R v Hudson [2008] VSC 389

Supreme Court of Victoria|2008-09-22|Before: COGHLAN J

Criminal law - Plea - Murder - Two counts of attempted murder - Intentionally causing serious injury - prohibited person using unregistered firearm - offending took place in context of bar/nightclub scene - Prisoner had taken crystal methylamphetamine ("ice") and drunk excessive quantities of alcohol - Prisoner carrying a six shot semi-automatic pistol - shooting occurred around 8am in Melbourne's central business district - Prisoner has limited memory of the incident - 30 years old at time of sentence - had commenced drug taking about ten years earlier - member of motorcycle clubs - lifestyle - no psychiatric history - prior convictions for violence - head sentence of life imprisonment with a non-parole period of 35 years.

2 There was a further count on the presentment that on 12 June 2007, you, being a prohibited person, used an unregistered firearm. I will deal with the circumstances of that offence later. The importance of it for present purposes is that it involved the use of the firearm which you used on three of your victims six days later.

3 You are relatively young. You were born on 24 May 1978. You have a number of prior convictions from eight court appearances.

4 Not surprisingly, none of your earlier offending approaches in seriousness your current charges. You do, however, have a prior finding of guilt for assault occasioning actual bodily harm in 2001 for which you were not convicted. Further, in 2003 you were convicted of causing grievous bodily harm by an unlawful act, maliciously destroying property, and assault occasioning actual bodily harm for which you were imprisoned and served about eight months. Those are your most recent prior convictions for violence. You have other prior convictions, the most recent of which were for fraud. Although for conduct different from your present offending, that appearance is relevant to the extent that you served another term of imprisonment and part of the sentence imposed on 5 May 2006 was suspended for two years. There were about ten and a half months of that sentence still to serve when you committed these offences.

5 The conduct for which you were convicted in 2003 had some features which were similar to your conduct on this occasion. I was told on your plea that the conduct involved an attack by you on your then partner and a further attack upon a security guard who came to her assistance. The term of imprisonment you received on that occasion appears to have had little deterrent effect and no salutary effect upon you.

6 The conduct relating to Count 1 on the presentment can be described briefly. In the early hours of Tuesday 12 June 2007, you were at Spearmint Rhino, a "club" in King Street, Melbourne. You came into contact with the Collingwood Australian Football League player, Alan Didak. You appear to have been intent on impressing Didak. You offered him a lift home, but on the way took him to visit the Hells Angels clubhouse. Shortly after leaving King Street, when driving your Mercedes Benz CLK 320 coupe over the Bolte Bridge, you produced a handgun and fired a number of shots out of the open driver's side window. You then drove to the Hells Angels East County clubhouse situated in Davis Street, Campbellfield. You, Didak and an unknown male remained at the clubhouse for some time, drinking. The three of you left together in your car with you driving. At about 4.45 a.m. you were observed by local police driving fast along Truck City Drive, Campbellfield. At first you managed to avoid interception but the police saw you again a few minutes later. You fired some shots into the air when the police were following you. You were travelling west along Northbourne Avenue, but before reaching the intersection with the Hume Highway, you stopped your car in the middle of the road and pointed the firearm out the window in the general direction of the pursuing police and fired further shots. As a result, you managed to make good your escape. You drove back towards the city and dropped Didak off near the intersection of Flinders Street and Wurundjeri Way.

7 Your behaviour on that occasion has never been explained. It is not of great significance when compared to the other matters which bring you here except that it shows your general attitude. It involved the use of the same firearm you used on 18 June 2007.

8 As a result of convictions you received in July 2004, you were disqualified from driving for four years, you were on a suspended sentence and you were deemed a prohibited person when you used the firearm on the night of 12 June 2007. The final part of your conduct on that night showed a determination to avoid arrest. All of that demonstrates a disregard for the law and in particular for orders made by courts. It seems clear that you had decided that you would do whatever you liked, rather than behave in accordance with ordinary social mores. The maximum term of imprisonment for the offence on Count 1 is 15 years.

