R v Terrence David KAIN

Judgment Introduction 1Terrence David Kain stood trial on an indictment charging him with the murder of Beverley Doris Kain on 27 February 2011. He pleaded not guilty of murder but guilty of manslaughter. In the result, the jury acquitted him of murder and convicted him of manslaughter. Manslaughter carries a maximum term of imprisonment of 25 years. It is not submitted, nor could it be, that this is a case that should attract the maximum sentence or anything near it. 2There were two possible paths to the verdict: the first was that it was reasonably possible that he did not intend to kill Mrs Kain (who was his mother) or cause her grievous bodily harm; the second was that he did have one or other of these intentions but, by reason of his abnormal state of mind, his self-control and judgment were so affected as to warrant him being convicted of manslaughter rather than murder. It is relevant to the question of culpability that I determine whether or not Mr Kain intended to kill or cause grievous bodily harm to his mother. If he did, that would make his crime the more serious. It follows that it is for the Crown to satisfy me beyond reasonable doubt that this was the case. Of course, Mr Kain's mental condition is relevant to this issue as well as the extent of his culpability. The killing is reported 3Mr Kain and his mother lived together in a house in suburban Goulburn. Just before 11pm on 27 February 2011, Mr Kain telephoned his sister Mrs Stinson and said, "Mum's dead. I strangled her, she's dead", and then hung up. She then rang her mother's home telephone. Mr Kain answered. His sister asked, "What the hell have you done?" He repeated, "She's dead, I strangled her, she's dead" and hung up. Mrs Stinson then called 000 and reported what Mr Kain had told her. 4Mrs Stinson said that she was well aware of her brother's voice, both when he was drunk and when he was sober. She did not think that he was affected by alcohol. The police investigation 5At 11.02pm Senior Constable Goldstien and Constable Moller, who were then conducting routine patrols in the town, were directed to Mrs Kain's address. They got there two minutes later. As they walked up the driveway, the garage door opened and they saw Mr Kain standing in the entrance. He said, "I killed her I strangled her". He was placed on the ground, handcuffed and cautioned. The officer then asked, "What happened?" Mr Kain replied, "I just lost it. I strangled her". The officer asked, "Where is she?" and Mr Kain responded, "In the bedroom. I lost it." Constable Moller went into the house and returned a few minutes later to report that Mrs Kain was dead. She asked Mr Kain, "When did you do this?" He replied, "About half an hour ago." She said, "She's still really warm, it couldn't have been that long ago". 6Mrs Kain's body was found in the main bedroom in her night clothes. She was lying on the floor next to the bed with her head resting on a pillow which had obviously been placed there after she had fallen since it was inside the underneath cavity, as it were, of the bedside table. The only disturbance to the furniture was that a bedside lamp had been knocked over. The rest of the house appeared completely undisturbed. 7Mr Kain remained at the house, whilst police inspected the premises. He asked for some water and was told that he would be taken down to the police station for an interview in due course and would be given water there. He also asked for psychiatric help, which was promised. He sat quietly, handcuffed, in the driveway of the house. After about half an hour he said, "I'm not a bad guy, I just lost control." About ten minutes later he started to cry. The officer asked him, "Are you all right?" and Mr Kain said, "I'm just realising what I fucking done". Some time after this the officer asked him, "When you say you killed her, strangled her, what did you mean by that?" The accused replied, "I just freaked out". He remembered calling his sister and gave some details about her. There was some further conversation to which it is not necessary to refer and he was then taken to the police station. 8Mr Kain's interview at the police station commenced at about 2.15am. His account, in summary, was that he had argued with his mother before she went to her bedroom, he went out and had a smoke and then returned, the argument starting up again. He said that he could not remember what she said but she got loud and abusive. He said that he was upset and pushed at the bedroom door, that she fell backwards on the bed and went "crook 'cause I'd pushed her over". He said that he told her to shut up and stop saying those things and, after that, he did not know what happened. His account of what then happened is unclear but it seems that he went out of the room and then returned. His mother was on the floor beside the bed. He checked her pulse and (as I understand him), finding that she had none, panicked and rang his sister. He could not recall putting the pillow under his mother's head, although there can be no doubt that he did so. He said that he thought that when he pushed her over she went off the side of the bed and then onto the floor but he did not recall if she was alive or not. He was reminded that he had previously told police that he had strangled her but said that he did not recall doing this but had checked her pulse and assumed "I done it". He said he used the word "strangled", "because that's what I felt like doing to her" although he did not actually recall doing this. He repeated that, when he went back to the room, she was lying on the side of the bed on the floor and he thought that she had just fallen out of the bed and so he checked her pulse by putting his finger on the side of her neck but she wasn't breathing. He did not try to carry out CPR because he did not know how to do it. Autopsy 9At autopsy, the pathologist, Dr Wills, concluded that the cause of Mrs Kain's death was compression of the neck caused by manual strangulation. He noted multiple areas of bruising to the muscles of the neck, a fracture in the hyoid bone and fractures of the thyroid