R v Swan; R v Kimura

Supreme Court of NSW|2016-12-13|Before: Adams J

Solicitors: Solicitor for Public Prosecutions (Crown) Blair Criminal Lawyers (Offender Swan) Legal Aid NSW (Offender Kimura) File Number(s): 2013/00117929; 2013/00117926 Publication restriction: Nil

The evidence at trial

The Crown case at trial was that there was an agreement between the two offenders to assault and rob Mr Kormilets in his apartment and inflict really serious bodily injury upon him. Both men participated in the agreement to assault and rob Mr Kormilets and the assaults were inflicted with the intent to inflict grievous bodily harm.
The Crown relied upon the following evidence at the trial in support of its case that the two men who assaulted and robbed Mr Kormilets were the two offenders Mr Kimura and Mr Swan.
At 12.28am on the morning of 15 April 2013, the two offenders were captured on closed circuit television ("CCTV") entering the Kendall building in Redfern and pressing a lift button to go to Level 3. There was no dispute that the two men depicted in this footage were the offenders Mr Kimura and Mr Swan. Neither of the offenders lived in that building.
At approximately 1:58am, the two offenders were captured on CCTV leaving the Kendall building by the stairs from the first floor to the ground floor. Mr Swan is seen carrying a white bag in his left hand. Mr Kimura is seen shaking his arm.
At approximately 2am, Mr Kormilets telephoned police at Redfern Police Station. His call was answered by Constable Peter Jordan. Mr Kormilets said to Constable Jordan, "Help, I've been robbed, I've been robbed." Constable Jordan asked, "Where are they now and what did they look like?" Mr Kormilets replied, "I don't know, it was dark. I've been robbed." He said, "They came into my house and they hit me. They robbed me."
At approximately 2:05am, police arrived at the Kendall building. They were captured by CCTV at the ground floor lifts. Senior Constable Matthew Smith spoke to Mr Kormilets, who told him, "Two men came to the door but I did not answer. I stood in the doorway and then they came in and one was holding a butcher knife. They punched me and took me into that room." Senior Constable Smith said, "So when they took you into the bedroom what happened?" Mr Kormilets said, "They just punched me on to the bed and punched me to my head and my chest and took my wallet and television." When Constable Smith asked Mr Kormilets ""Did you open it or was it locked?" Mr Kormilets said "No, not locked. It was closed. I did not answer and they come in."
At approximately 7:32pm on the night of 15 April 2013, CCTV captured the offender Mr Swan re-entering the Kendall building with two women.
At approximately 9:27pm, the offender Mr Swan was captured on CCTV leaving the Kendall building with the television stolen from Mr Kormilets' unit. The television was covered with a tablecloth. He was accompanied by his then girlfriend Marlene Wightman. Ms Wightman did not give evidence in the trial as she could not be located.
At 8am on 16 April 2013, police attended the premises of Greg Colyer in Redfern and saw the television stolen from Mr Kormilets. Mr Colyer gave evidence at the trial that Mr Swan stayed at his unit from time to time. On Saturday, 13 April 2013, Mr Swan brought another man, called "T", to Mr Colyer's place. There was no issue at the trial that "T" was the offender Mr Kimura. Mr Kimura then stayed on Mr Colyer's lounge during the weekend of 13 April 2013 and 14 April 2013. Mr Colyer gave evidence that Mr Swan was staying "on and off" in the same period, sometimes going to visit his girlfriend or a friend.
Both offenders were arrested together in the morning of 16 April 2013 exiting an apartment at the Kendall building. At the time of his arrest, Mr Swan had a black bag containing a bottle of Chivas Regal and a bottle of Johnnie Walker, both of which had been stolen from Mr Kormilets. At the time of his arrest, Mr Kimura had a piece of paper with the word "Swannie" and a mobile telephone number written on it. Mr Kimura later participated in an ERISP with police in which he denied any involvement in the offence.
Some time on the afternoon of 16 April 2013, a search warrant was executed at the unit occupied by Mr Colyer. A number of items were seized. The clothes worn by Mr Swan in the early hours of 15 April 2013 were found in a washing basket, the clothes worn by Mr Kimura in the early hours of 15 April 2013 were found in a black bag in the cupboard in the lounge room, Mr Kormilets' television was found in the lounge room and Mr Kormilets' wallet was found concealed in the lounge room.
Examination of Mr Kormilets' unit revealed Mr Kimura's fingerprints on either side of the doorframe at the entrance to unit.
