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[2009] VSC 90
procedural. Each accused sentenced to 10 years imprisonment with a minimum non-parole period of 7 years; pre-sentence detention declared as 632 days for both; disposal and retention orders signed (paras 35-36).
Two men, Simon Kell and Robin Dey, armed themselves, assaulted an unarmed man, Tyrone Shepherd, who later died from stab and blunt-force injuries. A jury convicted both of manslaughter but could not determine who delivered the fatal stab wounds. At sentence Lasry J treated them as jointly culpable, rejected offers to plead as showing genuine remorse, took the seriousness of the injuries and attempts to conceal the offence as aggravating, and imposed identical sentences of 10 years imprisonment with a 7-year non-parole period, allowing credit for 632 days in custody.
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On 26 June 2007 Tyrone Shepherd attended the home of his former partner, Sarah Kell. Earlier the same day Robin Dey had shown Sarah a knife which she declined to take (para 6). Later that night, after Sarah telephoned Simon Kell and indicated Shepherd was at her house, Simon and Robin travelled to the address. Both men were armed, one with a baseball bat and the other with a knife, and both had been using alcohol and illicit drugs earlier that evening (paras 7-8). They climbed over a closed driveway gate, confronted Shepherd, and a violent struggle ensued. Simon Kell struck Shepherd with a baseball bat without an antecedent physical act by Shepherd, and during the struggle Shepherd sustained numerous incised wounds and blunt force injuries, including two injuries the pathologist regarded as fatal: a stab to the back penetrating the right lung and a severe incised wound to the left calf (paras 8-9).
No linked legislation citations have been extracted yet.
After Shepherd was incapacitated and dying, both accused left the scene, took steps to conceal the weapons, showered and changed clothes, and instructed others to give false alibis (para 10). Sarah called emergency services after they left; Shepherd subsequently died from his injuries (para 10). At trial both Kell and Dey were acquitted of murder and defensive homicide, but convicted by a jury of manslaughter (para 1). At sentencing Lasry J treated them as acting in concert and, finding their culpability indistinguishable, imposed identical sentences: 10 years imprisonment with a non-parole period of 7 years, with credit for 632 days' pre-sentence detention (paras 12, 34-35).
There are several central factual and legal strands that informed Lasry J’s sentencing decision.
Acting in concert and parity of culpability. The judge accepted that both men armed themselves and went to the address with an intention and expectation that physical violence would be inflicted on Shepherd (para 8). Because the jury could not determine which of them inflicted the fatal stab wounds, and both participated in the violent confrontation and the post-offence concealment, their culpability was indistinguishable. Sentencing must be consistent with the verdict of the jury; where co-offenders act in concert and blame-shifting leaves their individual roles unresolved, parity of sentence is appropriate (paras 12, 34).
Seriousness of the offending. The attack was violent and sustained, with multiple incised wounds and blunt force injuries. The judge regarded the fatal wounds and the multiplicity and quality of injuries as relevant to the sentence, even though the jury acquitted of murder (para 13). The court described the conduct as "vicious" and "repelling" and deserving of severe condemnation (para 34).
Limited mitigation from pleas/offers. Each accused had made offers to plead to manslaughter or defensive homicide at various stages (para 22). Lasry J concluded those offers were pragmatic attempts to avoid a very real risk of murder convictions arising from the ferocity of the attack, and therefore not indicative of genuine remorse or acceptance of responsibility that would justify a significant discount (paras 22-23).
Lack of timely remorse and attempts to conceal. Both left the scene as Shepherd lay dying and then took active steps to hide evidence and instruct others to give false accounts (paras 10, 18). The judge drew out the absence of immediate remorse and the active concealment as aggravating factors diminishing any mitigation from subsequent expressions of regret (paras 18-19).
Mitigation from character and prospects of rehabilitation. Both men had no prior convictions and produced character references and psychological reports indicating some vulnerabilities and prospects for rehabilitation (paras 24-32). The judge accepted that both had made positive use of custody and had likely good prospects for rehabilitation, but these mitigatory features did not override the offence's gravity and the need for deterrence (paras 29-33).
Weighing these factors, Lasry J imposed substantial custodial sentences with a significant non-parole period to reflect the seriousness, to denounce the conduct, and to provide general deterrence (paras 33-35).