9 In the narrative, that brings us to the events of 18 June 2007. That was a Monday morning and by the time these events reached their fatal and near-fatal conclusion, ordinary members of the community were arriving at work.

10 You are first seen to enter the Spearmint Rhino shortly prior to 3.00 a.m. The Spearmint Rhino has CCTV for security and other purposes. You attended that club occasionally, sometimes as much as twice a week. You were known there to the manager, Steve Kyriacou, and some of the dancers who were employed there.

11 You remained with others at the Spearmint Rhino until about 5.00 a.m., when you and a number of others from the Spearmint Rhino moved next door to a venue called Barcode which is also equipped with CCTV.

12 At some stage when you were at Barcode, you bought drinks for Marie Gamard and Carly Rheinberger, but you did not appear to be drinking anything other than water.

13 Although it is not clear, there is some evidence from these witnesses that you might have been involved in taking drugs while at Barcode. Marie Gamard said:

"Carly and I headed to the toilet area however we could not see him. We then banged on the toilet doors and called out for him. We then found him in the disabled toilet. Carly opened the door and asked him what he was doing. When she said this Huddo did not appear to comprehend what Carly had said. She then asked him if he was using drugs and that if he was that she wanted some. Huddo replied that he was not using. We then returned to the bar and got a drink. Huddo followed us shortly after." (Depositions page 390).

"When we entered Barcode we looked around for Huddo however he didn't appear to be there. I then observed Nina and Nadia at the bar. We both approached them and spoke to them. Marie then rang Huddo's phone and he informed her that he was in Barcode. We looked around for him however we could not see him. I then said to Marie he must be in the toilets. We walked over to the male toilets and could not see him in there. We then attended to the disabled toilet and knocked on the locked door. When this door was eventually opened I observed Huddo standing in there on his own. Huddo appeared a little agitated and distant. I asked him if he was taking any drugs and told him that if he was that I wanted some. Huddo told me that he was not using anything. He told me that he was off the drugs as he was back in training and trying to get fit again. I then observed half of a long drinking straw floating in the bottom of the pan. I asked Huddo what the straw was doing in there and he replied that he just threw it in there and gave me further indication that he didn't use any drugs." (Depositions pages 397-398).

15 There did not appear to be anything out of the ordinary about your behaviour as observed on the various CCTVs up until about 7.21 a.m. At that time, Autumn Daly-Holt was performing an intimate erotic dance for Steve Kyriacou. You leaned over from a ramp above the couple and lifted Ms Daly-Holt up by the hair, angrily and aggressively.

16 At some time about then, Kaera Douglas, with whom you were involved in an occasional relationship, arrived at the bar. She had come there at your demand or request.

17 It is not clear exactly when, but at some stage you left Barcode and went around the corner, finishing up in Highlander Lane, which is behind Barcode. You there spoke to a Mr Cocossis. Mr Cocossis said this:

"It was an uncomfortable, unnerving situation because I could see this guy was off his face. This guy was racing, by this I mean off his face to the point where his movements and speech were extra fast, he was on edge." (Depositions page 954).

18 You showed Mr Cocossis a tattoo across your abdomen and boasted membership of the Hells Angels. When you lifted up your top, it became clear that you were armed with a handgun. You made two or three attempts to pull Mr Cocossis' hand onto the handgun. You told him you had had trouble at Barcode.

19 You returned to Barcode. There were various movements by yourself, Douglas, Kyriacou and Daly-Holt which can be observed on the CCTV. You can be seen leaving Barcode.

20 At about 7.55 a.m., Ms Daly-Holt, who had by then collected her belongings, started to leave Barcode. She gave every impression of being very drunk and had great difficulty negotiating the stairs down into King Street. She left the premises briefly, then returned and eventually sat on the steps inside the door. She attempted to put on her cardigan or jacket.