A DNA profile matching that of Mr Kormilets was found on the waistband of the shorts worn by Mr Swan at the time of the offence, and seized from Mr Colyer's unit, and on the tongue of one of his shoes. That DNA was found in an area of those items of clothing that also tested positive for the presence of blood.
Although Mr Kormilets never recovered from his injuries sufficiently to give a written statement to police, police recorded an interview with him in the Emergency Department of St Vincent's Hospital soon after the assault. His son Dmitri Zitserman interpreted from Mr Kormilets' Russian into English. Mr Kormilets' evidence was that he was attacked by two men. He was unable to describe them in any detail nor to differentiate between them, except to say that they were "white" and that "the big one" had hit him "very, very, very hard". He referred at other times to "two men," "they" and "two males". It is noted that Mr Swan is Aboriginal and Mr Kimura is Maori. Both men could be described as "big".
With respect to the manner in which the offenders entered Mr Kormilets' unit, the interview was as follows: "Dmitri (son) to Alex (victim): 'He was sleeping, they start knocking. He didn't open it. And suddenly they were in the room. They got through the balcony? I don't know.' Alex (victim) to Dmitri (son) 'No.' Dmitri to Alex: 'No? How they open the door?' (In Russian) 'How did they open the door?' Alex to Dmitri: Indecipherable Dmitri to Ryan: 'Somehow they open the door.'"
Both offenders gave evidence at trial.
Mr Swan gave evidence that he was not present at the time of the commission of the offence. He agreed that he attended the Kendall building, as depicted in the CCTV footage, and went first to Unit 310. He then spent some time with his then girlfriend Ms Wightman, including the period of time in which the offence occurred. He gave evidence that he later left the building in the company of Mr Kimura. He denied any involvement in the offence.
Mr Kimura gave evidence that he entered the Kendall Building with Mr Swan and proceeded to Unit 310, where Ms Wightman lived. After spending time in Unit 310, he then went to another apartment. He told the jury that when he returned to Unit 310 there was a conversation between Mr Swan and Ms Wightman concerning a robbery that had occurred a week before in the Kendall building. Mr Swan then obtained a "machete" and went over the balcony with the machete. Unit 310 was directly above Unit 210, where Mr Kormilets lived.
Mr Kimura gave evidence that he remained in Unit 310 for approximately 20 minutes after Mr Swan had gone over the balcony. He then went down the stairwell to Unit 212 to visit a friend. While he was waiting outside his friend's apartment, he heard noises coming from Mr Kormilets' apartment next door. He knocked on the door of Mr Kormilets' apartment, Unit 210. He then tilted his head and placed his ear to the door and his hands on each side of the doorframe to ascertain what he had heard (consistent with the location of his fingerprints). Mr Swan opened the door. Mr Kimura entered the apartment and saw a person on the floor, bleeding. Mr Swan told him to watch over Mr Kormilets. After watching over Mr Kormilets for a number of minutes, he left the apartment in company with Mr Swan. They left the building and returned to Mr Colyer's place nearby.
In her closing address, the Crown Prosecutor adopted the evidence given by the offender Mr Kimura to the extent that it implicated Mr Swan. The way that the Crown case was put to the jury meant that the jury need not be satisfied beyond reasonable doubt that both men inflicted the injuries in order to find them both guilty.
A significant issue at trial was causation. In circumstances where Mr Kormilets was an elderly man who died some eight months after the assault with a renal carcinoma, the issue arose as to whether the assault was a "substantial and operating cause of death": Royall v R (1991) 172 CLR 378; [1991] HCA 27. A number of expert witnesses were called at trial addressing this issue. The jury's verdict of guilty to murder shows that it was accepted that the actions of the offenders caused the death of Mr Kormilets.
Mr Kormilets sustained a number of serious injuries on the night that he was assaulted and robbed by the offenders. They included bleeding on multiple areas of his brain, bruising to the brain, facial fractures, jaw fracture, fracture of the sternum, multiple rib fractures with flail sections, haemopneumothorax, a renal laceration and bruising to both lungs and to the retroperitoneum.
Although he was able to speak with police on the night of the assault and the following day, Mr Kormilets suffered from cognitive decline secondary to traumatic brain injury from which he never recovered. He was not able to assist police thereafter. He was doubly incontinent and largely bedridden until he died in December 2013.

