DPP v Kelly [1999] VSC 399

Ms Saunders and you had separated some six weeks before 25 November 1998. She, as was her complete right, then decided that she would move interstate. Although I have called her your partner, you and she had separated at the time of the offences. You, she and your daughter had lived together as a family for almost eight years at the time of the offences. Your daughter was from a previous relationship and was not the daughter of Ms Saunders. When you and Ms Saunders separated, she went to live by herself nearby. You continued to live with your daughter. Relations between you and Ms Saunders, although difficult, were peaceful and amicable. However, at the commencement of the week of the offences, Ms Saunders informed you of her decision to move interstate, and thereafter you descended into a state of severe depression. It was from that time - when you were informed that your partner was moving on - that the cause of these offences - your deep depression - derived.

Supreme Court of Victoria|1999-09-29|Before: Cummins J.

CRIMINAL LAW - sentencing - attempted murder - unlawfully administering substance - intended murder/suicide - depression - considerations applicable.

Mr Kelly, you have pleaded guilty to the attempted murder of your partner, Andrea Louise Saunders, at Sebastopol on 25 November 1998. You have also pleaded guilty, at the same time and place, to unlawfully administering a substance to your daughter. You were 31 years of age at the time. Ms Saunders was then 27 years of age, having been born on 16 September 1971, and your daughter was then eight years of age, nearly nine, having been born on 14 December 1989.

Ms Saunders and you had separated some six weeks before 25 November 1998. She, as was her complete right, then decided that she would move interstate. Although I have called her your partner, you and she had separated at the time of the offences. You, she and your daughter had lived together as a family for almost eight years at the time of the offences. Your daughter was from a previous relationship and was not the daughter of Ms Saunders. When you and Ms Saunders separated, she went to live by herself nearby. You continued to live with your daughter. Relations between you and Ms Saunders, although difficult, were peaceful and amicable. However, at the commencement of the week of the offences, Ms Saunders informed you of her decision to move interstate, and thereafter you descended into a state of severe depression. It was from that time - when you were informed that your partner was moving on - that the cause of these offences - your deep depression - derived.

Having descended into a state of deep depression, you decided to end your life and that of your partner and that of your daughter.

You are not charged with the attempted murder of your daughter, and in saying what I have said, I do not sentence you on that basis, but I describe the origin of what occurred. Very seriously, you decided to administer Temazepam to both your partner and your daughter. You legally obtained Temazepam for yourself, intending then to use it in the way that I have described. You arranged, as you had done on other occasions, to have dinner with Ms Saunders and with your daughter at the premises of Ms Saunders, and you went there on that Wednesday afternoon, 25 November, the date of the offences. Earlier that afternoon, you had taken a 20 litre plastic drum of yours to a service station in Sebastopol and filled it with petrol. You then took it around to Cromwell Street where Ms Saunders was living, while she was not home, and placed it in the garage. You then on your computer entered a suicide note addressed "To mum and dad". Then at 3.30 p.m. you collected your daughter from school and took her to get her hair cut. You took her to your home. She put on a nice dress. You then placed the sleeping tablets in your pocket and drove with your daughter around to Cromwell Street. You cooked dinner for Ms Saunders and your daughter and yourself, being chicken kebabs and rice as a main course, and chocolate mousse for dessert. You placed 11 Temazepam sleeping tablets in Ms Saunders' chocolate mousse, and four into your daughter's chocolate mousse. The three of you then had your meal, including the dessert.

After the meal, Ms Saunders and your daughter went into the lounge room to watch television, while you attended to the dishes. As a consequence of the drug you had administered unknown to Ms Saunders and to your daughter, they became sleepy. Your daughter in fact lay down complaining of feeling funny, and Ms Saunders fell asleep. You then carried Ms Saunders up to the main bedroom and laid her on her bed. You then lay down beside her, holding her. Later some clothing of hers was found removed whilst she was asleep. You said to the police that you had thought of strangling her with that clothing. An exacerbating element in this case is that she still does not know what occurred while she was asleep. That adds to the seriousness of this offence. Your daughter began to cry, so you returned to the lounge room and held her for a short time before returning to the main bedroom. When you returned to the main bedroom, Ms Saunders had begun to stir, and said that she was going to play badminton. You then attacked her by pushing a pillow into her face, forcing her to the floor, and attempting to suffocate her with the pillow. She courageously fought against you despite being heavily sedated unlawfully by you. You then attempted to strangle her with your hands around her neck. Ms Saunders again lapsed into unconsciousness, believing that she was going to die. She attempted again to speak with you when she partially regained consciousness and you then stopped your assault upon her.