21 You came back to the entrance of Barcode. You had a short conversation with Ms Daly-Holt. You kicked her to the face with your left foot, you then grabbed her by the hair and punched her to the face. You then threw her off the stairs and out onto King Street and threw her bags at her. Ms Daly-Holt got to her knees and, after a three step "build-up", you kicked her to the face with your right foot. That kick was delivered with as much force as you could muster. Ms Daly-Holt fell backwards and appeared to be unconscious.

22 The attack was brutal and in the way I have described, sustained. Ms Daly-Holt suffered fractures to the eye socket and nasal bones, nerve damage and bruising to the face. She required extensive treatment from oral and facial surgeons. She has some damage to the nose which will require further surgery and some of the nerve damage to her face appears permanent. Her physical recovery has otherwise been quite good.

23 Her victim impact statement indicates that from her perspective, her life has changed forever. Her financial loss has been substantial. She regards her professional future as very difficult and has had trouble finding suitable employment.

24 She concludes her victim impact statement by saying:

"Whilst I have been caught up in immense trauma and emotional distress because of this incident, the loss of another human being's life at the hand of Hudson is something I never forget. Brendan Keilar was helping someone else in need and he was killed and two other people were seriously wounded, as well as myself. Hudson is totally responsible for all the pain, loss and anguish his actions caused on June 18th."

25 It does not seem that Ms Daly-Holt did very much which could have upset you on this night, let alone give foundation for the attack which you launched upon her. You appeared to be offended by her somewhat suggestive behaviour towards Mr Kyriacou but no more than that. The attack on Ms Daly-Holt inside the club is a prelude to your later attack. It appears to be completely, "out of the blue". The attack stops almost as quickly. You have not been charged with respect to that conduct. It is relevant only in that it forms part of the background to your offending on this morning.

26 At 8.00 a.m. after the attack on Ms Daly-Holt in King Street, you returned to Barcode to collect Ms Douglas. You appeared calm and unemotional when you signalled to Ms Douglas to join you. Ms Douglas left Barcode and found Ms Daly-Holt on the footpath outside. Ms Douglas returned to Barcode to get assistance for Ms Daly-Holt. Ms Daly-Holt was taken to Royal Melbourne Hospital by ambulance where she was treated for her injuries.

27 You waited for Ms Douglas at the corner of King Street and Flinders Lane and, as she approached, you showed her the handgun you had down the front of your pants.

28 You forced Ms Douglas to walk with you to the intersection of William Street and Flinders Lane. You took her into the basement car-park of Swann House on the south-east corner of the intersection and began to threaten her with the handgun. Ms Douglas was screaming and crying. Mr Emmanuel Borg, the building manager, came to investigate. He saw that you had Ms Douglas pinned to the wall of the stairwell with your left forearm against her throat. You were holding the handgun in your right hand, pointing downwards. You pointed the gun at Mr Borg, who got out of the building and ran over William Street to number 15 and asked for the police to be called.

29 Ms Douglas managed to escape out into Flinders Lane. She tried to get into a taxi, but was not able to. You caught up with her and grabbed her by the hair and arms and began to drag her away from the taxi. She was calling for help.

30 Brendan Keilar, who was walking west along Flinders Lane, and Paul De Waard came to her assistance. They called out to you words to the effect of, "what's going on here?". You responded by pulling the handgun from your pants. You shot Mr Keilar, Mr De Waard and Ms Douglas. They fell to the ground and you shot Mr Keilar and Mr De Waard again.

31 Your gun, which was a six shot semi-automatic pistol, was then empty.

32 These events are all the more terrifying because of the simple way in which they occurred.

33 On the plea, I described this case as being one which shocked the public conscience and so it does. These events occurred shortly after 8.00 a.m., close to the centre of the city. It is an area through which many people were moving on their way to work. The events occurred at a place where ordinary people are entitled to feel safe. Two of your victims were not known to you and were shot for doing no more than trying to help the young woman you were assaulting. She was shot too. None of your victims represented any threat to you, imagined or otherwise. Your conduct is all the more chilling because it remains unexplained. It was calm and deliberate. Afterwards you put the gun down the front of your pants and walked off down Flinders Lane towards Queen Street. You walked quickly, but did not run. Once you reached Queen Street, you walked quickly south down to Flinders Street. You started to run just around the corner in Flinders Street near Bond Street. You removed your jacket which you wrapped around the pistol. You threw the jacket and pistol into a construction site on the corner. Your apparent calm and calculated response struck many of the witnesses.