Fact-finding on sentence

Ascertaining the facts in this matter requires consideration of the evidence given at trial by both offenders in the context of the evidence adduced overall. Neither offender gave evidence on sentence. In relation to this fact-finding exercise, I have been assisted by the written and oral submissions of counsel.
The view of the facts that I adopt for the purpose of this sentencing exercise must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 378; Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 12-13. Any aggravating factor must be established beyond reasonable doubt, whereas any mitigating factor upon which either of the offenders relies needs only be established on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. Consistent with the jury verdict I am to sentence the offenders on the basis that they agreed to assault and rob Mr Kormilets and inflict grievous bodily harm on him.
At the proceedings on sentence, it was submitted by counsel for Mr Swan that there were five issues upon which I would need to make findings of fact that were not apparent from the verdict of the jury.
The verdict of the jury indicates that the version given by Mr Swan was rejected. At the sentence hearing the reliability of the hearsay evidence of Mr Kormilets was challenged by counsel for Mr Kimura and the reliability of the evidence of Mr Kimura was challenged by counsel for Mr Swan. Significantly, the Crown Prosecutor submitted that I would accept the evidence of Mr Kimura in all respects unless it was inconsistent with the jury's verdict. Consistent with this, it was submitted, I would find that Mr Kimura was not involved in the physical assault upon the deceased.
The first issue upon which I am required to make a finding of fact was the timing of the formation of the agreement. I am satisfied that the agreement was not formed any earlier than when the offenders were in Unit 310 shortly before the offence was committed. In making that finding, I do rely in part upon the evidence of Mr Kimura in that he was the only person to give evidence of any conversation concerning a prior robbery in the unit below, Unit 310. I accept his evidence because it is consistent with other evidence in the case, including that there was evidence at trial that Mr Kormilets was in fact the victim of a break and enter the previous week, that CCTV footage shows that the two men did go to the level where apartment Unit 310 was and that Mr Swan also gave evidence that the two men were together in that room at that time. I am satisfied that both men agreed at that time to assault and rob Mr Kormilets. I do not accept the evidence of Mr Kimura that he happened to be outside Mr Kormilets' apartment when Mr Swan opened the door and let him in.
The second issue is whether the two men gained entry by the front door of the unit or whether Mr Swan gained entry to the unit via the balcony and then let Mr Kimura in. The evidence before me is that Mr Swan was a fit 31-year-old man at the time of the offence, whereas Mr Kimura was a 50-year-old man who was no longer able to work because of an injury sustained some years ago. The evidence of police who attended the scene was that the balcony door was open. The evidence of Mr Kormilets was that he was somewhat confused as to how the two men gained entry. Although I do not form the view that the offence is made more or less serious by whether the two offenders gained entry via the front door or through the balcony, I am satisfied that Mr Swan gained entry through the balcony and opened the door for Mr Kimura. I am also satisfied that he had a weapon that Mr Kormilets described as a "butcher's knife" and Mr Kimura described as a "machete".
The third issue is whether both men were present in the unit at the time that Mr Kormilets was assaulted. The evidence of Mr Kormilets was that he was confronted by two men. In relation to this issue, counsel for Mr Kimura relied upon the unreliability of the evidence of Mr Kormilets. He submitted that Mr Kormilets was an elderly man who had been awoken from his sleep by an intrusion into his home. He would have been half-asleep and groggy. The room was dark. He would have been distressed. He was making his observations while the subject of a serious assault. English was not his first language. In reliance upon these factors, Mr Bruce submitted that Mr Kormilets' descriptions of two men entering the room together and of two men assaulting him were unreliable and that no weight should be placed upon them.
Although it was submitted on behalf of Mr Kimura that I would find that Mr Swan was alone in the unit when Mr Kormilets was assaulted and that Mr Kimura did not arrive until much later, it was submitted on behalf of Mr Swan that acceptance of that version relied upon accepting the evidence of Mr Kimura. Counsel for Mr Swan relied upon the fact that, when Mr Kimura gave evidence at trial, he admitted on oath to telling police "41 lies" in his ERISP. In those circumstances, a selective account based upon his evidence could not be accepted beyond reasonable doubt.
I am not satisfied on the balance of probabilities that Mr Kimura entered the apartment only after Mr Kormilets had been assaulted. The sole evidence to support that version of events comes from Mr Kimura. I do not accept his version of how he came to come to be in the unit. Aspects of his version of events are inherently implausible, including his explanation as to why his fingerprints were found on Mr Kormilets' doorframe. Rather, I am satisfied beyond reasonable doubt, based upon the hearsay evidence of Mr Kormilets and the other circumstantial evidence in the case, that the two offenders were both in the unit at the time that Mr Kormilets was assaulted.
The fourth issue was whether both men assaulted Mr Kormilets or only one or the other did. Counsel for Mr Swan conceded that there was evidence capable of establishing to the requisite standard that Mr Swan had assaulted the deceased. I am satisfied beyond reasonable doubt that Mr Swan assaulted Mr Kormilets based on the physical evidence. A small bloodstain was found on the waistband of the shorts that Mr Swan was wearing on the night of offence. There was another, smaller, bloodstain on the tongue of one of his shoes. DNA was found on the same areas as the bloodstains with a profile consistent with that of Mr Kormilets.
I am unable to be satisfied beyond reasonable doubt that Mr Kimura physically assaulted the deceased. This is because of the absence of any physical evidence connecting him with the assault and the fact that it would not have required two men to have overpowered Mr Kormilets. I accept the submission of Mr Dennis on behalf of Mr Swan that the injuries to the deceased were not such as would have created a great deal of blood. He distinguished the present case from a stabbing or similar offence and submitted that just because there was no blood found on Mr Kimura's clothing does not mean he did not strike blows as well. Notwithstanding this, the fact remains that there is no positive evidence of this that would enable me to make such a finding beyond reasonable doubt, besides the hearsay evidence of Mr Kormilets. This finding is consistent with the Crown submission on sentence, although I was not bound to accept that submission.
The fifth and final issue was whether both men or only one of them ransacked the apartment in their efforts to locate items to steal. The evidence of police when they attended the apartment was that it had been ransacked. There is insufficient evidence for me to make any finding as to whether one or the other of both of the offenders ransacked the apartment looking for property to steal. The evidence was that both men were found in possession of stolen items in the days following the offence. Mr Swan sold the television to Mr Colyer and was found on arrest with bottles of spirits stolen from Mr Kormilets. Mr Kormilets' wallet was found at Mr Colyer's unit near where Mr Kimura was sleeping at that time.

