R v Grimmett [2011] VSC 506

2 You were charged with Ms Kelly's murder, but acquitted of that offence. You pleaded guilty to manslaughter in the presence of the jury, but the Crown declined to accept that plea. You are nonetheless to be sentenced on the basis that you did plead guilty to manslaughter, and you are entitled to call that plea in aid.

3 The circumstances surrounding the offence may be briefly stated. You met Ms Kelly at the Union Hotel in Ascot Vale in the early evening of Saturday 3 July 2010. You had not previously known her. Thereafter, the two of you engaged in what was described as flirtatious behaviour. You were both drinking heavily. At various times, tension arose between the two of you, culminating at one point in an incident where you flicked a drink coaster in her direction.

4 Ms Kelly left the hotel shortly before you did. She had earlier given you a business card with her telephone number on it. You dialled that number from your mobile phone and arranged to go to her home where you anticipated that the two of you would have sex. You were driven to Ms Kelly's home by taxi.

5 After your arrival, there was more alcohol consumed. You both went up to her bedroom, and sexual activity took place. You were so drunk that you were unable to maintain an erection. Nonetheless, Ms Kelly asked you to stay the night. You told her that you could not do so because you were married, and had to get home. Previously, whilst at the hotel, you had told Ms Kelly that, although you were married, you were effectively separated from your wife. That was untrue.

6 Ms Kelly responded by venting her anger. She slapped you in the face. You lost self-control and punched her to both the right and left sides of her face. The blows were severe. The punch to the left side of the face resulted in a constellation of fractures to the bones across the jaw, cheek and eye socket.

7 You also grabbed Ms Kelly by the throat. The 'horns' of her thyroid cartilage were fractured, and the evidence was that an injury of this kind required the application of considerable force.

8 By your actions, you caused the death of Ms Kelly. You did not seek assistance, but chose rather to leave the premises. You returned home and consumed more alcohol. You thought about what you had done, and were determined to conceal your involvement in this offence as best you could. You took the clothing that you had been wearing that evening to a local reserve, and set fire to it.

9 Thereafter, you proceeded as though nothing untoward had occurred. You played football with a local seniors team, as planned. The evidence was that you played reasonably well.

10 It did not take the police very long to track you down. There was CCTV footage of what took place at the hotel, almost from the moment you had arrived. That footage showed clearly your involvement with Ms Kelly, and with others. In addition, there was evidence of various telephone calls to and from Ms Kelly's phone in which she spoke of having met a man at the hotel, and having invited him to her home. Ms Kelly also spoke of an altercation that took place shortly after your arrival at her home, but before the two of you went up to her bedroom.

11 In addition, you left behind at Ms Kelly's home a Collingwood football scarf that you had been wearing on the evening in question.

12 When the police arrived at your home to arrest you, you cooperated fully with them. You took them to the spot at the reserve where you had burnt your clothes. You participated in a record of interview in which you admitted having punched Ms Kelly twice to the face, and grabbed her by the throat. You told the police that you had not intended to kill her or cause her serious injury. Nonetheless, you were charged with murder.

13 You made a number of offers, from an early stage, to plead guilty to manslaughter. Not surprisingly, those offers were rejected. Notwithstanding that fact, you are, as I have said, to be given credit for having made those offers and for having pleaded guilty to manslaughter in the presence of the jury.

14 On the plea, it was submitted, on your behalf, that I should sentence you on the basis that, when you punched Ms Kelly and grabbed her by the throat, you were unaware of the likely consequences of your actions, and had formed no intent other than the most basic intent to assault Ms Kelly. I reject that submission. The jury, by their verdict, were not satisfied beyond reasonable doubt that you intended to kill or cause really serious injury. Almost certainly, it was your state of intoxication that led them to that conclusion. Nonetheless, I am entirely satisfied, from all of the evidence, that you intended not merely to assault Ms Kelly but to cause her significant injury. In conformity with the jury's verdict, that degree of injury falls short, of course, of really serious injury.

15 I arrive at that conclusion based upon my own assessment of what you were able to do in the period both leading up to the commission of this offence, and shortly thereafter. While it is plain that you were heavily intoxicated, the evidence shows that you were quite capable of acting purposefully in a number of different ways. For example, you were able to engage in seemingly coherent and rational conversation with various individuals at the hotel. After you left the hotel, you were able to dial Ms Kelly's number and direct the taxi driver to her home. When you spoke to the police during the course of the record of interview, you had a clear and detailed recollection of all that had occurred at Ms Kelly's house. You were able to make the decision to burn your clothing in an effort to conceal your actions from the authorities. You were also able to play football on the Sunday afternoon, some 12 or so hours after you killed the deceased.

16 It is inconceivable to me that when you punched Ms Kelly with such force at least twice to the face, and forcibly gripped her by the throat, you did not intend to cause her significant injury. Your anger at the time, and loss of self-control, suggests that this is precisely what you intended to do. A drunken intent is, of course, nonetheless an intent.

17 It was submitted that I should view your conduct as less morally culpable because you were at the time suffering from a depressive condition. You had been prescribed anti-depressant medication. Your depression stemmed from a combination of marital difficulties, and financial losses that you had sustained.