34 The jacket and handgun were recovered. In his statement, which I received under a Notice of Additional Witness, Senior Detective Alan Pringle says that he examined the handgun found at that site. It contained no unfired ammunition. He described it as a .40 Smith and Wesson calibre Llama brand Minimax Model single action self-loading pistol. The gun would ordinarily fire six shots. Six bullets and six cartridge cases were recovered.

35 You had fired three shots into Mr Keilar, two shots into Mr De Waard and one into Ms Douglas. The gun was found empty of ammunition. I have inferred that after you fired the shots at the corner of Flinders Lane and William Street, the gun was empty.

36 That is of some significance since it was argued on your behalf at the plea that a number of passengers on a number 55 tram which travelled east in Flinders Lane and turned south in Market Street observed some of the events. In particular, they saw you leaving the scene. Several of them saw you with the gun under your chin and at least one thought that you tried to commit suicide.

37 That material was put on the plea as showing signs of regret or remorse for what you had done. I am satisfied that you fired your gun at your victims until it was empty and would not fire anymore. I do not accept that the action of putting the gun under your chin was suicidal or shows any sign of regret. I form no other conclusion about it.

38 After disposing of the weapon, you continued to run along Flinders Street. You were last seen at the intersection of Flinders Lane and Elizabeth Street, not far from the Punt Hill apartments where Ms Douglas lived and where you stayed with her from time to time.

39 You were apprehended when you surrendered yourself at the Wallan Police Station at about 4.20 p.m. on 20 June 2007. You effectively made a "no comment" record of interview, but you did volunteer, at question 57:

"I just wanted to say - to say sorr -, just say sorry for anything that has happened."

40 You later agreed to plead guilty at your committal without any witnesses being examined. I am told by your counsel that that happened on your initiative. Your letter containing those instructions was read to the court.

41 Brendan Keilar died from the gunshot wounds he received. He died at the scene. One bullet passed through his left thigh. The other two bullets caused serious injury to the chest and abdomen, including major blood vessels, his lungs and liver. His death would have been swift. You shot him twice more after he fell to the ground.

42 Mr De Waard was shot twice, once when he was standing and once when he was on the ground. He was shot once in the stomach, which caused substantial internal wounds, and once through the buttock, which also caused severe internal injuries. As a result of his determination to live and the skill of the large medical team at the Royal Melbourne Hospital who had his care, after three hours of concurrent chest and abdominal surgery, he survived. His convalescence has been long, painful and difficult. He still has a bullet deep in the region of his pelvis.

43 Ms Douglas was shot once in the upper left quadrant of her torso. Her stomach was perforated, her pancreas and duodenum were damaged. She lost a kidney. The bullet struck the transverse processes of her lumbar spine and exited through her back. Her recovery was slow.

44 On your plea, Dr Danny Sullivan, a Consultant Psychiatrist, and Mr Jeffery E. Cummins, a Consultant Forensic Psychologist, were both called to give evidence. Reports from them were tendered on the plea. In addition, a report from Dr Nicole Lee was tendered. Dr Lee is the Head of Research for the Turning Point Alcohol and Drug Centre. She is a Senior Research Fellow at Monash University. She is an expert on the effects of amphetamines. In her report she described the effect of amphetamines and methylamphetamines, alone and in combination with other drugs. She had not seen you personally but had seen Dr Sullivan's report. She concluded:

"Based on Dr Sullivan's assessment, and emphasizing that I have not personally had contact with Mr Hudson, the amount of amphetamine use reported, particularly in combination with other drugs that have similar affects, is likely to significantly increase the risk of aggression and violence, limit ability to inhibit aggressive responses and limit insight into the consequences of these actions at least whilst intoxicated and possibly some hours or days after this."

