R v Ethan McKellar; R v Bevan McKellar

Supreme Court of NSW|2014-09-05|Before: Hulme J, Mr P

Judgment 1R A HULME J: On 11 March 2014 Ethan McKellar and Bevan McKellar were arraigned along with Douglas Dennis and Luke Elwood on an indictment charging that on 1 May 2011 at Ashmont, a suburb of Wagga Wagga, they murdered John Gjedsted, wounded JG with intent to cause him grievous bodily harm, and assaulted John Gjedsted with intent to rob him whilst armed with an offensive weapon. 2On 9 April 2014 the jury returned with the following verdicts: Ethan McKellar: Guilty of murder, wounding with intent, armed assault with intent to rob. Bevan McKellar: Guilty of murder, wounding with intent, armed assault with intent to rob. Douglas Dennis: Not guilty of murder but guilty of manslaughter, not guilty of wounding with intent and of armed assault with intent to rob. Luke Elwood: Not guilty of murder but guilty of manslaughter, not guilty of wounding with intent, and guilty of armed assault with intent to rob. 3I am proceeding to sentence the offenders Ethan McKellar and Bevan McKellar before I have embarked upon hearing the case on sentence concerning the other two offenders. That is for reasons which are not presently known to me but I am assured that it is not material to the present proceedings. I trust it will become clearer when I embark upon the sentencing proceedings for the other offenders.