cartilage, located at the front of the neck just below the chin. There was also bruising around the right side of the face and the right collar bone. He also found deep bruising to the back of the head, of both shoulder areas of her back and mid-upper back, on the back of her left arm and on the front of her upper right arm in the bicep area. He said that the bruising to the upper back and upper arms might be caused by contact with, or more likely pressure from, the ground and possible gripping or handling at the time of the offence. He thought that, if the deceased fell to the ground as a result of being pushed, this could have caused the deep bruising to which he referred, whilst the bruising to the upper arms could be the result of gripping or handling during resuscitation, although this latter explanation was less likely because of its extent. However, this possibility could not be entirely excluded. A blood sample was taken which showed a very low reading, so Mrs Kain was not affected by alcohol at all at the time. Because of the varying factors contributing to death due to compression of the neck, it was not possible to specify the time it took for Mrs Kain to die as a result. Mr Kain's state of mind 10In dealing with intention, it is necessary to consider, of course, Mr Kain's state of mind of which perhaps the most significant factor was his psychiatric condition. The application of sufficient force to strangle someone to death in most cases is strong evidence of an intention, at least, to cause grievous bodily harm. If Mr Kain's psychiatric condition was such as to make this understanding less likely, then it might be appropriate to conclude that he did not intend either to cause grievous bodily harm or death, taking into account of course the overall circumstances. 11Each case must depend upon its own facts but, in the present case, were I to find that Mr Kain did not intend to cause death or grievous bodily harm and was guilty of manslaughter for the reason that Mrs Kain's death resulted from an unlawful and dangerous act, that would (as I have already mentioned) be objectively less serious than if he did have one or other of those intentions, even though his capacity to understand what was happening, judge the rightness or wrongness of his actions or control himself were substantially impaired by his abnormality of mind. It is also relevant to consider, were the appropriate conclusion that Mr Kain did not intend to cause death or grievous bodily harm to his mother, whether he realised himself that he was exposing his mother to an appreciable risk of serious injury or might not have realised this though a reasonable person in his position would have done so. Background history 12Mr Kain was able to work and did so taking seasonal employment with fruit picking, working at a plant nursery and occasionally cutting and bagging firewood for sale. At times he has self-harmed, almost certainly as a result of depression becoming acute at times of intoxication. His self-harm involved cutting himself with knives on his arms and legs and burning himself with cigarette butts. The worst such incident in terms of its permanent effect upon him was that in May 1991 he shot himself in the leg and subsequently developed gangrene in his toe and foot which required a below knee amputation of his leg. His mobility depends on a prosthetic leg. 13Mr Kain lived independently for a time in the early 1990's but then with his mother. He attempted rehabilitation on several occasions but without success. He was a binge drinker so that he would seem sober for periods and then, when he received his social security cheque, spend it largely on drink. It was a disability pension. He did manage to work around the house, mowing the lawns, putting in a vegetable garden and some landscaping of the backyard. Although relatives saw what might be regarded as spats between him and his mother, they would be over in a short time and the relationship returned to normal. They did not ever see him becoming aggressive or offering any violence, nor did Mrs Kain ever say anything to Mr Kain's siblings about Mr Kain being violent towards her. They never saw him get involved in any fights or even verbal abuse. A neighbour noticed that in the last few weeks before Mrs Kain's death, Mr Kain and his mother seemed to have more arguments which involved a lot of yelling. She could not make out what was being said. I gather that Mrs Kain's voice was the louder. The neighbour described these exchanges as "snippets". Psychiatric evidence 14The Crown called Professor Greenberg whilst the defence relied on the evidence of Dr Furst. Both of these witnesses were highly qualified and very experienced forensic psychiatrists. Indeed, their opinions, to my mind, were to much the same effect in respect of Mr Kain's mental impairment, differing only - and then not by much - as to the possible contribution of intoxication to his actions. Both doctors relied also on the opinion of Dr Ilana Hepner, a clinical neuropsychologist who conducted a psychometric assessment of Mr Kain's cognition, behaviour and mood. 15Since both doctors accepted Dr Hepner's results and gave opinions in part which relied on them, I deal with her evidence first. She saw Mr Kain on 30 January 2012 in prison, interviewing him, obtaining a history, asking him about his cognitive function and administering tests. These tests include measures of different domains of cognitive function or thinking skills, including an evaluation of intellectual function, attention processing speed, spatial ability, high-level executive function and also mood. She also observed his behaviour throughout the assessment. Mr Kain had a history of heavy drinking with no period of abstinence, which would have adversely affected cognitive function such memory and executive function. The testing was conducted almost a year after the events in question, when he would have been abstinent from alcohol and receiving good nutrition for a significant period. Accordingly, it was likely that his cognitive functions would have improved. These impairments are evident even after abstinence for up to three months but, as time goes on, most people show some improvement in these areas. As Dr Hepner put it, 98% of Mr Kain's peers, matched for age and other background characteristics would perform better than him or, measuring his impairment in another way, 92% to 97% of his aged matched peers would perform better than him. 16An MRI brain study conducted on 19 March 2012 demonstrated diffuse brain damage which was chronic in nature. It was long standing. This damage was almost certainly caused by Mr Kain having been an alcoholic for many years. The history from his family members was that he had been binge drinking from his mid-teens onward, becoming especially severe when he reached 18 or 19. 