45 One difficulty arising on this plea is that the only version from you about these events which I have is that contained in two reports, one from Dr Sullivan and the other from Mr Cummins. Those versions are very limited, and throw little light on your offending. You say that you have little recollection of the events of 17 June 2007 and the morning of 18 June 2007.

46 You reported that you had been using excessive quantities of amphetamines, crystal methylamphetamine (ice) and drinking excessive quantities of alcohol. It seems that may well be the only explanation for your conduct on the morning of 18 June 2007. The community might well find such explanation inadequate, or at the very least, unsatisfying.

47 Dr Sullivan and Mr Cummins reported that you commenced drinking at the age of 16 and by the time you were 18 you were a regular drinker. Drink was a problem for you at an early stage. You have two prior convictions for drink driving. You have regarded your tolerance to alcohol to increase when taking other stimulants. You have been a regular but intermittent user of amphetamines. Dr Sullivan in his report dated 27 August 2008 said:

"But after being assaulted in 2006 he had increasingly used 'speed' and 'ice', snorting and smoking but not injecting. He related to me that he would use up to 2g per day and would take this for up to a week at a time before he needed to sleep for a couple of days. He told me he would use up to ½ oz of amphetamines over this period. He reported that he enjoyed feeling "up", happy, drinking and socialising. However he noted a propensity to paranoia, often thinking that someone was coming to get him, and although he had never heard voices he reported he would often misinterpret innocuous sounds. He noted that when intoxicated with stimulants he tended to stutter increasingly and also had a propensity to rearranging items.

He reported that his stimulant use had increased significantly following the shooting: prior to this he had tended to use cocaine and ecstasy more than amphetamines. He reported using up to 2g of cocaine when working as a bouncer, and at times this made him paranoid, and when working he would take two to three ecstasy pills, from which he denied adverse effects.

He denied having used hallucinogens such as LSD or magic mushrooms, although acknowledged having tried ketamine and gamma hydroxyl-butyrate, which he had not particularly enjoyed. He denied ever having used volatile solvents or opiates.

Mr Hudson told me that he had used anabolic steroids first in 1999 and had had five to six cycles for two to three months each. He stated that he had used a range of different anabolic steroids including Sustanon, Deca-Durabolin, Andriol, Primoteston and stanazolol. He told me that he had tried not to drink alcohol when he was taking steroids because he believed that the interaction was likely to affect his mood. He told me that his girlfriends had previously reported that he was more moody when on steroids and he had noted increased acne.

Mr Hudson described occasionally having taken prescription pills including benzodiazepines such as Valium or Xanax to help him when he had taken too many stimulants, but denied significant abuse of these substances."

Mr Hudson reported that at the time of the index offence he had been taking anabolic steroids for around a month, having been concerned that people had stated that he was looking "skinny" (weighing by his account 82kgs) and felt that he had possibly taken more than he would usually do so. In addition he reported that for the few weeks prior to the index offence he had been taking large amounts of stimulants, drinking copiously and that he was as a consequence much more paranoid than usual. He informed me that his paranoia was that he would be shot by people from other motorcycle gangs, or that he would be arrested by police and found to have a firearm. He told me that he had been in possession of a pistol despite being unlicensed, and he stated that this was in order to protect himself should he be assaulted. Mr Hudson stated that his concerns about his safety dated back to being shot in 2006, after which he had carried a weapon.

He told me that his memory of the alleged offence was markedly impaired and that he remembered arguing, assaulting his girlfriend and fleeing. He told me that subsequently he was very anxious that he would be shot by police and the night before giving himself up he slashed with wrist with ambivalent suicidal intent."

"There is no overt personality disorder present. Although anabolic steroid abuse and the lifestyle led by Mr Hudson suggests narcissistic and antisocial features, it is more likely that he was seduced by the lifestyle offered by joining motorcycle gangs, and that his peer group and lifestyle encouraged self-centred and aggressive attitudes. A previous history of violence in a similar context indicates a propensity to utilise violence both against women, and more indiscriminately when thwarted and particularly when intoxicated.