Personal circumstances of Ethan McKellar 19Ethan McKellar was born in 1992 and was aged 18 at the time of the offences and is now almost 22. 20A Juvenile Justice report prepared in November 2010 noted that Ethan McKellar was of Aboriginal descent and was born in Wagga Wagga to Ms Lillian McKellar. He had no contact with his father. He is the youngest of his mother's nine children (one of whom is deceased). His siblings had a different father. Some of them lived in Wagga Wagga and others in Bourke. Bevan McKellar is one of his brothers. 21He commenced his education in a primary school in Wagga Wagga where he underwent Kindergarten to Year 2 but then moved to live with his mother in Bourke. He returned to Wagga Wagga in May 2008 where he lived with his sister Jodie. His formal schooling progressed to Year 9 level. He commenced a numeracy and literacy program at Wagga Wagga TAFE in September 2008 but discontinued after he was hospitalised for a number of weeks because of injuries sustained in a household "accident". There seems to be some scepticism about whether it was in fact an accident; he had a history of being a victim of domestic violence. 22In 2009 he commenced a horticultural course at TAFE but did not progress because of his unsatisfactory attendance, motivation and ability to follow directions. In 2010 he was working with an employment service agency and undertaking another TAFE numeracy and literacy course. 23It was recorded that a police officer in Bourke had advised the juvenile justice officer that the home life for Ethan McKellar and his siblings in Bourke "would have been nothing short of 'traumatic' with weekly drinking parties that have resulted in numerous incidents of intense violence". The police were cautious about attending the home and the officer wondered what it must have been like for children being raised within it. He described Ethan McKellar having a compliant nature which was a "defence mechanism that has enabled him to avoid conflict and violence". He would generally shower at home but otherwise live on the streets to avoid being at home. Ethan McKellar told the Juvenile Justice officer that he was adamant he would not be returning to Bourke. 24The Juvenile Justice officer noted that Ethan McKellar had a history of minimising his drug and alcohol abuse and had repeatedly indicated an unwillingness to engage in rehabilitation or counselling programs. However, when in custody in 2010 he had "engaged extremely well" with counselling services for such issues. However, he remained reticent in talking about his personal life and was still rejecting efforts to engage in counselling for psychological effects that may be attributed to his traumatic childhood. 25Ethan McKellar has a criminal history that commenced when he was 14 years of age. He told the Juvenile Justice officer that "he offends when he is bored". The offences for which he has been dealt with include larceny; damaging property; being carried in a stolen car; possessing a knife in public; possessing implements to break into or steal a car; and taking a car without the owner's consent. There are multiple entries for some of those offences. The most serious offences are ones of aggravated enter dwelling within intent (for which he received a 7 month custodial order at age 16); reckless wounding (14 month control order at age 18); and take and drive conveyance taken without its owner's consent (13 month control order at age 18). (Control orders were imposed because the matters were dealt with in the Children's Court as he was aged 17 at the time of committing the offences.) 26The period of parole for the last two of those matters ran from 21 January to 22 September 2011. Accordingly he was on parole at the time of the commission of the present offences which is a serious aggravating factor. 27The reckless wounding offence occurred in the early hours of the morning of 2 July 2010 after a party at which a large quantity of alcohol was consumed. The victim was the partner of Ethan McKellar's cousin. There had been an altercation involving Ethan McKellar and the victim which culminated in Ethan McKellar saying, "I'll get you dog". A short time later as the victim was about to get into a taxi to leave, Ethan McKellar approached him with a steak knife and stabbed him in the shoulder causing a 3cm wide 3cm deep wound. 28A psychological report under the hand of Dr Susan Pulman and Ms Amanda White was tendered. In addition to the matters already noted, it included that at school he was regularly involved with fighting, truancy and "serious behavioural issues". His academic work was poor although he said he was literate. 29He reported drinking alcohol now and again; daily cannabis use between ages 15 and 16 and sporadic use after he was released from juvenile custody in January 2011. He had experimented with other drugs. 30The authors noted an assessment by Dr Christopher Lennings, psychologist in May 2014 that Ethan McKellar had a moderately high risk of recidivism for a violent offence. 31He was unable to articulate his feelings regarding the current offences. He did not like to think about them, or about the time he would spend away from his family as a result. 32Psychometric testing revealed a level of intellectual functioning and memory at a very low level; the test results varied but some fell in the "Extremely Low" and "Borderline" ranges. Results of other tests concerned with executive or adaptive functioning (the capacity to regulate and control one's responses in accord with what is happening in a given situation) were inconsistent. Tests were also administered to provide an objective indication of level of effort and these revealed varying levels; some below those expected and others within normal limits. The report authors concluded that "his results on current neuropsychological assessment may not be an accurate reflection of his true cognitive capacity and should be treated with caution". 33The authors concluded that the results of formal testing did not support a diagnosis of intellectual disability. His true cognitive ability was most likely within the Low Average range. There was a possible diagnosis of Attention Deficit Hyperactive Disorder. He was considered to have the capacity to engage in rehabilitation endeavours. He had the capacity to acquire new information and to reason effectively, although his abilities could be undermined by poor attention. 34The report of Dr Lennings to which I have referred was prepared in May this year. He noted that Ethan McKellar was "a particularly inarticulate young man who could provide little expansion in answer to questions". The fact that the consultation was by way of AVL might have been inhibiting to some extent. In any event, he obtained a history that was limited in some respects but broadly the same as the other psychologists reported. He did tell Dr Lennings more about his use of drugs. He said that he was regularly and heavily using cannabis from the age of 15 until he went into custody. He had consumed both alcohol and cannabis on the evening of the offence. 35A sense of hopelessness and lack of insight into his behaviour and psychological state was noted by Dr Lennings and it is a theme that seems to pervade all of the reports. Dr Lennings offered the opinion that Ethan McKellar's "antisocial behaviour appears to reflect the multiple impacts of his local culture, his substance use and his low cognitive ability rather than an entrenched antisocial personality disorder". One shortcoming in Dr Lennings' assessment that there was no evidence of psychopathy was that he understood there was an absence of violent behaviour prior to age 18; the offence of reckless wounding occurred when the offender was aged 17. 36Dr Lennings' assessment of Ethan McKellar having a moderately high risk of recidivism for a violent offence (the assessment of which was by use of a process which was structured yet of moderate validity only he warned) was accompanied by his opinion that "the most likely scenario involves him abusing drugs or alcohol (leading to disinhibition of behaviour), in the presence of anti-social peers (it needs to be recalled that Mr McKellar was the youngest and possibly least sophisticated of his peer group in the current offence and hence the presence of older and/or more sophisticated anti-social peers represents a critical risk factor for Mr McKellar) and without pro social routines to give Mr McKellar an incentive not to offend". 37Dr Lennings considered that to reduce the risk of recidivism there should be a post-prison rehabilitation plan that included substance abuse treatment, assistance with employment or structured pro-social leisure activities, and discouragement from formation of anti-social peer bonds.

