The Court notes the need for gaol as a deterrent against abuse of the elderly and other vulnerable victims. In the words of the district judge who presided in R v Timbreza  NSWDC 142, a caregiver, acting out of “pure malice,” subjected a 91-year-old nursing home patient to “indignities.”
The victim, John Cummins, suffered from dementia. He required the assistance of nursing home staff for most of his daily activities, including washing and eating. He also has an impairment of his left leg that prevents him from walking without assistance.
The indecent assaults generally occurred while Timbreza was helping Cummins take a shower. While Cummins was sitting in the shower seat, Timbreza removed the shower head from the hose and directed the full force of the water against Cummins’ genitals or posterior. She also dried his genitals vigorously with a towel in a way that seemed likely to inflict pain or discomfort.
Witnesses heard Timbreza say “I really hate this man.” Evidence also revealed that Timbreza tried to get witnesses to lie during an investigation of her misconduct.
Timbreza came to Australia in search of work in 1984 and became a citizen in 1987. Her friends from church describe her as friendly and kind hearted. It does not seem likely, however, that they were aware of the abuse she inflicted on the victim.
Timbreza was fired from her nursing home job. She then obtained housekeeping work through two different agencies. She did not reveal the charges to those agencies, a fact that disturbed the sentencing judge.
The judge was also disturbed by Timbreza’s lack of insight into the harm that she caused the elderly victim. She explained that she acted out of frustration but denied that she intended to cause pain or even that her actions were inappropriate. The psychologist’s report also reflected that Timbreza had a poor understanding of the consequences of her actions.
The judge was concerned that Timbreza was a poor candidate for rehabilitation, given her lack of insight into her behaviour. Although she will not be allowed to work in a nursing home again, the judge feared that she might eventually hold a caretaking position for elderly, vulnerable individuals.
The court decided that general deterrence should play an important role in Timbreza’s sentence. In addition to protecting the public from Timbreza, he imposed a sentence that would send a message to everyone that abusing the elderly is unacceptable and will not be regarded lightly.
A gaol sentence for a first offender at the age of 55 is unusual, but the court decided that this was a case in which it was warranted. The court imposed consecutive sentences of 2 1/2 years on each count of aggravated indecent assault, with a non-parole period of 12 months. The court added another year for the common assault offences, but adjusted the start date of that sentence so that Timbreza would be eligible for release after serving 18 months.
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