The circumstances of the current offences are significantly related to gross intoxication with amphetamines, stimulants and a background of anabolic steroid abuse. This, in combination with Mr Hudson carrying a firearm, has been integrally involved in the current offences. While intoxicated his judgment was impaired, although there is no indication of mental illness involved in these events."

48 Mr Cummins in his report dated 29 August 2008 said:

"Through his association with the nightclub industry, he was introduced to ecstasy, cocaine and amphetamines at around age 19/20. Shortly later he was introduced to crystal amphetamine. He said following the shooting incident of 2006 he became a very heavy and often daily user of amphetamines and crystal amphetamine. He said he would then sometimes also use Xanax as a "downer". He said for the six months prior to his offending of 18/6/2007 he would have been using amphetamines and crystal amphetamine at least every alternate day and frequently every day. He has never undergone any drug or alcohol detoxification and has never undergone any residential assistance for his alcohol and drug use."

"He states at the time of offending on 18/6/2007 he had in his possession a loaded firearm and he admitted at interview he was intermittently in the habit of carrying a firearm as a result of having been shot in the jaw at an affray at a kick-boxing event in 2006. He states although he has pleaded guilty to one count of murder there was no premeditation to his offending of 18/6/2007. In simple terms he states he committed these offences at a time when he was under the influence of amphetamines, crystal amphetamine and alcohol. In my opinion it is significant that users of crystal amphetamine frequently report significantly compromised perception and judgment and also frequently report drug induced paranoid ideation. He stated at interview he had no recollection of feeling paranoid towards Ms Douglas or anyone else involved in the incident of the 18th June 2007. Significantly, though, he emphasised his recollection of that incident and the associated events was very incomplete."

49 Dr Sullivan in his report outlined your history. You are now 30 years of age. You were born in Tweed Heads in New South Wales. Although your parents separated when you were 13 years old, you have kept in touch with each of them. In general, your family life was stable and uncomplicated. You attended Elanora Primary School and Palm Beach High School until Year 10. You had received some extra teaching at primary school but not at secondary school. You were just passing at the time you left. While at school you had got into some trouble for truancy. You apparently struggled with English at school and I suspect that is "code" for poor literacy skills. You have been attempting to improve your spelling and reading while in prison.

50 You completed a plastering apprenticeship after leaving school and worked in your father's business. You took the business over at some stage to allow him to partially retire. You also worked in crowd control at a dance club on the Gold Coast.

51 You had an interest in motor bikes. You joined the Finks motorcycle club in about 1998 and the Hells Angels in about 2004. You attribute being shot in 2006 to that change in allegiance.

52 You have not worked much over the last few years. You did some labouring work and would occasionally return to work for your father. Otherwise your father has been supporting you. After the shooting incident which occurred at a kick boxing tournament you have carried a gun regularly. That is the incident referred to by your psychiatrist and psychologist. You have not worked at all since that incident.

53 You have never been married and have no children. You had a long term relationship with a woman in Sydney. You had been involved in an intermittent relationship with Ms Douglas at the time of these events and another woman in Sydney. You have moved between Sydney and Melbourne and maintained an apartment here in Richmond.

54 You are of low normal or borderline intellect. You do not suffer from psychiatric impairment and have no psychiatric history.

55 I accept that you are remorseful for what you have done and that your plea of guilty being made at the Committal proceedings with no witnesses being called was an indication of that. You will have the credit for pleading guilty.

56 Your cooperation with the authorities is limited. I note that you have told your forensic advisors that you have little or no memory of these events.

57 You do have prospects of rehabilitation but they have to be seen in the context of a very long sentence which your conduct dictates that I must impose upon you.

58 I have no doubt that you understood very well the effects of the various drugs and alcohol on your behaviour. Even though it is quite likely that you may not have committed these offences in the absence of the drugs and alcohol you had consumed, that is not a matter in mitigation. You adopted a lifestyle which centred around venues such as those you were at on this night.