17There is no doubt that Mr Kain suffers from an alcohol induced persisting dementia with memory impairment and what was described as "mild" executive function impairment. I have put the qualifier "mild" in quotations because in this context it means rather more than it might connote to the layman. Although, as dementia goes, Mr Kain's condition is mild (as distinct from moderate or severe) it is nevertheless significant. The executive function impairment demonstrated in his psychometric testing reflected damage to the frontal part of the brain. This area of function involves the ability to reason and control his behaviour as well as make judgments, to plan and sequence thoughts. Not surprisingly, these limitations become more marked when a person is angry or in an emotionally loaded situation. In addition, as I have already mentioned, the testing would be likely to demonstrate better executive functioning because of his abstinence and the calm situation in which it occurred as distinct from whilst he was still insulting his brain with alcohol and in an emotionally charged state, as at the time of the incident. 18As to Mr Kain's claimed difficulty with recalling what happened in any detail, his dementia would, at all events, impair his memory. Although he may in fact remember and falsely claim not to do so, Professor Greenberg did not think this was the case, although it could not be dispelled as a possibility. He thought the most likely explanation was a combination of psychogenic brain damage, which occurs when people are so shocked by what they have done they block it out and do not have a true memory to draw on - this is not deliberate but unconscious - or dementia and the effects of alcohol. Mr Kain told Dr Furst that he did recall arguing with his mother about some roses in the garden and her "having a go at me about my drinking and smoking cigarettes". He said that he thought that he pushed his mother but did not have an actual recollection of doing so. Dr Furst agreed with Professor Greenberg that his lack of memory was most likely psychogenic amnesia. 19I should mention at this point that I do not accept that Mr Kain was significantly affected by alcohol at the time of his violent attack upon his mother. That is not to say that he did not have alcohol in his system but I think he was by no means intoxicated. There was evidence that he had been drinking some hours before this incident but not in any especially large amount. To the evidence of Mrs Stinson that she did not detect the changes in Mr Kain's voice that occurred when he had been drinking, should be added the significant evidence of the police officers who saw him very shortly after the event and did not think that he was affected by alcohol in any way. Furthermore he was interviewed shortly after 2am on 28 February 2011 and did not give any sign of intoxication. 20Each psychiatrist, of course, relied in part on their appreciation of the history given by Mr Kain and their understanding of what came from other witnesses. It is not necessary for present purposes to analyse this material in detail. It is enough to say that my own view of that history and that evidence is closer to that described by Dr Furst than by Professor Greenberg and, accordingly, I accept his view that the main factors in Mr Kain's conduct at the material time were the effect of his dementia on his thinking and loss of control together with associated depression, personality vulnerabilities and his acute emotional state. 21The extent to which Mr Kain was in such an emotional state is very difficult to assess because of course, there were no witnesses present at the time and Mr Kain's own account of what happened is exiguous. At the same time, I think it is important to note that he had lived with his mother for many years whilst suffering from alcoholism and, although, at times he harmed himself quite significantly during episodes of anger and depression requiring hospitalisation, these were directed towards himself and never, so as far can be ascertained, at any other person, let alone his mother. Conclusion as to intention 22I am convinced that Mr Kain lost his temper as a result of angry exchanges between himself and his mother, which in all likelihood involved allegations that he was responsible for his father's dying of oesophageal cancer caused by passive smoking (Mr Kain being a heavy smoker), these allegations having often been made before. I have no doubt that the explanation for his violence towards his mother was that he lost control during an angry and possibly quite extended exchange and that this loss of control was substantially contributed to by his dementia. In short, if Mr Kain had not suffered from this condition I think it very improbable indeed that he would have acted as he did. Certainly, he was aware that he had strangled his mother and had used some considerable force in doing so. 23Although it is quite possible that Mr Kain does not have now any real recollection of the actual violence and perhaps did not have a clear recollection even shortly after the event, it cannot be doubted that he was intentionally violent towards her, knew that he was using significant force and that he was strangling her. Weighing up the evidence as best I can, however, I am left with a reasonable doubt that he actually intended to kill his mother or cause her grievous bodily harm. He intentionally inflicted violence, significant violence, but I think that his state of mind at the time was likely to have prevented him from truly appreciating the likely outcome of his actions except, of course, that his mother could be seriously hurt. In this respect the cognitive impairment caused by his brain damage which caused a delay in processing information strikes me as of particular importance. 