Objective seriousness

Having made the above findings of fact, I turn to assess the objective seriousness of the offence. It is necessary to make a finding regarding the seriousness of the offence relative to the range of circumstances that can constitute the crime of murder. The range of offending for the offence of murder is very broad. Despite this, it is important to note that all murders are extremely serious breaches of the law.
The Crown submitted that I would find the objective seriousness of the offending of Mr Swan to be higher than that of Mr Kimura. The Crown submitted that the circumstances of the murder were brutal, callous, and horrific and showed considerable heinousness. In relation to Mr Swan, the Crown submitted that a sentence "at the upper end of the determinate range" should be imposed. The Crown did not submit that the offending is of such an extreme degree of heinousness as to lie in the "worst case" category, such that I would be required to impose a sentence of imprisonment for life.
Counsel for Mr Swan conceded that the matter could not be characterised as falling below the mid-range of objective seriousness. He submitted that it would be characterised as being at or above the mid-range of objective seriousness. Counsel for Mr Kimura submitted that the objective seriousness for Mr Kimura would be just below mid-range.
It was agreed by counsel for both Mr Swan and Mr Kimura that there are a number of aggravating factors affecting the seriousness of this offence: s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). They are as follows: 1. The offence was committed in company: s 21A(2)(e). 2. The offence was committed in the victim's home: s 21A(2)(eb). 3. The offence was committed on a vulnerable victim in that he was very old: s 21A(2)(l) 4. A weapon was produced although not used to inflict any injuries: s 21A(2)(c). The precise weapon was never recovered and was thus not tendered at the trial. No doubt Mr Kormilets was put in fear when he saw this weapon, which he described as a "butchers knife", but it was not used to inflict any injury.
Although it was agreed during the proceedings on sentence that the offence was also aggravated by being committed for financial gain, I am not satisfied that the offence of murder was committed for financial gain. The agreement was to assault and rob the victim and in so doing to inflict really serious bodily injury. The offence of murder was committed in the context of a robbery, but I am not satisfied it was committed solely for financial gain. Rather, it was a gratuitous and cowardly attack on a vulnerable victim.
Although counsel for each offender conceded that there was some degree of planning, I accept that it was minimal and not such as would warrant a finding of aggravation.
The objective seriousness of Mr Swan's offending was aggravated by the fact that he was on conditional liberty at the time of the offence: s 21A(2)(j). As at 15 April 2013, Mr Swan was on bail for offences of goods in custody, disposing of stolen property and possessing a prohibited drug. He was also on bail for an offence of assaulting a correctional officer, with which he had been charged on 12 November 2012. Mr Swan was subject to two good behaviour bonds imposed at the Downing Centre Local Court on 2 November 2012 for matters of goods in custody and custody of a laser pointer in a public place.
A further significant factor relevant to my finding of objective seriousness is the fact that at all stages of this matter the Crown has maintained that the relevant intention was to inflict grievous bodily harm, rather than to kill. It was at no time any part of the Crown case that there was ever any intention to kill Mr Kormilets.
It has been held that an offence involving an intent to kill is generally more serious than one involving an intent to inflict grievous bodily harm: R v Hearne (2001) 124 A Crim R 451 at [34]; Apps v R [2006] NSWCCA 290 at [49]. Although the objective seriousness of the offence is likely to be greater where there is an intention to kill, it does not follow that the objective seriousness of offences where the intention is to cause grievous bodily harm will fall below the mid-range: Versluys v R [2008] NSWCCA 76 at [32].
In assessing the objective seriousness of this matter, I have had regard to all of the above factors. This was a serious offence of murder. An elderly man was assaulted severely in his own home by these two offenders for no other motive than to assault him and rob him of his belongings. His home was ransacked. He suffered from his injuries and died eight months later. Although there was no intent to kill Mr Kormilets, I nonetheless would find that the objective seriousness of this offence is just above the mid-range of seriousness for the offence of murder.
Although both offenders are equally liable for the actions of the other in the context of the joint criminal enterprise on the basis of which they have been convicted, that does not mean that their moral culpability is the same. As Latham J observed in KR v R [2012] NSWCCA 32 at [19], "…participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct". As her Honour went on to observe at [22]: "Culpability….is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment."
On the basis of the facts that I have found on sentence as set out above, I am satisfied that Mr Swan played a greater role in the offence than Mr Kimura and is to be sentenced on that basis. I will return to the respective moral culpability of each of the offenders later in these reasons.