59 I note the following passage which appears in Mr Cummins' report:

"He said over the days preceding his offending on the morning of 18/6/2007 he had been using excessive quantities of amphetamines and crystal methylamphetamine and drinking excessive quantities of alcohol. He was unable to be specific about the quantities of drugs used. He did state, however, he had attended a function at Spearmint Rhino on the evening of 17/6/2007 as he then regarded himself as being a good acquaintance, if not, a friend of the manager of Spearmint Rhino. He said he had been introduced to the manager of Spearmint Rhino through his previous relationship with the woman named Shantelle. He explained because of his relationship with the manager at Spearmint Rhino it was unusual for him to have to pay for alcohol when at Spearmint Rhino or when at Barcode which was a bar also managed by Spearmint Rhino (Barcode was next door to Spearmint Rhino). He also explained as a result of his relationship with the manager of Spearmint Rhino he was invariably given VIP status when he attended Spearmint Rhino which meant he was able to interact with the exotic dancers in a more private area of the venue. He said he can recall on the evening of 16/6/2007 and on the early morning of 17/6/2007 he had consumed excessive quantities of beer and Bacardi rum 151."

60 The community in its attempt to come to grips with this offending may have to decide whether what happened on the morning of 18 June 2007 was a consequence of an accepted culture which allows venues to operate at almost all hours, at which it seems that overindulgence in alcohol is accepted if not encouraged and at which the use of illicit drugs is at the very least tolerated. You do not fall to be sentenced for that.

61 Your persistent life style might well act as an aggravating feature on sentence[1]. In this case however, it is more important to state that it does not operate as a matter in mitigation. It was not urged on me on the plea by your counsel that I should treat it as such.

62 I accept that there was nothing about your conduct which was premeditated but presumably you carried a handgun on the basis that you were prepared to use it.

63 Your offending is of course at the highest degree of seriousness. Many adjectives may be used to describe it but it speaks for itself. It is appalling. At peak hour on a Monday morning near the centre of the commercial district of Melbourne, you kicked Ms Daly-Holt several times to the head, causing her serious injuries. You walked around the corner with Ms Douglas, whom you forced to accompany you up the street. You took her into a basement area where you assaulted her further. When she managed to escape and tried to get into a taxi you grabbed her by the body and the hair. Mr Keilar and Mr De Waard came to her aid but they did not even so much as touch you. You took out your handgun and shot both of them. You also shot Ms Douglas. They all fell to the ground. You shot Mr Brendan Keilar twice more while he was on the ground. You executed him. You shot Mr Paul De Waard once more while he was on the ground. Your gun was then empty. You and others ought be grateful for that.

64 There were a large number of witnesses to the events, probably hundreds, to different aspects of it. They will carry the images of those events with them for a very long time.

65 Brendan Keilar was 43 years of age. He was a devoted family man, married with three children aged 3, 5 and 7. On this Monday morning, he was on his way to work as a partner in a firm of solicitors. He was highly respected. In her victim impact statement under the heading: Emotional trauma suffered as a result of the crime, his sister said:

"Extreme emotional trauma due to the circumstances surrounding and the actual death of my brother. The effect of Brendan's death on myself and my family has been devastating and ongoing. We have always been a very close family. It was such a tragic and sad loss which will effect many lives for many years to come".

We acknowledge that loss and we acknowledge that Brendan Keilar met his death as a direct result of trying to do what was right and decent without regard for his own safety.