24In coming to this conclusion, I am very much influenced by the undoubted fact that any violence, let alone of such a serious kind, appears to have been quite out of character for Mr Kain. Of course, I cannot positively say that he did not intend to kill his mother or cause grievous bodily harm but, considering all the evidence, I am left with a reasonable doubt that he did have one or other of these intentions. It follows that I must sentence Mr Kain upon the basis that he was guilty of manslaughter by an unlawful and dangerous act. In this regard, his mental condition is obviously of considerable importance in measuring his moral and criminal responsibility. Subjective features 25Mr Kain has no prior convictions. Neither, as it appears, has he come to the attention of police in relation to any criminal activity. Since an early age he has been an alcoholic. The only significant relationships in his life have been with his family and, in particular, with his mother. No doubt he has lived his life as best he could, though not happily. He certainly, I think, has wished to kill himself in the past but has not been able to bring himself to the point of doing so. He has now been abstinent for something over two years but he is, of course, still an alcoholic and still suffers from a significant degree of depression. Shortly after the event, he expressed remorse and this has been consistently reported in the psychiatric reports. I have no doubt that his remorse is genuine and profound. Victim Impact Statements 26I have carefully read the victim impact statements which have been made by Mrs Kain's daughter Deborah, son Brian, daughter Donna, sisters Frances, Barbara and Judith, grandson Luke, granddaughter Kobi, daughter-in-law Gabrielle and son-in-law Ronald. These statements pay loving and eloquent tribute to Mrs Kain as a loving, generous, kind and good humoured woman who was at the very centre of the life of their family and whose loss has been a terrible blow from which they are still suffering enormous grief. This is all the worse since she was killed at the hand of her own son, for whom she had been a loving, generous and caring mother. Nothing that the law permits me to do by way of punishment of Mr Kain can possible assuage their grief, nor can any words of mine afford any comfort. The most I can do is to offer the condolences of the Court for their loss. Conclusions 27Mr Kain's psychiatric condition is such that he is not an appropriate vehicle for general deterrence and that no particular weight other than that which is ordinarily applicable in these cases needs to be given to specific deterrence. I am of the view that this act of violence was entirely out of character although what the particular factors were which came together to cause him to lose control in this way cannot be identified beyond speculation. I do not believe that he represents a danger to the public and I think that it is most unlikely that he will offend in this way again. Overall, I am sure that his remorse and contrition and experience with the justice system and his period of imprisonment will operate as a powerful deterrent and reinforce what appears to be his own strong inclination to non-violence. 28Although, as I have mentioned, I am not satisfied beyond a reasonable doubt that Mr Kain intended to kill his mother or cause her grievous bodily harm, I am satisfied that he was well aware that he was seriously hurting his mother, although his dementia caused him to lose control in the extent of violence that he inflicted. This was a serious crime, especially since it resulted in death, which requires the imposition of a custodial sentence. 29Mr Kain has been in custody since 27 February 2011. This lengthy period of remand is significant, not only because it, of course, must be taken into account, but also because whilst on remand a prisoner does not have available the services or the activities which are available to a sentenced prisoner and, to that extent, is significantly more harsh. Furthermore, because of his mental condition his imprisonment must itself be subject to difficulties which the ordinary prisoner does not face. I understand that he has been in protection and is likely to serve his sentence on protection. Although there is no evidence as to precisely what difference this entails, there is no doubt that some restrictions are placed on him which are not imposed on ordinary prisoners. I have given this factor some, but not much, weight in light of the lack of evidence of the actual terms of his imprisonment. Early Plea 30Mr Kain offered to plead guilty to manslaughter on 4 April 2011 prior to his being committed for trial and entered a plea of guilty to manslaughter at the commencement of the trial. It is rightly conceded by the Crown that he should have the benefit of the discount allowed pursuant to s 22 of the Crimes (Sentencing Procedure) Act 1999. There is no reason why the full discount of 25% should not be allowed. Special Circumstances 31A substantial period of supervision is desirable in the public interest when Mr Kain is released on parole, as I have no doubt he will be at the expiration of his non-parole period. This is required both because of his alcoholism and dementia. Accordingly, I have varied the statutory ratio provided by s 40 of the Crimes (Sentencing Procedure) Act 1999 to increase the period that he otherwise would have served on parole. Sentence 32Taking a starting point of 9 years imprisonment and applying the discount yields an overall term of 6 years and 9 months. Adjusting the statutory period by reason of the special circumstances, I impose a non-parole period of 4 years. This sentence will commence on 27 February 2011.