R v Ian David KENNEDY

R v Ian David KENNEDY - [2008] NSWSC 703 - NSWSC 2008 case summary — Zoe

[16]

14 According to the offender's account to police, during the course of the afternoon, and at a time when he was already subject to the effects of alcohol, he returned to the unit where he gave the deceased a small amount of the 100 milligrams of the amphetamine-based drug "ice" he had recently purchased. The offender said he consumed the rest by injection. The toxicology report obtained as part of the autopsy procedure confirmed the presence of alcohol, a high concentration of morphine, cannabis and a range of other pharmaceutical drugs in the deceased's blood at the time of death. There were also a number of syringes and other drug-taking paraphernalia found by police at the deceased's unit. 15 Associate Professor Starmer gave evidence of the likely effects of intoxication on the offender by his having consumed a cocktail of alcohol and ice. He explained that alcohol fluidises membranes in the central nervous system and allows a range of hormonal interchanges to occur. Dependent upon the amount of alcohol consumed, the period of time over which it is consumed and the lean body mass of the person, alcohol will be productive of varying degrees of drunkenness. In the case of this offender, Associate Professor Starmer estimated that the concentration of alcohol in his blood at the time of the killing fell within the range of 0.19 and 0.36, depending upon whether he had consumed 10 or 15 schooners of beer and dependent upon his body weight being 70 or 80 kilos. The professor confirmed what is perhaps obvious, namely that aggression and violence are frequently associated with alcohol use and abuse. He also gave evidence as to the effects of crystallised methylamphetamine ("ice") which he says is a particularly pure and potent form of the drug methylamphetamine. He said that that drug mimics the action of the natural hormones raw adrenaline and dopamine, the latter effecting body movement. He said people using the drug can react more violently to a set of circumstances where, were they completely drug-free, they may not have reacted at all. 16 Associate Professor Starmer spoke of the way in which a person using both drugs and alcohol to excess can build a tolerance to the drugs. It would appear from the amount of alcohol that the offender consumed preceding the assault, namely something in the order of 10 to 15 schooners of beer, and something in the order of 100 milligrams of methylamphetamine, that he had a high tolerance to both drugs. Associate Professor Starmer also confirmed that alcohol is a central nervous system depressant and methylamphetamine is a central nervous system stimulant and that when the two are combined they may interact with each other such that the person may appear less intoxicated by alcohol than the amount of alcohol actually consumed. The police investigation 17 The investigation into the homicide commenced on 21 July 2006 as a result of Ms Amber Cordez reporting to police that the offender had confided in her the previous day that he had killed the deceased some weeks earlier. At this time the police were unaware of any homicide or possible homicide. There was no report of the deceased as a missing person. (I also note that within what must have been a very short time after the deceased's death, the offender telephoned a woman in whose company he had been earlier in the day and told her that he had killed a man and needed somebody to talk to. She did not, however, take the call seriously and did not go to the police because in her words she "thought he was talking rubbish" and that he was just trying to attract her attention). 18 On 26 July 2006, 27 days after the death of the deceased, police gained entry to the deceased's unit. The deceased's body was located slumped over a chair in one of the bedrooms, wrapped in a doona which was in turn tied with masking tape.

[18]

20 I am satisfied that it was the offender's compromised capacity to recall with clarity both the events that culminated in the fatal assault and the sequence in which the injuries were inflicted, as distinct from any attempt on his part to conceal what he did or to avoid responsibility for his actions, as the explanation for the inconsistency between his version of events to police on arrest and the results revealed on autopsy (to which I will refer shortly). 21 It is important to emphasise that I am also satisfied that despite the offender's inability to explain the timing or order of some of the events leading up to and including the assault on the deceased, and despite the incongruities between his account of the how the injuries were inflicted and the forensic evidence, there was no attempt on his part to minimise his actions or to create a scenario where the deceased bore any responsibility for the assault. To the contrary. I consider that the course and content of the interview which extended over many hours demonstrated a concerted effort on his part to give a candid and comprehensive account of his conduct (as he was able to recall it), including the confronting details of his attempts to deal with the deceased's decomposing body over the course of many weeks, and his ultimate decision to wrap and tie the body to prevent the spillage of body tissue and fluids. I accept that his conduct at the time of the killing, including the way in which he dealt with the body, reflected a disordered state of mind and not a morbid or perverse fascination with the crime or the crime scene. I accept that the offender was genuinely struggling with how to deal with the consequences of his actions. I accept that he was unable to deal in any responsible way with the body of the deceased. He is not to be punished for this since it does not, in the particular circumstances of this case, aggravate the objective criminality constituted by the killing. He told police that he had vague thoughts of trying to get rid of the body somehow but he could not do it. He said that he was just waiting to "get caught". 22 I am also satisfied that the detail provided by the offender in the record of interview reflected a disarming degree of acceptance of criminal responsibility for the death of the deceased. This, in addition to his preparedness to plead guilty to manslaughter in 2007, and again on the first day of the trial, is entirely consistent with genuine remorse and contrition. I propose to give this appropriate weight in the calculation of sentence together with some additional allowance for the fact that despite having confessed to Ms Cordez that he had killed the deceased (a confession which he delivered in a floridly agitated state), without his full and frank admissions, the police investigation would have been hampered and the case against him not as overwhelming as it proved to be. The forensic evidence