18 Evidence was led on the plea to support this submission. Patrick Newton, a consulting forensic and clinical psychologist, prepared a detailed report, and gave oral evidence as well. He spoke of your depression, and your problems with alcohol and anger management. He noted that you had a history of alcohol abuse, and that you fell just short of being alcohol-dependent. He further noted that you had a prior conviction involving violence towards a female security guard at Crown Casino. His prognosis regarding your possible re-offending was described as 'guarded'.

19 Under cross-examination, it emerged that there were several significant matters that you omitted to mention to Mr Newton when he interviewed you on the one occasion that led to the preparation of his report. You did not tell Mr Newton that after the commission of the earlier offence against the female security officer, you underwent counselling, and a program of anger management therapy that lasted for a considerable period. That was, in my opinion, a significant omission, and causes me to have some reservations about the extent to which I can rely upon Mr Newton's opinions as expressed in his report.

20 Mr Newton was of the view that your depressive condition, coupled with your evident state of intoxication, reduced your capacity to reason clearly about the consequences of your actions. However, he made it perfectly clear that your intoxication played by far the more dominant role in affecting your judgment and ability to reason. He readily accepted that your depressive condition was, at most, a relatively minor consideration in understanding why you acted as you did. I do not think that Mr Newton's evidence, particularly in the light of his cross-examination, warrants any significant discount under what might be termed the first limb of Verdins.[1]

21 Mr Newton went on to say that, by reason of your depressive condition, you would find imprisonment more burdensome than prisoners not suffering from a major depressive disorder. With some reservations, I accept his evidence regarding the additionally burdensome nature of imprisonment in your case.

22 You are therefore entitled to some limited moderation of your sentence based upon your depressive condition.[2] Indeed, counsel on your behalf on the plea conceded that, should Verdins apply, any moderation of the penalty imposed would not be significant.

23 This leads me to say something about your background. You are now aged 36. Your parents were 16 years of age when you were born and separated when you were around two years of age, shortly after your younger brother was born. Your mother moved you to Queensland and then North Queensland when you were aged seven and eight respectively. Your half-sister was born when you were ten years old, and you were involved in her day-to-day care. Your mother worked long hours to provide for the family.

24 You had no or very little contact with your father until you were around 12 years old when you returned to South Australia and attempted to live with him. This was unsuccessful and you returned to your mother's care. Your relationship with your mother was intensely strained and you left home to live independently at age 14. You have essentially been fending for yourself since that time. You now have a strong and supportive relationship with your mother and good relations with your half-sister. You have little contact with your brother and are estranged from your father.

25 Your schooling was affected by repeated moves, and you were a disruptive and unruly primary school student. You 'acted out' and were taken to see a number of psychologists for help. Despite indications of above average intelligence, you adjusted poorly to secondary school and left school after completing year 9. You were persuaded to return to complete year 10, before leaving school permanently at the end of that year.

26 You met your wife Lisa in 1995. You were married in 2003. There have been substantial strains in your relationship, many of them relating to financial difficulties, and to your drinking. After suffering two miscarriages, you and your wife now have two sons who are two and three years old. Your wife experienced post-natal depression after the birth of your second son and, although you were overjoyed at being a father, you found parenthood difficult.

27 Your wife returned to her hometown of Adelaide with your children following your arrest for this offence. She has brought your children to visit you whilst you have been in custody on about five or six occasions, and you have daily telephone calls during which you speak to your children. You now have a strong bond with your sons and are determined to have a role in their lives. This is very much to your credit.

28 I turn briefly to your work history. When you moved out of home you worked part-time as a driveway attendant until you left school. When you were 16, you came to Melbourne and worked with Geelong Fisheries before returning to Queensland at age 17 to work in furniture delivery. You were invited at age 17 to train with the Brisbane Bears, but did not pursue that offer. At age 18, you commenced hospitality work in Adelaide and you continued that sort of work for several years. You also engaged in television work, including commercials and television presenting. You were offered a role on a long-running television series which you did not accept. At one stage, you worked for an Australian bungy jumping company in Greece and then Russia.

29 At the time of your arrest, you were employed as the national sales manager with a security company. You were good at your job, and not long before your arrest you were earning a good wage.

30 You have, as I have indicated, admitted prior convictions. In 1997, you were convicted of resisting police and fined. I was told this was an alcohol-related offence. I do not consider it to be of any relevance for present purposes. You also have a prior conviction for a driving related offence which, again, I regard as irrelevant for present purposes.

31 Importantly, however, in 2007 you were convicted of intentionally causing injury in relation to the female security officer of whom I have previously spoken. I was shown, on the plea, CCTV footage of that incident. You delivered a massive blow to the security officer's face with a clenched fist, knocking her to the ground, and causing her a number of residual injuries. The punch that you threw was unprovoked, and resulted simply from her entirely justifiable refusal to admit you to the Casino given that you were inebriated, and dressed inappropriately. You were subsequently dealt with leniently for that offence, being put on an intensive correction order. Many would say that your conduct warranted a term of actual imprisonment.