Personal circumstances of Bevan McKellar 38Bevan McKellar was born in 1983 and was aged 28 at the time of the offences. 39His criminal history commenced when he was aged 13. He has been dealt with for a variety of offences including receiving; break, enter and steal; entering inclosed lands; car theft; assault; assault occasioning actual bodily harm; malicious wounding; affray; contravention of an apprehended domestic violence order; intimidation; and larceny. There are multiple occurrences of some of those offences. He has been sentenced to full-time custody on quite a number of occasions. 40His past response to parole has been blemished by revocation of parole on three occasions (2004, 2006 and 2009). He has spent the vast majority of the past 13 years in gaol. 41Bevan McKellar was on bail in respect of a charge of assault occasioning actual bodily harm at the time of the commission of the present offences which is a serious aggravating factor. He received a 3 month prison term for that offence on 20 June 2012 and it was specified to take effect upon imposition. Accordingly, the period in which he has been in custody solely referable to the present offences is 3 months less than it otherwise would have been. 42Dr Olav Nielssen was engaged after the trial to prepare a report in respect of Bevan McKellar. In relation to his state of mind at the time of the offence he told Dr Nielssen, "I was intoxicated ... I had a few beers with the boys and I'm drunk ... next thing I know I'm sitting in here", meaning a prison cell. 43He told Dr Nielssen that he could remember little of his schooling. He could "read a little bit but it's not good". He could perform basic arithmetic. He was good at sports. He left school relatively early. His subsequent employment experience was limited. 44He began drinking alcohol when he was young and it had been a problem over the years. He told a nurse who wrote another report that I will mention shortly that, "I was on the grog from about age 11 and was pretty well drunk most of the time when I was not in custody". He gave up drinking alcohol upon his previous release from gaol (the records indicate this was probably in April 2010) and had not consumed any until the day of the offences. He began using cannabis at around age 12 or 13 and had smoked it most days of his adult life. He had also used methamphetamine, but only "from time to time". 45As to his family background, he told Dr Nielssen that he was the fifth of nine children, one of whom had passed away. His father died when he was young. His parents were from the Wangkumara tribal group from the far northwest of the State. He was born in Bourke and spent his early years there. The nurse's report includes that he had "a sad dysfunction[al] childhood" and that he reported "domestic violence and years of physical and emotional abuse from his father ... and his elder brothers". 46Bevan McKellar sustained a head injury in a high impact motor bike accident in June 2006. Reports by a mental health clinical nurse consultant with the Statewide Community & Court Liaison Service dated 13 January 2011 and by an occupational therapist/outreach worker with the South West Brain Injury Rehabilitation Service dated 17 February 2011 were tendered. They indicate that while frontal lobe damage was suspected, he was transferred from Royal Prince Alfred Hospital to Dubbo Hospital but then discharged. There was no appropriate follow up involvement of a rehabilitation service. Testing indicated moderate memory impairment. He required reminders about attending appointments. Instructions given at the beginning of half an hour of conversation were not recalled by the end. 47Another impairment assessed as consequent to the head injury was a difficulty in controlling his anger: "He stated he has found that if pushed his frustration level becomes too great and he 'hits out'; this has, he stated, been difficult to control since his injury". The author of the South West Brain Injury Rehabilitation Service report indicated that it would provide a variety of rehabilitation services to Mr McKellar. However, it was only 3 months later that he was arrested and held in custody for the present offences. 48Dr Nielssen discerned from his consultation with Bevan McKellar that there were signs of frontal lobe injury with significant memory impairment. He said, in part, "he appeared blank and confused, and was slow to respond to questions and his verbal responses were vague in content and simple in form". He noted that typical symptoms of frontal lobe injury involved impairment of emotional regulation, planning, social judgment and impulse control. There can also be increased susceptibility to the effects of alcohol. 49Dr Nielssen made the following formal psychiatric diagnoses: Traumatic brain injury and Substance use disorder. 50Dr Nielssen concluded his report as follows: "Mr McKellar has a combination of disorders and a pattern of past behaviour that would predict further offending. He will require ongoing supervision and support after his release, to minimise the likelihood of resuming alcohol abuse and to help make up for the deficits in memory function and emotional regulation arising from his brain injury. However, it is not possible to predict Mr McKellar's individual circumstances, or the services that might be available when he falls due for release, and hence any estimate of future dangerousness can only be made in the most general terms." 51It was submitted that I should find that there was a causal connection between Bevan McKellar's mental condition arising from his brain injury and the commission of the offences. I accept that difficulties with impulse control and particularly with control of anger are consequences of that injury. But a countervailing feature might be that he was aware of the potential for excessive drinking to adversely affect his behaviour. He told Dr Nielssen that his problem with drinking was "the only reason I come to gaol". However, it must also be accepted that his ability to maintain a resolve to be abstinent was rendered more difficult because of his reduced impulse control. 52If there was a causal connection between Mr McKellar's mental condition and the commission of the offences it is indirect and somewhat tenuous. It is notable that he committed a number of offences of violence, likely influenced to a degree by intoxication, both before and after the accident in 2006.