66 Paul De Waard was a visitor to Melbourne on the morning of 18 June 2007. He comes from the Netherlands. He was described by many of the witnesses as a backpacker. I have already described his injuries. He returned home to the Netherlands on 21 July 2007. He was admitted to hospital on 31 July 2007 and transferred to rehabilitation on 16 August 2007 where he remained until 30 November 2007. After that date he had to return three days a week for rehabilitative therapy which continued until 26 March 2008. In his victim impact statement he says:

"After a long time staying in the hospital and rehab clinic I was sent home and hoped to get my normal life back. Things never got back the way it was, I had to live with a stoma for 5 months, I had to look for a new lighter job, I have problems with all the sports I used to do, for eg. surfing, swimming and snowboarding. It had been a big fight to get back on my feet again and I can't describe all the hard moments I've been through during the rehab process. I'm a very positive person and will always tell people I'm fine and doing well, however my life has changed forever and I'm still struggling with my health every day."

67 His conduct is marked by the same elements of decency and selflessness as that of Mr Keilar.

68 I have set out earlier the injuries for Ms Douglas and a passage from Ms Daly-Holt's victim impact statement.

69 The question now arises as to what sentence I should impose upon you. A number of cases were put to me on the plea and I have read them. I regard this offending as falling into the highest category. A number of different classes of murder do.

70 The Crown accepted on the plea that it would be appropriate for me to fix a non- parole period in this case, whatever view I took of the head sentence. The fact is that no person who has pleaded guilty in this state has not had a non-parole period fixed. I would not treat that proposition as necessarily of universal application, but it is my intention to fix a non-parole period here[2].

71 In relation to murder, the maximum sentence is life imprisonment, for attempted murder - 25 years imprisonment and for causing serious injury intentionally - 20 years imprisonment.

72 The two counts of attempted murder are very serious examples of that crime and Mr De Waard's injuries in particular might well have been fatal. I do not, however, deem it appropriate to impose different sentences on those counts. The attack on Ms Daly-Holt also represents a serious example of offending of its kind. Because of the principles of totality, I have imposed a somewhat lesser sentence for these offences than I otherwise would have imposed.

73 In imposing these sentences, just punishment and general and personal deterrence will loom very large. I have regard to all that was put on your behalf on the plea.

74 On Count 1- being an unlicensed person in possession of an unregistered firearm, I sentence you to be imprisoned for five years.

75 On Count 2 - causing serious injury intentionally to Ms Daly-Holt, I sentence you to be imprisoned for eight years.

76 On Count 3 - the murder of Brendan Keilar, I sentence you to life imprisonment.

77 On Counts 4 and 5 - the attempted murders of Mr De Waard and Ms Douglas I sentence you to be imprisoned for 12 years on each count.

78 After I impose a sentence of imprisonment on you for any of Counts 2, 3, 4 and 5, you fall to be sentenced as a serious violent offender pursuant to s 6A of the Sentencing Act 1991 ("the Act"). I do not find your conviction in August 2003 to be a serious violent offence. What follows is that, pursuant to s 6D(a) of the Act, in determining the length of sentence I must regard the protection of the community from you as the principal purpose of the sentence I am to impose.

79 Pursuant to s 6D(b), I would be entitled to impose a disproportionate sentence to achieve that purpose. I have a very wide sentencing range open to me in the present case and I am satisfied that the purposes of s 6D(a) can be achieved by the imposition of a proportionate sentence. The prosecution did not urge that I should do otherwise.

80 The sentence on Count 3 is the head sentence. That sentence renders the operation of s 6E of the Act nugatory. In relation to Counts 2, 4 and 5, I order that it be entered in the records of the Court that you were sentenced on those counts as a serious violent offender.

81 In relation to s 6AAA of the Act, I indicate that, had it not been for your plea of guilty, which was made at an early stage and which meant that none of your surviving victims or other witnesses were required to give evidence, I would not have fixed a non-parole period.

82 As I have already indicated, I intend to impose a non-parole period. In imposing a non-parole period, I have had regard to the totality of your offending. The non-parole period must itself satisfy the general needs of sentencing and, in particular, the aspects to which I have referred above[3]. I fix a period of 35 years before you become eligible for parole.

83 I declare that 460 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details.

[2] DPP v Manuel Adajian [1999] VSCA 105 (unreported).

At a glance

Court

Decision date

Before

Source

Judgment (107 paragraphs)

Parties

Cases Cited (1)