Subjective circumstances of the offender Swan

Mr Swan is now 34 years old. He was 31 years old at the time of the commission of this offence.
On behalf of Mr Swan were tendered a psychiatric report under the hand of Dr Jonathon Adams, forensic psychiatrist, and a psychological report under the hand of Yiota Zingirlis, forensic psychologist. Neither report suggested any mental illness, although some past anxiety and past bouts of major depression were noted. In circumstances where Mr Swan did not give evidence, all of the material before the Court regarding Mr Swan's personal circumstances is contained in those reports. The Crown did not challenge their contents.
Dr Adams reported that Mr Swan told him that he had never been married but that he has five children between the ages of eight and 18 with four different partners. His two oldest children regularly visit him in custody.
Mr Swan described himself as being "traumatised" as a result of his upbringing. Mr Swan reported that his parents separated before he was born. Both of his parents are Aboriginal and he identifies as Aboriginal in terms of his cultural heritage. His parents are both still alive. He was their only biological child but believes that he has 15 or 16 half-sisters and "probably about eight" half-brothers. He was born in Inverell. He remained with his mother until the age of seven, at which point he went to live with his father on a mission in Moree. He states that, "My mother more or less gave me away." He lived with his father until he was 12 or 13 years old, when he "started taking off from home".
Mr Swan stated that both his mother and his father were physically abusive towards him and that he was regularly physically beaten. He stated that he did not feel loved by either of his parents. He described himself as being "independent by the age of seven", feeding himself and caring for himself. He reported that he could drive a car by the age of seven. Mr Swan told Dr Adams that he was "expelled from every school in New South Wales" due to behavioural problems as a child. At one point he spent a year at an Aboriginal boarding school in Bellbrook.
Mr Swan has worked intermittently over the years on a casual basis at times when he was not in custody, usually in labouring and landscaping.
Mr Swan told Dr Adams that the longest period that he has spent in the community as an adult was the period of time prior to the commission of the current offence. He stated that, leading up to the offence, he was using intravenous heroin, methylamphetamine, and methadone as well as smoking approximately 50 "cones" of cannabis per day. He considered that he was usually intoxicated on a daily basis during this period.
Dr Adams describes Mr Swan telling him that he felt "devastated" and "shattered" after he was found guilty at trial. He disagrees with the outcome of the trial and considers himself not guilty of the offence. He expressed concern about the possible outcome of the sentence proceedings and his desire to appeal. Clearly, I am not able to take into account any remorse.
Dr Adams' opinion was that, although it is difficult to separate the direct effects of substance and alcohol abuse on someone's emotional state from an underlying mood disorder such as recurrent major depression, on the basis of the information available it was his view that it is likely that Mr Swan has suffered from recurrent episodes of major depression in the context of a severe substance use disorder. He stated that the combination of his emotionally unstable personality structure, maladaptive coping strategies, likely recurrent major depressive disorder and severe substance use disorder has had a deleterious impact on his overall functioning. Dr Adams suggested a clear link between these issues and his long-standing history of criminal offending. Dr Adams opined that Mr Swan's mental state was relatively stable around the time of the offence in April 2013.
Ms Zingirlis, psychologist, interviewed Mr Swan for the purpose of performing psychometric assessments. Her summary of Mr Swan's background is similar to that provided to Dr Adams. He gave accounts of being hit on the head and "bashed like a man" when he was "only a kid" by his father. Juvenile Justice records from 1995 show that he was identified to the Department of Community Services as a child at risk by youth workers at that time. He began living on the streets from the age of 12 or 13 years. He began stealing as an adolescent to obtain food during times of homelessness.
Mr Swan considered that physical abuse, neglect, changes in primary caregivers and feelings of abandonment affected his mood and self-esteem from a young age. He felt that "no one cared". He reported "multiple" head injuries from being physically assaulted by his father when he was young, as well as by other inmates during periods of imprisonment.
Ms Zingirlis described Mr Swan's current intellectual functioning as being within the borderline range, performing as well as or better than 8% of same age peers. This was worse than a previous assessment of intelligence carried out in November 1997, which indicated that Mr Swan was performing equal to or better than 19% of same age peers. Mr Swan is illiterate and could only engage in limited phonetic reading during assessment. A test of his verbal reasoning ability revealed that Mr Swan performed as well as or better than 7% of age-matched peers. Assessment of non-verbal reasoning was somewhat better. Ms Zingirlis noted that his poor performance on verbal tasks needs to be interpreted in the context of his poor schooling history, low literacy and cultural background.
Mr Swan's criminal history does not assist him. His first convictions were in the Children's Court between 1996 and 1999. Those matters were for break and enter, illegal use of a motor vehicle, assault police and assault occasioning actual bodily harm. He has been sentenced to short terms of imprisonment on a regular basis since reaching adulthood. His criminal history shows that he was imprisoned in 2002, 2003, and 2004 for offences of assault occasioning actual bodily harm. He was also sentenced to terms of imprisonment for assaults in 2007 and 2013. In 2007 and 2012, he was sentenced to imprisonment in relation to property offences.
It was submitted on behalf of the Crown that Mr Swan's criminal history is an aggravating factor within the meaning of s 21A(2) of the Crimes (Sentencing Procedure) Act. Mr Swan's criminal record cannot be given such weight as to lead to the imposition of a sentence disproportionate to the gravity of this offence: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242. Despite this, as the High Court observed in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477, the applicant's prior record is relevant: "…to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
Although Mr Swan's criminal history extends back to the Children's Court, I do not find that it is so significant as to require a more severe penalty to reflect the need for retribution, deterrence and protection of society.
As for Mr Swan's prospects of rehabilitation and the risk of reoffending, it is somewhat difficult to make any finding in that regard. He has an extensive criminal history and his offending behaviour commenced at an early age. The reports before me show that he is generally of borderline intellectual functioning. I note, however, that the report of Ms Zingirlis records that Mr Swan stated that he wanted to be in his children's lives and "put them first". He wanted to "fix" himself and be a role model instead of a "drug addict…jail bird". The report goes on to state that, "He planned to do this by improving his literacy skills, learning to manage his emotions and avoid substance use. He reported that he had completed a program in gaol during a previous custodial period in which he 'learnt about emotions'. He felt he 'got a lot out of it' and was motivated to do it again." I make a guarded finding that Mr Swan has some prospect of rehabilitation.
It was urged upon me by Mr Dennis that Mr Swan is clearly a man of Aboriginal heritage who has had a disadvantaged and dysfunctional upbringing. Reliance was placed upon the principles enunciated by Wood J in R v Fernando (1992) 76 A Crim R 58 and by the High Court in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [36]-[44].
I have had close regard to Mr Swan's background. None of it was disputed by the Crown. He did indeed have a very traumatic childhood marked by violence and family dysfunction, leading to an early interaction with the criminal law and the use of illicit drugs. I have regard to what the High Court has said in Bugmy v The Queen and I am satisfied on the material before me that Mr Swan's moral culpability is reduced to a degree by his violent upbringing, which has left its mark on him. A violent upbringing may explain to some extent an offender's recourse to violence when frustrated, such that his or her moral culpability for the inability to control that impulse may be substantially reduced. The fact that Mr Swan does not admit the offence makes such a finding more difficult in relation to him, as it was not asserted that this was an explanation for the offence. Nonetheless, the reports relied upon by him before me suggest that his background has somewhat compromised his capacity to mature and to learn from experience.
In making this finding, I am cognisant of the fact that, while the applicant's experiences in early life might justifiably evoke sympathy and are a proper basis upon which to ameliorate the sentence to a degree, it is nonetheless necessary for the sentence that I impose to be proportionate to the gravity of the crime and to reflect the purposes of sentencing.