This judgment applies well-established sentencing principles rather than announcing novel legal rules. The relevant legal positions Lasry J applied were:
Sentencing must respect the jury's findings and be consistent with the verdict (para 12). Where the jury is unable to apportion the fatal act between co-offenders, the sentencing judge may treat them similarly if their roles and culpability are essentially the same (paras 12, 34).
Offers to plead guilty can attract mitigation, but where they are tactical attempts to avoid a higher conviction the judge should scrutinise them and may decline to accord significant credit (paras 22-23).
The severity and multiplicity of injuries are relevant aggravating features to be considered within the totality of circumstances at sentence, even where the jury has acquitted of the greater offence (para 13).
Lasry J referenced R v AB (No. 2) [2008] VSCA 39 concerning the significance of maximum penalties (para 2, footnote). He did not purport to change sentencing doctrine; he applied these principles to the facts and reached a sentence at the upper end of typical manslaughter outcomes consistent with those established sentencing principles. The decision therefore reinforces settled approaches rather than altering the law.
"The sentence I impose on you must be consistent with the verdict of the jury..." (para 12).
"I am also satisfied that you both went to the premises with the intention and expectation that physical violence would be inflicted on Mr Shepherd." (para 8).
"The knife wounds which caused Mr Shepherd's death were clearly inflicted by one of you, but you each deny doing so and claim the other did the stabbing..." (para 11).
"I do not regard the offers made in this case as generous ... neither offer could be taken to reflect remorse." (para 23).
"The viciousness of the attack ... and your joint willingness to leave him to die ... is repelling conduct and deserves severe condemnation." (para 34).
This judgment is instructive where the following factual pattern occurs:
In those circumstances the sentencing judge can treat the accused as acting in concert, consider the number and quality of injuries as aggravating, and may impose similar sentences on each offender where culpability is indistinguishable (paras 12, 13, 34).
This judgment itself does not report any subsequent appellate treatment. The judgment cites R v AB (No. 2) for guidance on maximum penalties (para 2). Absent later reported decisions recorded in this judgment, it is not possible from the text to say how appellate courts have subsequently treated R v Kell & Dey. Practitioners should check later Victorian Court of Appeal and High Court decisions and sentencing databases for any appellate consideration if precedent value is needed.
Several issues remain for further development or that practitioners should monitor:
Quantifying credit for offers to plead where the offer is made in a context of mutual blame. Lasry J treated the offers as not generous and not reflective of remorse (paras 22-23). A future appellate decision could give more precise guidance on when offers to plead in such contexts attract mitigation.
How to allocate moral and legal blame among co-offenders where one likely inflicted the fatal wound but participants shared planning and violent intent. Lasry J imposed parity where culpability was indistinguishable; appellate consideration could develop finer-grained rules for distinguishing roles and appropriate differential sentencing.
The weight to be accorded to the multiplicity and quality of wounds where an acquittal of murder has been entered. Lasry J treated wounds as relevant aggravation (para 13), but future decisions could further delineate how such evidence should be balanced with the jury's verdict.
The interaction between mental health, substance abuse, and culpability in joint violent offending. The judge recorded Dey's bipolar disorder and history of drug-induced psychosis but did not find a condition explaining the offending (paras 25-28). Appellate guidance might clarify how such features should quantitatively affect sentence where culpability is high.
The proper role of general deterrence in setting non-parole periods in joint violent offending cases, particularly where rehabilitation prospects are otherwise good. Lasry J emphasised deterrence (para 33) but balanced it against rehabilitation prospects (paras 29-32); appellate authority may further articulate how to calibrate that balance.
Practitioners sentencing or defending in similar fact patterns should focus on establishing whether individual participation can be separated, provide contemporaneous expressions of remorse, and address concealment behaviour directly, because these factors were pivotal in Lasry J's reasoning (paras 18, 22-23, 34).
CRIMINAL LAW - Sentence - Manslaughter - Remorse - Jury unable to determine which offender caused the death - Each blames the other - Acting in concert - Sentence consistent with jury verdict - Offer to plead guilty to manslaughter and/or defensive homicide - Whether indicative of remorse or acceptance of responsibility - Prospects of rehabilitation.