You rang the ambulance yourself at 7.30 p.m. The statement from the call taker of the Western Region Ambulance Service states that you said an ambulance was needed quickly as you had given your daughter some type of tablet and that you had tried to kill your wife, and that they had to get there quick. An ambulance was immediately dispatched and D24 informed. Your intelligent and courageous daughter rang the parents of Ms Saunders and said, "Nanny, you have to come down here real quick, something really awful has happened to mum." Your daughter said of Ms Saunders, "She is not moving, she is on the front porch." The mother of Ms Saunders said to your daughter, "Run next door and tell the lady to come and have a look at a mummy", which was how your daughter, Mr Kelly, described Ms Saunders. Indeed, that is what your daughter courageously and responsibly did. She ran next door and said to the woman, "I want you to come with me, something's wrong with my mum". She was crying and very distressed. Ms Saunders' father meanwhile rang the ambulance.

Fortunately the physical injuries to Ms Saunders were not as severe as they might have been. She was retained at the Ballarat Health Services Base Hospital overnight for careful observation, and was given limited medication to assist her. A careful examination of her by Dr R.F. Gornall revealed that she suffered from a number of dot petechial haemorrhages over her face, particularly noticeable on her upper eyelids, and that blood was present around her nostrils - petechial haemorrhages classically being an indication of attempted strangulation and suffocation. There were some other lesser injuries she also sustained. Your daughter was examined at the emergency department of the Ballarat Health Services, and was medically well, fortunately, and was discharged with no treatment other than examination.

The fuel container full of petrol was discovered by the police on the floor of the rear garage of the premises of Ms Saunders.

You stated to the attending police, "I've just tried to kill my family." The computer message you left for mum and dad stated that, "Together we will be united forever". You also said, "Everyone seemed to think of me as some great fixer of all things, but I never had the answers". In the tape recorded interview of you by investigating officers at the Ballarat CIB office on that Wednesday night, commencing at 9.09 p.m, your first four answers were, "I want to die", and you concluded the interview stating that as well, at 10.15 p.m. I have studied the interview. You said that when you returned to Ms Saunders after attending to your daughter that you thought "It's time to die" (answer 184). You described how fortunately you desisted from the attack upon Ms Saunders: Question 250, "Why did you stop trying to strangle her?" Answer: "Because she wanted to talk, so I let go." Question: "Then what happened?" Answer: "Then we talked. Talked for a little while, and she said she loved me, and I said, ´You're only saying that just to stop me from doing this.'" Fortunately it did stop you from doing that, and you rang the ambulance.

You said of the clothing you removed while Ms Saunders was unconscious at answer 410, that you were going to use that to strangle her and you didn't do anything inappropriate other than intend to use that to strangle her. At Question 373 you said that you got 20 litres of petrol and filled it up "this afternoon" and "put it in the back shed" and kept it there, your intention being that after you drugged Ms Saunders and your daughter, you were going to light a candle and you were going to all lie together, then unconscious, and you were going to cause the house, by reason of the burning candle, to be incinerated, the three of you in it.

I repeat, I am not sentencing you for attempted murder of your daughter, because that is not the charge, but I describe what I describe because that is what happened. The acts which found the attempted murder of Ms Saunders are the attempted suffocation (with the pillow) and strangulation (with your hands) of her by you. However the concomitant circumstances (initially the administration of Temazapen and later the intended conflagration of the house with you all in it) are critically relevant as the context of the founding acts.

This is thus a most grievous case of attempted murder. Plainly you were deeply depressed, Mr Kelly, but that is no justification for your criminal action against those you loved.

I have studied the statement of Ms Saunders of 26 November 1998 where the background circumstances and the terrible experience she underwent on 25 November 1998 are set out. I have also studied the video statement of your daughter made at the Ballarat Community Policing Squad on 26 November 1998 in which your daughter stated what had occurred. I commend in particular Senior Constable Kemfert for the sensitive, intelligent and responsible questions she asked of the child in that terrible situation.