Subjective circumstances of the offender Kimura

Mr Kimura is now 53 years old. Unlike Mr Swan, he has only a minor criminal history. He has one minor conviction for an offence of goods in custody in 2012, for which he was fined $500. He has some minor matters on his Queensland criminal history between 2007 and 2009, many of which were so minor that no conviction was recorded. He otherwise received a small fine. In the psychological report tendered, there is a reference made to a drink driving offence in 1985 and a common assault in 1987 in New Zealand. I accept that Mr Kimura's criminal history is minimal such as to warrant some leniency.
Two reports from Dr Peter Ashkar, forensic psychologist and clinical neuropsychologist, were tendered on behalf of Mr Kimura. Dr Ashkar performed a neuropsychological assessment. He stated that Mr Kimura's history provides no evidence of learning disability, developmental delay or illiteracy. He performed within normal limits in most areas of his intellectual and cognitive functioning. His overall level of intellectual functioning was below average, being in the 9th percentile. He did perform poorly on word knowledge and abstract reasoning tests. Dr Ashkar stated that this is likely to contribute to poor decision-making to the extent that it limits his ability to project his thinking into the future and to appreciate the possible consequences of his actions. Dr Ashkar found no evidence of an anti-social personality style and suggested a favourable prognosis in terms of his future risk of offending. I make a finding that Mr Kimura has good prospects of rehabilitation.
Dr Ashkar provided other information concerning Mr Kimura's background. He was born and grew up in New Zealand and identifies as Maori. He described a happy childhood. His parents were responsible and hard-working caregivers and did not abuse alcohol or other drugs. From 1998, he lived and worked in Australia intermittently. He settled here permanently in 2009. He worked for the railways as a linesman in New Zealand and Australia for approximately 27 years. This involved electrical work building transmission lines and working on substations.
In 1987, Mr Kimura suffered a serious work injury after falling 14m from a transmission line. He injured his right shoulder, right elbow and left knee. He underwent a shoulder operation in 2015. He now has arthritis in his right elbow and left knee.
Mr Kimura had been unemployed for approximately two months at the time of his arrest. He told Dr Ashkar that his physical injuries had caught up with him and made it difficult for him to engage in employment. He was homeless at the time, staying with friends where possible. He was using small amounts of cannabis. He stated that he was not well acquainted with Mr Swan.
Mr Kimura has never been married and has no biological children.
An affidavit sworn by Mr Kimura was read on sentence. In it Mr Kimura explained the circumstances of an assault committed upon him by eight other prisoners on 30 July 2016 while in the mainstream section of Parklea. He states that he was separated from Mr Swan on 12 May 2016 and subsequently placed on protection at Long Bay Gaol until being transferred to Parklea. He suffered a broken nose and four broken ribs, a split left ear and bruises and grazes to his upper body. He suffers from headaches, loss of hearing in his left ear and emotional and psychiatric difficulties as a result. The affidavit annexes relevant medical notes from the Prince of Wales Hospital and clinic at Long Bay.
Mr Kimura states that he was called a "dog" while on protection at Long Bay and again at Parklea. Mr Kimura returned to Long Bay on 3 August 2016, where he was again placed on protection. He deposes that he was continually called a "dog" and a "piece of shit" by other prisoners passing his cell. He also deposes that he was unaware of any trouble that might come from giving the evidence that he did.
Dr Ashkar reports that Mr Kimura has difficulties with thinking in that he is paranoid, suspicious and distrustful and has unusual thoughts and perceptions. He has various somatic/cognitive complaints, including head pain and vague neurological symptoms. Dr Ashkar opined that this relates to his experience of being assaulted in custody. He also noted that some of his unusual thoughts and perceptions appear to be in part related to his culture. He noted that Mr Kimura sustained emotional and psychiatric injuries from the assault and that he exhibits above average levels of anxiety. The symptoms of anxiety include intrusive thinking, nightmares, heightened physiological arousal and hypervigilance. He is on protection in jail and remains fearful for his life.
Mr Kimura maintains his innocence. He sought to minimise his role in the offence in his evidence. He admitted during his evidence in the trial that he told numerous lies to police. Mr Bruce submitted on his behalf that the lies he told police were explicable on the basis that he was no doubt seeking to protect Mr Swan. The desire to protect Mr Swan extended to the evidence he gave in court. It was accepted that aspects of Mr Kimura's account at the trial were implausible. Mr Bruce relied upon the implausibility of aspects of his evidence in support of his contention that the offender Mr Kimura is of limited intelligence and that is relevant to his moral culpability.
There was evidence before the Court, which was not disputed by the Crown, that the assault upon Mr Kimura on 30 July 2016 was perpetrated by a number of Aboriginal inmates. There was no evidence to suggest that Mr Swan was involved in or responsible for that assault and I cannot take this evidence into account against Mr Swan in any way. The material in relation to that assault satisfies me that Mr Kimura has been identified as a "dog" in custody, because it has become known that the evidence that he gave at the trial implicated Mr Swan in the murder of Mr Kormilets.
Mr Bruce submitted that the Court could take into account the fact that Mr Kimura has suffered injuries while in prison awaiting sentence that make his conditions of custody more onerous. He relied upon the decision in Silvano v R (2008) 184 A Crim A 593; [2008] NSWCCA 118 at [36] per James J in this regard. Although those comments were made in the context of extra-curial punishment, I accept that the same principle applies here. Notwithstanding that Mr Kimura's physical injuries have healed, the evidence of Dr Ashkar in his report of 14 November 2016 is that as a result of the assault Mr Kimura sustained both physical and emotional and psychiatric injuries. He is in protective custody and believes that the threat to his life is real and ongoing. Mr Kimura's evidence as to the hours that he is detained in his cell was not challenged by the Crown.
I accept that hardship will be occasioned to Mr Kimura as he will be required to spend his time in custody experiencing a high level of anxiety concerning if or when he might again be assaulted. There is expert evidence that satisfies me his mental state is a direct result of an assault in custody, which in turn is a result of the evidence he gave at his trial. Imprisonment "will be a greater burden on the offender" such as to warrant leniency: R v Smith (1987) 44 SASR 587 at 589. Accordingly, I propose to ameliorate the sentence to be imposed on Mr Kimura to some extent.
A further mitigating factor upon which counsel for Mr Kimura relied is that his legal representatives made early and comprehensive disclosure of his case in advance of the trial. It was submitted that a discount ought to be allowed pursuant to s 22A of the CSP Act.
The Crown accepted that there was regular communication between Mr Kimura's legal representatives and the prosecution by email, letter and telephone in the months prior to the trial with a view to limiting the evidence to witnesses and exhibits relevant to the real issues. Initially, 59 witnesses were to be called in the Crown case. It was indicated on behalf of Mr Kimura that only eleven witnesses were required for cross-examination. A detailed letter was provided setting out evidence to which objection was taken. Only a small amount of the available documentary material went into evidence before the jury.
In addition, by email dated the 22 April 2016, Mr Kimura's legal representatives advised the prosecution of the admissions that the offender was prepared to make pursuant to s 184 of the Evidence Act 1995 (NSW). Although the admissions were not formally made at the commencement of the trial, the Crown conducted its case having regard to those admissions.
I accept that there was, on the part of Mr Kimura, a minor degree of facilitation of the administration of justice, resulting in savings of time and inconvenience to the Court, the Crown, the police and, not least, to witnesses. However, this must be balanced against the fact that there was a full committal hearing in this matter that included the calling of expert medical witnesses. Mr Dennis, who appeared for Mr Swan at trial, came into the matter shortly before the trial but did not take any difference in approach in relation to which witnesses were required for cross-examination. Accordingly, I propose to mitigate the sentence in relation to Mr Kimura to a small extent and less so for Mr Swan.