[20]

24 It was Dr Duflou's opinion that the deceased was killed by a combination of blunt force trauma to the head and stab wounds. He was of the certain view that none of the injuries in isolation would have been fatal. 25 It was also Dr Duflou's view that the extensive fracturing to the skull, which passed in a single fracture line across the back of the head ending at the left temple, was sustained in an area where the skull had been previously opened surgically and had since healed. He accepted that the surgery to the skull rendered that area of the deceased's anatomy more vulnerable to trauma. Dr Duflou also gave evidence that the fracturing of the mandible was associated with extensive bruising to the soft tissues of both the face and skull in that region. The fractures to the ribs were in a line. 26 Essentially, in Dr Duflou's view, the complex of injuries to the skull were likely to have been sustained as a result of a large, heavy, flat and featureless object (like a television) being applied under force to the head. The fracture to the hyoid bone was also likely to have been sustained as a result of direct trauma with a large heavy object as there was no indication of strangulation or a similar mechanism. However, Dr Duflou favoured the probabilities that the head was on a hard surface like the ground at the time the injuries were sustained. He did not regard any of the injuries to the skull or the ribs as having been sustained by the deceased falling. He was firmly of the view that it was unlikely that any of the fractures, or any extension of the fractures, were sustained post-mortem. 27 In short, while he did not regard the injuries as consistent with the deceased being upright and having a television thrown at him, he did regard it as possible for a single blow to the head to have caused the spread of injuries he observed in the region of the head. The rib fractures being on both sides of the body were also consistent with the deceased being on the ground at the time force was applied to the chest region and that this was likely to have been a separate episode of trauma. So far as the stab wounds were concerned, he considered that they were likely to have been applied with moderate force. He noted that the knife did not penetrate the bony structure of the back to any extent. 28 Although the offender claims deficits in his memory of the night, he claimed to remember that at one stage he picked up the television and threw it at the deceased and that the deceased fell to the ground. The offender said that the deceased then got up and that it was only then that he lunged at him with a knife and stabbed him.

[21]

29 The scientific officers who attended the unit located many areas of blood staining throughout the living area and in the bedroom where the deceased's body was found. They also located the knife used to inflict the stab wounds and the damaged television set. This evidence, whilst serving to locate in general terms the site of the stabbing and the assault with the television, did not advance the Crown case at trial as to the order in which the injuries were inflicted or the precise mechanism and the degree of force that was used. 30 I am satisfied that the offender's account of the attack is unreliable and unacceptable since it is in large measure inconsistent with the forensic evidence. While I do not consider that he has deliberately set out to deceive police or minimise his responsibility for the deceased's death, the fact remains that the spread and severity of the injuries that were revealed on autopsy, and the spread and pattern of blood in the unit, were consistent with a brutal and unprovoked attack. I accept however that the objective gravity of the offence is diminished by the fact that there was no entrenched animosity between the two men and that the fatality is largely, if not wholly, due to the offender's state of intoxication and his diminished ability to control an outburst of aggression, as distinct from his conduct being the result of deliberation. The jury verdict is consistent with that view. The fact that within a very short time of arriving at the unit where the confrontation with the deceased erupted into violence, the offender was involved in another physical altercation with a man he was drinking with fortifies my conclusion that the offender was exhibiting recognised hallmarks of alcohol-fuelled aggression, likely to have been exacerbated by his having injected ice. The expert evidence 31 Associate Professor Reid, who gave evidence at trial, is a professor of neuropsychology at the Prince of Wales Medical Research Unit. He performed a neuropsychological assessment of the offender. Importantly, he was provided with a PET scan of the offender's brain prepared by Dr Lowe, a neurologist, and interpreted by a specialist radiologist, Dr Choong. The scan confirmed organic brain damage. He was also provided with a copy of a report from Associate Professor Starmer, to whom I have already made reference, and the results of psychometric testing undertaken by Mr Diamond. Additionally, he was provided with reports from two psychiatrists, Dr Allnutt and Dr Westmore. 32 The purpose of the neuropsychological assessment was to examine the offender's cognitive function in order to determine whether he suffered from any impairment of the brain consistent with the neurologist's findings of brain damage. Associate Professor Reid came to the view that the offender was a man of average intellectual ability and that, despite the organic brain damage, there was no significant impairment of his intellectual functions. The specific deficits revealed on neuropsychological assessment were in the areas of memory and cognition. It was the professor's view that the abnormalities were permanent when the offender's current functioning was compared with his pre-morbid intellectual ability. While Associate Professor Reid was unable to find any objective evidence of poor impulse control, he noted that the offender's descent into serious drug and alcohol abuse from an early age was, from a behavioural perspective as distinct from the test data, at least partly explained by volitional defects. 33 Dr Lowe, a consultant neurologist, considered the results of the testing undertaken by Mr Diamond and Associate Professor Reid and regarded the test results as consistent with the abnormalities in the brain revealed on the PET scan. In Dr Lowe's view, the abnormalities were related to impulse control. He described this as the degree to which inhibition and disinhibition co-relate. He regarded the likely behavioural display reflected in the offender's conduct on the day of the killing as not uncommon in a person after 20 years of alcohol and drug abuse. He regarded the organic brain damage and the associated tendency to disinhibition as likely to be accentuated by the effects of alcohol and other drugs. He said: "…if you have an underlying basis of that you just have to add alcohol and drugs on top of that and that would obviously trigger or accentuate any underlying change.."