I have had the benefit and the report of Dr D. Senadipathy, psychiatrist, of 28 September 1999, and other material to which I shall shortly come, including in particular the benefit of evidence from your mother, who is a most loyal and impressive woman. You had, through no fault of your mother's, a most difficult upbringing. Your difficulties occurred very early in your life, your father being an alcoholic. You were the third of five children in the family. Your parents separated when you were 12 years old. You lived in many places around central Victoria, having moved from place to place to place and school to school to school. As a consequence, you had a very unhappy childhood and were a frightened child. You left school and went to work after Form 10 when you were 15. You commenced to use alcohol and marijuana. You have some convictions for minor offences during that period in the late 1980s, but the convictions are inconsequential and simply signify the difficulty you were going through as an adolescent. They do not signify criminality on your behalf, nor do they signify any violence on your behalf. In 1987 you were ordered to perform 100 hours community work and to undergo alcohol rehabilitation, and significantly you demonstrated your capacity to learn from that sentence, and you demonstrated that you can rehabilitate yourself.

You met a woman when you were 20 years of age who was older than you, and had had a number of children herself. You and she married, but the relationship only lasted a couple of years and you separated. That relationship - and significantly that separation - did not involve any violence by you to her. Your daughter is the child of that relationship. After that separation you consulted Dr Senadipathy in 1990 because of depression, and you then returned to your studies, demonstrating a capacity to improve yourself. You spent a year and a half studying to be a psychiatric nurse, and then changed your pursuits to computers, and became an assistant manager at a Ballarat computer centre.

You lived with Ms Saunders for some eight years. There were a number of separations in the latter stages between you both, and on none of those occasions did you demonstrate violence to Ms Saunders. However, as I say, as the final separation occurred and she informed you that she was truly moving on, then you sank into a deep depression and you then committed the offences for which you are to be sentenced before me.

You are a person of intelligence. I am satisfied on the material placed before me that you were severely depressed at the time of the offences. However, Mr Kelly, you knew what you were doing, and what you intended to do was truly terrible.

You had difficulty on the first day you came before me, in pleading guilty to the two charges. That was not because you lacked remorse. You have overwhelming and genuine remorse for your terrible intentions. The reason you had difficulty in pleading guilty before me was that you have difficulty in facing the enormity of what your intentions were. But partners and children are entitled to the full protection of the law. Whether the offence is through violence or whether the offence is through depression, they are entitled to the protection of the law.

I take into account your true and overwhelming remorse and your plea of guilty. I take into account the fact that you were severely depressed at the time. Because of that psychiatric state - not insanity, but a psychiatric illness - it is not appropriate in your case to place emphasis upon the principle of general deterrence. As to special deterrence, I note what was said in R v Tsiaras [1996] VicRp 26; (1996) 1 V.R. 398 item 4 at page 400 that your counsel, Mr D'Arcy, has relied upon; but in your case, Mr Kelly, the question of special deterrence is not unimportant. I take into account the evidence of your good and loyal mother.

I remain deeply concerned for the welfare of your daughter, who is significantly affected with grief and loss by the terrible circumstances that have befallen her. I commend the help provided to your daughter by Ms Margot Murphy, psychologist, which I am sure will be continued to be provided to your daughter in her distress.

The consequences to Ms Saunders are not the physical consequences of your assault upon her but the deep fear and distress that the realisation of what could have befallen her was real. That remains with Ms Saunders as a very real consequence of your intentions and the actions that you in fact carried out.

I am satisfied that pursuant to the provisions of s.464ZF Crimes Act 1958 that a forensic sample ought be provided by you and I so order. I am also satisfied, pursuant to s.78(1) Confiscation Act 1997 that the items sought to be confiscated in the schedule provided to the court ought to be confiscated and I so order.

You have served 308 days in pre-sentence detention and I declare that period as already served under the sentence I impose upon you pursuant to s.18(4) Sentencing Act 1991, and I so certify.

On Count 2, administering a substance unlawfully to your daughter, I sentence you to one year's imprisonment, which period is to be entirely concurrent with the sentence I impose upon you on Count 1, as the matters happened at the one time.

On Count 1, attempted murder, I sentence you to ten years' imprisonment. I direct that you serve a minimum period of seven years before being eligible for parole.

I recommend that whilst in custody, you be given proper psychiatric and psychological treatment.

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Judgment (28 paragraphs)

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