32 That prior conviction in 2007 is particularly troubling in the context of this case. It shows that you have a real problem with controlling your temper, particularly when you have been drinking. It also shows an attitude towards women which is utterly repugnant and must be strongly condemned. Society will not tolerate violence of that kind. That is particularly so when it is inflicted by strong, able-bodied men like yourself, towards relatively defenceless women.

33 Of course, you are not to be punished again for your prior offending. The relevance of your previous conviction is that it shows the need for any sentence that I impose to take into account the factor of specific deterrence. It also justifies Mr Newton's

opinion that your prognosis must be viewed as 'guarded'. That is a view that I share.

34 It was submitted on behalf of the Crown that in this case your intoxication should be viewed as an aggravating factor, having regard to your prior offending. Your counsel accepted that this was a proper approach in the circumstances of this case, but submitted that it should not be given much weight. It is unnecessary for me to go as far as the Crown submitted. It is sufficient to say that, having regard to your knowledge of the effects of alcohol upon you, and your inability to exercise restraint when angered, your inebriation provides no justification whatever for your actions, and most certainly is not a mitigating factor.

35 I have had regard to the Victim Impact Statements that were prepared in this matter. Janine Kelly was, by all accounts, a lively and vivacious woman who enjoyed life, and was greatly loved by her family and friends. She died a terrible and pointless death. I accept that you acted as you did on impulse, through anger and without any pre-meditation. However, this in no way renders your offence anything less than a serious example of the crime of manslaughter.

36 It was submitted that this was essentially a motiveless crime. In one sense that is true. However, there is a simple and clear explanation for your conduct. The reason that you acted as you did was because, fuelled by alcohol, you lost all self-control in response to a minor provocation on the part of Ms Kelly who had merely slapped you and told you to get out of her house. It goes without saying that your reaction was totally disproportionate, and entirely without any semblance of justification. In these circumstances, any sentence that I impose must act as a deterrent, both general and specific, and must have the effect of expressing the community's complete denunciation of your conduct.

37 Without in any way diminishing the nature and gravity of your offending, I must balance against these considerations, matters of mitigation which go in your favour. In that regard, I have taken into account your plea of guilty to manslaughter. Moreover, I accept that that plea was itself indicative of some remorse.[3] It is obvious that your plea, if accepted, would have had considerable utilitarian value. The fact that you had virtually no defence to a charge of manslaughter does not detract from that utilitarian value.

38 Mr Newton was of the view that you were genuinely remorseful. So too was Andrew Edwards, a character witness who was called on your behalf. I accept that evidence with this reservation. Much of the remorse that you expressed related to your own situation, and that of your family, though I accept that you also expressed concern for the family of the deceased.

39 I have had regard to the character references provided on your behalf and the strong support you have, of some family members in particular. I have also taken into account your solid employment history, and your co-operation with the police once they attended your home on the day of the offence.

40 I have also had regard to current sentencing practice for the offence of manslaughter. The Crown submitted that this was a particularly bad example of that offence, and invited me to use Sherna v The Queen,[4] a case in which a sentence of 14 years with a minimum of 10 years was upheld on appeal, as an appropriate comparator. Indeed, the Crown submitted that in some ways your offending should be viewed as more serious than that of the accused in Sherna. The Crown noted that in Sherna the accused, who had strangled a women with whom he had been in an unhappy relationship for many years, had pleaded guilty to manslaughter, just as you had done. However, the accused in that case had no prior convictions and was said to have good prospects of rehabilitation.

41 Each case must be considered in the light of its own particular facts. While Sherna might be thought to provide some guidance of the most general kind, the actual circumstances surrounding the killing of the deceased in that case were, in my view, significantly worse than those present in your case. Moreover, the decision of the Court of Appeal in Sherna determined only that the sentence imposed in that case, whilst severe, was not manifestly excessive. For that reason, the case provides only limited assistance. The same is true of the other cases cited to me by the Crown, and the Sentencing Snapshot for manslaughter which I have considered.

42 Having regard to all of the facts in this case, the sentence of this Court is that you be imprisoned for a term of 11 years. I fix a non-parole period of eight years.

43 You have been in custody since 5 July 2010, and I declare pursuant to s 18(4) of the Sentencing Act 1991 that you have already served 464 days in custody, not including today. I direct that the fact that this declaration was made and its details be noted in the records of the court.

44 I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty, I would in the circumstances of this case have imposed a sentence of 13 years with a non-parole period of 10 years.

I certify that this and the 119 preceding pages are a true copy of the reasons for Sentence of Justice Weinberg of the Supreme Court of Victoria delivered on 12 October 2011.

[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269. See, generally, R v Vuadreu [2009] VSCA 262, [37] where the Court of Appeal considered that Verdins has no application unless there is in effect a causal link, that is some 'realistic connection', between the condition and the offending, and that the Verdins principles should be regarded as exceptional.

[2] See, eg, Pato v The Queen [2011] VSCA 223.

[3] See R v Tasker [2003] VSCA 190; (2003) 7 VR 128, [24] (Eames JA).

[4] [2011] VSCA 242 (Sherna).