Court of Appeal (Vic)|2013-11-22|Before: Weinberg JA, Osborn JA, Neave JA

Kelly v The Queen [2013] VSCA 336 (22 November 2013)

R v Kelly [2013] VSC 144 (Osborn JA)

1 I will ask Weinberg JA to deliver the first judgment.

2 The applicant, whose initial application for leave to appeal against sentence was refused, has elected to renew that application.

3 On 27 March 2013, after pleading guilty to one charge of statutory murder and one charge of reckless conduct endangering life, Osborn JA sentenced the applicant as follows:

Murder [s 3A of the Crimes Act 1958]

of the Crimes Act 1958]

24 years' imprisonment with a non-parole period of 21 years

4 The applicant seeks leave to appeal against his sentence on the following grounds:

The sentencing discretion miscarried as a result of the Judge's having treated as an aggravating feature of the applicant's offending the fact that his actions constituted also his commission of the offence of aggravated burglary.
In all the circumstances, the individual sentence imposed on Charge 1, the total effective sentence and the non-parole period are: (a) at odds with current sentencing practice; and (b) manifestly excessive.

5 At the time of the offences the applicant was mourning the death of a close friend, David Etherton. On 27 January 2012, the applicant was told by one of his sons that a man whom he knew, Peter Brown, was removing items from Etherton's

house and putting them onto a trailer. The applicant reported this to the police and they investigated the matter. Following a verbal altercation, Brown both abused and threatened the applicant's son. The applicant told his wife that Brown was going to be sorry for having made those threats.

6 The following night, the applicant (who had been drinking all day), retrieved a loaded .22 rifle from where he had stored it and drove to Brown's home arriving just after 10:00 pm. Once there, the applicant fired a shot through the side window of the front corner bedroom. He did so, having seen Brown pull aside the curtains, and immediately close them. The bullet went through the side window and out of the front window in the corner bedroom. This offending gave rise to charge 2, that of reckless conduct endangering life.

7 The applicant then smashed open the back door and entered the house. He yelled out 'Brown you're a weak cunt robbing from the deceased'. Brown's partner, Julie-Anne Trenery-Rogers, who was then some 20 weeks' pregnant, was also inside the house. As Brown ran out in an attempt to escape from the applicant, he heard his partner shout, 'Don't do it. Don't do it'. At that point, the applicant replied 'Shut up slut' before firing the rifle, hitting her just below the right shoulder blade with the bullet piercing her right lung and lodging in her heart. When she was struck she was in the hallway of the house. She died shortly afterwards at the scene. The offending gave rise to charge 1, that of murder.

The killing of Julie-Anne involved the following further aggravating circumstances:

you took a loaded firearm with you in order to pursue Brown and at the very least place him in fear of injury;
you broke through the back door of the house by kicking and entered it in a state of rage;
you knew Julie-Anne was present in the immediate vicinity at the time you fired the shot which killed her;
as Brown says, she screamed out, 'Don't do it. Don't do it' and you responded by shouting, 'Shut up slut' or something similar before firing the gun;
you were affected by alcohol and must have known that because of the period of time over which you had been drinking that the use of your firearm might be affected;
you shot an innocent pregnant woman who must have been terrified by your invasion of the house; and
knowing her to be shot, you did not pause to attempt to give her any aid whatsoever but left her wounded and pursued Brown into the backyard of the house.[1] (citations omitted)

I am satisfied beyond reasonable doubt of each of the adverse aspects of the matter which I have identified. I am further satisfied that the aggravating circumstances involved in the killing constituted in part the elements of the offence of aggravated burglary (although you are not charged with that offence). In particular, I am satisfied that you forcefully entered the house with your firearm, as you admitted when interviewed.[2] (emphasis added)

10 In light of that passage, and particularly the emphasised text, it is difficult to see how the applicant can seriously maintain that the sentencing judge 'treated as an aggravating feature' the fact that the applicant's actions 'constituted also his commission of the offence of aggravated burglary', and thereby contravened the principles laid down by this Court in Newman and Turnbull v The Queen.[3] It is clear beyond argument, from his Honour's carefully phrased sentencing remarks, that he was astute to ensure that he did not sentence the applicant for an offence with which he was not charged. Nor did he treat the commission of any such offence as an aggravating factor in sentencing the applicant in relation to charge 1. There is nothing to suggest that the sentence of 17 years' imprisonment imposed on that charge itself reflects any such error.

11 As regards proposed ground 2, this is also without merit. The applicant was

dealt with on the basis of a s 3A murder. He was entitled, by virtue of that fact, to receive a more lenient sentence (given the unintended nature of the killing) than if he had been dealt with on the basis of transferred malice. He received a sentence of 17 years' imprisonment in relation to the charge of murder which, despite its characterisation by the sentencing judge as 'statutory murder', and its essential character as an unintended killing, was nonetheless still murder, an offence that carries a maximum sentence of life imprisonment.

12 There were, as Osborn JA recognised, a number of very significant aggravating features associated with this offending. Not the least of these was the fact that the victim was an entirely innocent woman, the mother of five children, and pregnant with her sixth. There was no justification whatever for the applicant's truly appalling behaviour, which involved extreme and uncontrolled violence.

13 In addition, the applicant did not come before the Court as a person with an unblemished record. He had previously committed numerous offences of varying degrees of gravity. These included, in South Australia, arson, destruction of property and building breaking with intent.

14 Despite the fact that the applicant pleaded guilty, and the various mitigating factors advanced on his behalf, the sentence on charge 1 was, in my opinion, clearly within range. I would refuse leave to appeal.

15 I agree with Weinberg JA and will only add the following. This is a very serious example of statutory murder. It is certainly possible to envisage examples of intentional murder which are less objectively grave than the offence committed by the applicant. Such examples of intentional murder might well attract a lesser sentence than the sentence imposed on the applicant.

16 In my view the sentence in this case was lenient having regard to the matters

set out in [21] of the sentencing judge's reasons. Indeed, the applicant was fortunate not to have received a more severe sentence.

17 For these reasons I would also refuse leave to appeal.

18 I agree with the observations of the presiding judge and the reasons given by my brother Weinberg for refusing leave to appeal.

19 I would add only this. Counsel rightly accepts that the following facts underlie this statutory offence of murder under s 3A of the Crimes Act. The applicant was armed with a loaded .22 rifle. He had kicked in the back door of the house and upon entering, deliberately discharged the firearm with the intent of striking one of its occupants who was fleeing from the house. Instead, the shot struck the deceased, hitting her in the shoulder.

20 The applicant did not attempt to give the victim any aid.

21 This offence was not only one which fell within the higher end of cases for such offending, as the Crown submitted on the plea. It was, in my view, a case within the worst category.

22 That being so, the sentence imposed was, in my view, a very lenient one.

23 The more objectively grave the conduct, the subject of the statutory offence of murder, the greater the alignment one would expect with sentences that would be imposed for intentional murder in similar circumstances.

24 A term of imprisonment in the order of 20 years would not have been out of the question.

[1] R v Michael Terrence Kelly [2013] VSC 144.

Kelly v The Queen [2013] VSCA 336

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Kelly v The Queen [2013] VSCA 336 (22 November 2013)

Parties