Some observations common to both offenders 53None of the statutory mitigating factors that are commonly addressed in sentencing judgments, such as remorse, good prospects of rehabilitation and the like, are present here. But the fact that both offenders have derived from a background attended by a significant degree of social disadvantage, characterised by drug and alcohol abuse and domestic violence, is a highly relevant matter and must be taken into account. The negative circumstances of their upbringing have undoubtedly left a lifelong mark affecting their ability to mature, exercise judgment and learn from experience. This, coupled with the low intellectual and cognitive capacity of Ethan McKellar, and the consequences of the brain injury for Bevan McKellar, make them less suitable subjects to be made an example of to serve the need for general deterrence. Moderation of the need for specific deterrence is also called for.

Objective seriousness of the offences Armed assault with intent to rob 54I accept that the jury must have been satisfied beyond reasonable doubt that both Ethan and Bevan McKellar were each aware of the presence of a weapon; that Mr Gjedsted was assaulted at the front door of his home; and that there was a joint purpose to rob him of, what most likely was anticipated to be, a modest quantity of cannabis. As noted in the submissions of Mr Young SC, there was no evidence of a weapon being produced at the time of that assault. 55Generally speaking, that is without reference to individual culpability, this offence is in the middle of the range of objective seriousness for such an offence. Four men attended the victim's home where three of them were found by the jury to have intended a robbery. The jury must have been satisfied that those three were aware of the possession by one or the other of them of a machete and a knife. Their intention was to steal the victim's property. That there was a multiplicity of offenders and the location was the victim's home serve to elevate the seriousness of the offence. The roles of the offenders were indistinguishable in that it was an offence carried out with force of numbers. The role of Bevan McKellar is slightly greater in that he engaged in the assault upon the deceased at the front door. Wounding with intent to cause grievous bodily harm 56Only the present offenders were found guilty of this offence. I have previously indicated my satisfaction that Ethan McKellar actually did the stabbing of JG but he did so with significant assent and encouragement from Bevan McKellar. He must have been aware that his younger brother had a lethal weapon that would permit his encouragement to "kill the cunt" to be carried out. Objectively, Ethan's culpability is more than Bevan's on the basis that he had, and used, the knife, but the difference is not great. 57I accept, however, that the offence was reactive to circumstances. However, the jury must have been satisfied that the offenders foresaw the possible need to deal with the potential intervention of a third party who might try to prevent the robbery. That was an element of the Crown's extended joint criminal enterprise case. The wounding of JG was undoubtedly serious but fortunately medical intervention averted more serious consequences. Given an offence against s 33 of the Crimes Act involves either wounding or the infliction of grievous bodily harm, and that grievous bodily harm can involve quite serious harm up to the level of catastrophic, I would assess this offence, in a general sense, as being below the middle of the range of objective seriousness; but it is certainly not anywhere near the bottom of the range. Murder 58I accept the submission made by Mr Young that by the time of the events out the front of the neighbour's property, the initial intention to rob Mr Gjedsted had evaporated. I accept that what there occurred was more an expression of the offenders' displeasure at the resistance that had been shown by Mr Gjedsted and his son. The stabbing of Mr Gjedsted was not something that was planned but something that occurred relatively quickly. However, it was something that was done by Ethan McKellar with at least an intention to inflict grievous bodily harm and the possible infliction of grievous bodily harm was something that Bevan McKellar foresaw as a possible occurrence in carrying out the joint assault. 59I do not accept the suggestion that this was in the nature of "a robbery gone wrong". I accept the Crown Prosecutor's submission that once a plan to rob became futile, the offenders had the option of leaving; but they remained and engaged in the pointless but murderous assault of Mr Gjedsted. 60I accept that it is a reasonable possibility, as Mr Young submitted, that the garments of Bevan McKellar that were found turned inside out on the ground at the scene of the final assault were indicative of a continuing struggle between him and the deceased there. How this may have related to the attack involving all of the offenders upon Mr Gjedsted is difficult to infer in the absence of any of them having given evidence about it. 61Features that render this offence more serious than it otherwise might be include that it occurred in a robbery context (although I hasten to add I am conscious of the need to avoid double counting) and that there were multiple assailants. I assess the objective seriousness of the murder of Mr Gjedsted, in a general sense, as being in the middle of the range but the individual objective culpability of the two offenders is a little different. Ethan McKellar's culpability must be considered as greater than that of his brother on account of their different states of mind and that it was Ethan who actually drew the knife and used it.

