • What weight should be given to the offender's terminal illness as a mitigating factor in sentencing?
  • How should the court apply the standard non-parole period for murder in light of the competing objective and subjective considerations?

Decision

Hidden J characterised the murder as objectively very serious. The offender killed the victim to prevent discovery of her misappropriation of his assets. The killing was premeditated, involved a breach of trust, and was motivated by financial gain. The court also took into account the offender's prior conviction for obtaining money by deception, which occurred in the period before the murder.

On subjective matters, the court considered the offender's disrupted childhood, her long-standing gambling addiction, her limited criminal history, and her age. The dominant subjective issue, however, was the state of her health. She was suffering from incurable cervical cancer with an estimated life expectancy of six to eighteen months at the time of sentencing, along with several other serious conditions. She was confined to a wheelchair and managed at Long Bay Prison Hospital.

Hidden J acknowledged the established principle that serious illness affecting the conditions of custody ordinarily justifies a significant measure of leniency. The court applied that principle while also acknowledging the unreality of doing so given the prognosis. The court noted that other statutory mechanisms, including powers of the State Parole Authority to direct early release in exceptional extenuating circumstances, existed outside the sentencing discretion and were not within the court's power to exercise.

Balancing the gravity of the offence, the need for general deterrence, and the offender's subjective circumstances, the court imposed a sentence of 25 years with a non-parole period of 19 years. The non-parole period was set at slightly above 75 per cent of the head sentence, consistent with the usual proportion, and was backdated to 14 February 2011.

Orders Made

  • The offender was sentenced to imprisonment for 25 years.
  • Non-parole period: 19 years, commencing 14 February 2011 and expiring 13 February 2030.
  • Balance of term: 6 years, commencing 14 February 2030 and expiring 13 February 2036.

Key Takeaways

  • Serious illness affecting the conditions of custody is an established mitigating factor in sentencing, but it does not override the court's obligation to impose a sentence that reflects the gravity of the offence and the need for general deterrence.
  • Where a murderer is terminally ill, the sentencing court may find itself imposing a minimum custodial term that extends well beyond the offender's likely life expectancy. The court acknowledged an "area of unreality" in this exercise but held it was nonetheless required by accepted sentencing principles.
  • The Supreme Court confirmed that the power to direct early release in exceptional extenuating circumstances rests with the State Parole Authority under the Crimes (Administration of Sentences) Act 1999, not with the sentencing judge.
  • Premeditation and killing for financial gain are significant objective factors aggravating the seriousness of a murder, particularly where the killing involved a serious breach of trust placed in the offender by a vulnerable victim.
  • A prior conviction for dishonesty offences, even where old or of limited weight, remains part of the offender's criminal history to be considered at sentencing alongside more recent offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 102
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 160, 270

Cases:
- R v Forrest [2014] NSWSC 612 (verdict reasons)
- R v Forrest [2013] NSWSC 527 (application for permanent stay)
- Anastasiou v R [2010] NSWCCA 100
- Goebel-McGregor v Regina [2006] NSWCCA 390