No victim impact statement

No victim impact statement was tendered on sentence. Clearly, and in accordance with s 29(4) of the CSP Act, the absence of a victim impact statement given by a family victim does not give rise to an inference that an offence had little or no impact on family victims.
Evidence was given during the trial that, prior to 15 April 2013, Mr Kormilets was an active 77-year-old man who was enjoying a relatively healthy old age. He lived alone in his home at Redfern, where he had previously cared for his late wife through her many years of ill-health. He enjoyed a good relationship with his son Dmitri and with his grandchildren. His son Dmitri gave evidence at the trial of the deterioration in his father's heath after the attack and in the months before he died. I have had regard to this evidence and the other evidence at the trial concerning the manner of the death.

Parity

Considerations of equal justice loom large in this matter. As Gibbs CJ observed in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, it is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence. However, as his Honour went on to observe "other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."
I have already found that the offence itself, involving as it did two men entering an elderly man's home while he slept, assaulting him and robbing him such that he died of his injuries, was objectively very serious. However, I have found that the roles played by the two offenders differed. Although I am satisfied beyond reasonable doubt that Mr Swan struck the deceased, I am not able on the evidence before me to be satisfied to the requisite standard that Mr Kimura did. This means that Mr Kimura's culpability is less than that of Mr Swan and, for that reason alone, he should receive a lesser sentence than Mr Swan.
Turning to the offenders' respective cases, further significant differences are discernible. Mr Swan's criminal history is significant, whereas that of Mr Kimura is very limited. Mr Swan committed this offence while on conditional liberty, namely bail, and while subject to two good behaviour bonds, whereas Mr Kimura did not. Mr Kimura has suffered a serious assault in custody and has ongoing psychological injury as a result. He will serve his sentence on protection. This does not apply to Mr Swan. Mr Kimura is much older than Mr Swan. Mr Kimura took more steps to facilitate the trial process than did Mr Swan. Mr Swan's childhood was one of extreme deprivation while Mr Kimura reported a happy childhood. Both offenders have been assessed as being of borderline or low average intelligence, being in the 8th and 9th percentiles of same age peers respectively.
The Crown Prosecutor submitted that the sentence to be imposed on Mr Kimura should be less than that imposed on Mr Swan.
In light of the significant differences in both the objective and subjective cases of the respective offenders, principles of equal justice dictate that the sentence that I propose to impose on Mr Kimura will be less than that to be imposed on Mr Swan.