Moral culpability 62I have indicated my view of the objective seriousness of each of the offences which is, of course, an important aspect in the assessment of sentence. I have stressed, however, that I have done so "in a general sense". By that I mean I have put aside matters that are relevant to the moral culpability of the offenders. Matters that I have discussed when earlier reviewing their personal circumstances relating to their background of social disadvantage, their impaired mental functioning and, in the case of Ethan McKellar his young age and his immaturity, have the result that their moral culpability for the commission of these offences is less than it otherwise would be.

Victim impact statements 63Ms Jay Gjedsted and JG provided the Court with victim impact statements. They are very moving accounts of the unfathomable sadness and loss that they have suffered as a result of the brutal taking of their father's life. Neither mere words, nor the sentences I impose, can possibly assuage their grief. But it is important that the impact of the offenders' crimes upon the loved ones of their victim be recognised and never forgotten. Again, I extend my sincere condolences.

General matters relating to sentence 64Each offender has been in custody since their arrest on 3 May 2011. It is appropriate to commence the sentences for Ethan McKellar from that date. In the case of Bevan McKellar I propose to commence his sentences from 3 August 2011 to allow for the 3 month sentence for an unrelated matter he served in 2012. 65I propose to accumulate the sentences partially in order to reflect the different nature of each of the offences and, particularly, that there were two victims. The degree of accumulation will be substantially moderated by the need to have regard to the totality principle. 66It was submitted that special circumstances could be found so as to warrant a longer than usual period on parole. I have considered those submissions but have determined that the usual period of parole will be more than sufficient to accommodate the needs of each offender for a variety of assistance in reintegrating into the community after release. I do propose, however, to make an adjustment so that the usual proportions are reflected in the overall sentence.

Sentence Ethan McKellar 67Convicted. 68Count 3 (Armed assault with intent to rob): Sentenced to imprisonment comprising a non-parole period of 3 year 9 months and a balance of the term of the sentence of 1 year 3 months. The sentence is to date from 3 May 2011 and will expire on 2 May 2016. 69Count 2 (Wounding with intent to cause grievous bodily harm): Sentence to imprisonment comprising a non-parole period of 6 years and a balance of the term of the sentence of 2 years. The sentence is to date from 3 May 2012 and will expire on 2 May 2020. 70Count 3 (Murder): Sentenced to imprisonment comprising a non-parole period of 14 years and a balance of the term of the sentence of 6 years. The sentence is to date from 3 May 2015 and will expire on 2 May 2035. The offender will become eligible for release on parole at the end of the non-parole period which will expire on 2 May 2029. 71That is a total sentence of 24 years with a non-parole component of 18 years. Bevan McKellar 72Convicted. 73Count 3 (Armed assault with intent to rob): Sentenced to imprisonment comprising a non-parole period of 3 year 9 months and a balance of the term of the sentence of 1 year 3 months. The sentence is to date from 3 August 2011 and will expire on 2 August 2016. 74Count 2 (Wounding with intent to cause grievous bodily harm): Sentence to imprisonment comprising a non-parole period of 6 years and a balance of the term of the sentence of 2 years. The sentence is to date from 3 August 2012 and will expire on 2 August 2020. 75Count 3 (Murder): Sentenced to imprisonment comprising a non-parole period of 14 years and a balance of the term of the sentence of 6 years. The sentence is to date from 3 August 2015 and will expire on 2 August 2035. The offender will become eligible for release on parole at the end of the non-parole period which will expire on 2 August 2029. 76That is a total sentence of 24 years with a non-parole component of 18 years.

Amendments 17 October 2014 - Name anonymised Amended paragraphs: [1]; [63] 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: 17 October 2014

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