[26]

42 In the present case, however, there is a confluence of drug and alcohol addiction and related brain damage which, in my view, is not productive of the same considerations as those to which his Honour the Chief Justice refers. That is not to say that the offender's brain damage is rendered irrelevant. Dr Lowe's evidence is supportive of there having been some degree of causality between the underlying condition and the loss of self control. That said, I am satisfied that the overwhelming explanation for the assault was the offender's self-induced intoxication. 43 In summary, while the offender's intoxication is relevant to an assessment of the extent to which his actions were the product of deliberation (and in this case I am satisfied that there was no premeditation of any kind) his drug and alcohol use over an extended period of years, to the extent that it culminated in such a loss of control as to result in the loss of life, is not such as should elevate considerations of leniency above those which dictate the imposition of a sentence that reflects appropriate measures of punishment and retribution. An unbroken line of authority in this Court when sentences for manslaughter or murder are imposed or under review emphasises that the taking of human life is regarded by judges, as it is by the community, as a matter that calls for salutary judgment and denunciation. 44 It is also well recognised that while reference to decisions where sentences for manslaughter have been imposed assists in providing a frame of reference, much depends upon the particular features of each case (R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 at [189]-[190]). Given the acknowledged difficulty of establishing a sentencing pattern, comparisons between cases where the legal and factual basis for the manslaughter are similar are likely to be the most useful. 45 I have been assisted in that regard by a schedule of cases prepared by Mr Siva, counsel who appeared at trial and on sentence, with a brief summary of the facts and the salient features of each offender. It is not necessary to refer to them all save as to say that the case of R v Hamshere [2005] NSWSC 1319 has similarities to the present case. A matter of important distinction however is the fact that in Hamshere the fatality was the result of a single stab wound delivered in the course of a drunken fight between friends that escalated out of control whereas, in the present case, I am satisfied that the attack was unprovoked and involved sustained and separate acts of violence in circumstances where it would appear that the deceased was relatively defenceless. In addition, Hamshere pleaded guilty at the first opportunity (a plea that was obviously accepted by the Crown) and received a 25 per cent discount. Those differences aside, the sentence imposed in that case - namely a non-parole period of 3 years against a term of 5 years - in the context of a range of sentences extending upwards from that point does provide some frame of reference for the imposition of sentence in the present case.

[29]

50 It is of some concern to me that the offender was first seen by the Alcohol and Other Drug Services at Long Bay as recently as 26 May 2008 for the purposes of the preparation of a report. I am however encouraged by the fact that he has self-referred to the services since that time and has expressed an awareness of the extent of his addiction and its devastating consequences and a willingness and a desire to be drug-free. Mr House notes that the offender has made several attempts to address his addiction in the past by attending Odyssey House and William Booth House, although it would appear that his attempts at remaining drug-free were relatively short-lived. Although he informed Mr House that his self-esteem and self-worth improved when he was drug-free he was unable to sustain his abstinence. He said he was at a loss to explain his relapse. Mr House observed that where a person suffers from poor self-esteem and self-worth success is often difficult to cope with and, in the result, that sustained recovery is less likely to be achieved within the first few attempts and that relapse itself appears to be part of the recovery process. 51 Mr House was of the view that: "Mr Kennedy would benefit from continued intervention and an opportunity to engage in further counselling and groups to increase his awareness and take responsibility for himself and attempt to rehabilitate himself with the help of the competent and dedicated staff within Corrective Services. It is my recommendation that Mr Kennedy continue AOD counselling whilst incarcerated and attend the Ngara Nura pre-release program when that time comes and when released that he continue his treatment and transition into the community through Glebe House as well as follow the direction of Community Offender Services." 52 I should also note that whilst the offender has lived independently of his family since he was 16, he has the support and love of his mother and his sister and since his incarceration has had regular jail visits with them. His mother gave evidence before me and confirmed the content of her letter to me where she said: "…since he has stopped using drugs and alcohol we have witnessed Ian becoming a loving son and brother again who realises that when you commit a crime like this the whole family serves the sentence. At the end of his jail sentence his family will be here for him." 53 I can only hope that the offender honours the support that his family has given him over the last two years and that he appreciates the extent to which he will not only harm himself but his family should he relapse into drug and alcohol dependence and the lifestyle that that entails.

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