Comparable cases

Mr Dennis on behalf of Mr Swan provided eight decisions of this Court said to be comparable to the present matter. Some of those were of more assistance than others. The decisions in R v Richard Keith Smith [2013] NSWSC 1159, R v Steven John Smith [2013] NSWSC 1723, and R v Raymond Kennedy [2015] NSWSC 327 were of some assistance. Those three co-offenders were sentenced by Schmidt J, Barr AJ and Wilson J respectively. The three co-offenders all pleaded guilty at different stages of the proceedings to an offence of murder that was very similar to the present offence, albeit slightly more serious.
In that offence, three male offenders entered the premises of a 75-year-old man at about midnight, intending to steal property. They demanded that he open safes for them. When the deceased refused to co-operate, they ransacked his house, forcing open or attempting to force open other security containers. He was assaulted in different rooms and dragged from room to room whilst he was injured. He was struck with fists and other weapons such as a tyre lever or the shaft of a golf club. He was left in his home seriously injured and was not discovered until 5:30pm the following afternoon. He suffered extensive brain damage. His life support was withdrawn seven days after the incident
Of the three offenders, Richard Smith received an 18% discount for his plea of guilty. He assaulted the deceased but there was no evidence he used a weapon. The relevant intention was to inflict grievous bodily harm rather than to kill. Her Honour found the offending to be "somewhat above the mid-range of such offences": see at [19] and see also at [79]. Her Honour imposed a non-parole period of 17 years and two months with a balance of term of five years and nine months. The undiscounted total term was thus 28 years. He was 27 years old at the time of the offence and 30 when sentenced. He was on parole at the time of the offence and had an extensive criminal record of increasing seriousness, dating back to 1997. He was found to be of limited intellectual ability, but not to the extent of incapacity.
Steven Smith also pleaded guilty and received a discount for a late plea (10%). He was found to be remorseful. There was no evidence he had struck any blows. He was sentenced to a non-parole period of 14 years with a head sentence of 20 years. He was 23 years old at the time of the offence and 26 at sentence. His record included offences of armed robbery. He was on parole at the time of the murder. He attended school until Year 9 and was found to be of low verbal intelligence.
Raymond Kennedy's offence was assessed as being a "grave example" of murder, with this offender having a "high" moral culpability. He was 18 years old at the time of the offence. A 5% discount was afforded to him for his very late plea of guilty. The plea was held not to be indicative of contrition or remorse as he unsuccessfully sought to reverse it. Mr Kennedy had a dysfunctional upbringing and a long history of drug and alcohol abuse and his criminal record dated back to 2005. He attained only primary school education. His IQ of 70 fell in the extremely low range of cognitive functioning.
The other five cases relied upon by Mr Dennis were Regina v AX [2015] NSWCCA 317, R v Briggs (No 9) [2014] NSWSC 1805, R v Kaine (No 2) [2013] NSWSC 1824, R v Biljuh (No 7) [2015] NSWSC 1917 and R v Sumpton (No 4) [2015] NSWSC 684. I have had regard to all of those cases. They largely relate to assaults on vulnerable victims in their homes. The non-parole periods imposed ranged from 13 years to 22 and ½ years and the head sentences from 18 to 30 years. Some were sentences following pleas of guilty and others followed a trial. Some were objectively more serious and some were less so. The subjective features of each offender differed as between each case and from the present case. Although some caution is required in relying upon other cases with different subjective and objective features, I have found those cases to be of some limited assistance.

Determining appropriate sentences

The maximum penalty for the offence of murder is imprisonment for life. The Crown did not submit that I should impose the maximum penalty of life imprisonment on either of the offenders: s 19A of the Crimes Act 1900 (NSW).
The relevant standard non-parole period is 20 years. That does not mean that 20 years is the necessary starting point or the end point in fixing the sentence: Muldrock v R (2010) 244 CLR 120; [2011] HCA 39. Instead, I am required to bear in mind both the maximum penalty and the standard non-parole period as statutory guideposts when considering the appropriate sentences to be imposed. In so doing I am obliged to identify all of the factors relevant to the sentence and then determine the appropriate sentence: Muldrock at [26], citing Markarian v R [2005] HCA 25; 228 CLR 357 at [51] per McHugh J.
I must also have regard to the purposes for which a court imposes a sentence, as stated in s 3A of the CSP Act. Those purposes are to ensure that each offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community.

Time spent in custody

Both Mr Kimura and Mr Swan were arrested on 17 April 2013 and have been in custody since that date. Mr Swan has served two years and eight months in custody solely in relation to this matter. Mr Kimura has spent three years and eight months in custody solely in relation to this matter. In circumstances where Mr Swan was serving short sentences for unrelated offences until 11 April 2014, it is within my discretion to backdate the sentence to commence on any date since he entered custody in relation to this offence. I propose to accumulate the sentence partially with sentences that he has already served since he entered custody over three and a half years ago to the extent of half of the approximately 12-month non-parole period he has served since he entered custody in relation to the murder.
I do not propose to find special circumstances within the meaning of s 44(2) of the CSP Act. It was not urged upon me by counsel for either offender that I would. The parole periods to be imposed will be significant in any event. I note that the sentences will reflect that the ratio between the non-parole period and the head sentence for both offenders has been adjusted down slightly by a few months.

Section 166 certificate matter

The Crown asked that the court deal with a summary matter of possession of cannabis under s 166 of the Criminal Procedure Act 1985 (NSW) in relation to Mr Swan. I propose to deal with that matter under s 10A of the CSP Act.

William Rodney Swan

The offender William Rodney Swan is convicted of the murder of Alexander Kormilets. The offender is sentenced to a non-parole period of 19 years and 6 months, commencing on 17 October 2013 and expiring on 16 April 2033, with a balance of term of 7 years, expiring on 16 April 2040. The total sentence is imprisonment for 26 years and 6 months. The offender will be eligible for release on parole on 16 April 2033.
For the offence of possessing a prohibited drug contrary to s 10(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW), a conviction is recorded pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and no other penalty is imposed.

Thompson Kimura

The offender Thompson Kimura is convicted of the murder of Alexander Kormilets. The offender is sentenced to a non-parole period of 17 years, commencing on 17 April 2013 and expiring on 16 April 2030, with a balance of term of 6 years, expiring on 16 April 2036. The total sentence is imprisonment for 23 years. The offender will be eligible for release on parole on 16 April 2030.

Amendments 20 December 2016 - Amend typographical error in paragraph [107] and amend coversheet to reflect disposition of offence contrary to s 10(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW). 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: 20 December 2016

Drug (Misuse and Trafficking) Act 1985(NSW)

Criminal Procedure Act 1985(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Legislation Cited (5)

Cases Cited (33)

Cited By (1)