**1 Simon Kell and Robin Dey, you have both been found guilty by a jury of the manslaughter of Tyrone Shepherd at premises occupied by Sarah Kell, the sister of you, Simon Kell, on 26 June 2007. You were both originally charged with the murder of Mr Shepherd and, having pleaded not guilty to that charge, your trial was held before me over 14 days in December 2008. On 18 December 2008 the jury found you both not guilty of murder, not guilty of defensive homicide, but guilty of manslaughter.
2 The maximum penalty for the offence of manslaughter is 20 years' imprisonment and I am aware of the significance of that maximum.[1]**
**3 In summary, the circumstances under which you both committed this offence was as follows. You were known to each other and were friends as a consequence of both having attended the same secondary school.
4 Sarah Kell had maintained a relationship with Tyrone Shepherd over a period of approximately 18 months commencing on or about Christmas 2005. On any view the relationship was problematic and in her evidence Ms Kell described various incidents during that time which involved violence between her and Mr Shepherd which she said he initiated. As a result, from to time the relationship broke down. As at 26 June 2007, the relationship had again broken down and Ms Kell and Mr Shepherd had not been in regular contact for a period of three weeks.
5 During that time of separation between Ms Kell and Mr Shepherd, a sexual relationship had developed between Ms Kell and you, Robin Dey.
6 On the morning of 26 June 2007, at about 5:00 am, Mr Shepherd visited Ms Kell at her home at 213 Huntingdale Road, Ashwood. Shortly after that he was directed by her to leave, which he did. She gave evidence that 15 minutes later she rang you, Robin Dey, and told you that Mr Shepherd had been at her home and that she felt rattled. Some time later you went to Ms Kell's premises and in the course of discussion produced a knife which you suggested she display to Mr Shepherd were he to return. Ms Kell declined to accept the knife and you left. Ms Kell also gave evidence that she told you, Simon Kell, about Mr Shepherd's visit and Robin Dey producing the knife but could not recall what you said in response. She said she told you to tell Robin Dey that there should be no knife.
7 During that day, Ms Kell underwent treatment at the Monash Medical Centre and then returned home that evening. At about 11:00 pm she was speaking to you, Simon Kell, on the telephone when Mr Shepherd again appeared at her window at the Huntingdale Road premises. Mr Shepherd was unarmed. She told you, Simon Kell, that Mr Shepherd was there and you said, "right, we're coming over". At that stage both of you were at the Dey family premises at Beech Street, Camberwell, and according to the evidence before the jury you were consuming alcohol, amphetamines and marijuana.
8 After the phone conversation between you, Simon Kell, and your sister, the two of you then agreed to go to Ms Kell's premises and confront Mr Shepherd. You took with you a baseball bat and a knife. I am willing to accept that you went to Ms Kell's premises under the belief that there may have been some risk to her, although she did not identify a risk or threat. I am also satisfied that you both went to the premises with the intention and expectation that physical violence would be inflicted on Mr Shepherd.
9 In the meantime, Ms Kell and Mr Shepherd continued their emotional discussion about their relationship. Mr Shepherd indicated to Ms Kell that he had no intention of withdrawing and removed his jacket to emphasise his intention. Whilst that may have shown some intention to engage in a confrontation, he was soon to discover that he was outnumbered and confronted with weapons. While that discussion between Mr Shepherd and Ms Kell was still going, both of you arrived at Ms Kell's premises. Having parked the car away from the house, you climbed over the gate in the driveway which was closed. At that stage you, Simon Kell, had the baseball bat and you approached Mr Shepherd and accused him of having physically harmed your sister. Mr Shepherd at one stage said "you are a good brother for sticking up for your sister". Mr Shepherd had done no more than that and stand his ground. Without any physical act by Mr Shepherd, you Simon Kell then struck him with the baseball bat you were holding and a struggle ensued. During the course of that struggle a large number of incised wounds and blunt force trauma injuries were inflicted on the deceased man. When the struggle, which involved both of you, concluded Mr Shepherd lay in the driveway asking for help. By that stage he had received at least two wounds which, in the opinion of the pathologist, had caused his death. There were many other signs of injury and incised wounds, but according to the pathologist, Dr White, the fatal wounds were a stab wound to the back which penetrated the right lung and a very severe incised wound to the left calf. They were such as to be life threatening purely as a result of the blood loss that would have resulted.
10 Once Mr Shepherd was totally disabled and severely wounded, you, Robin Dey, asked Ms Kell to leave with you but she declined to do so. You both then left the premises while Mr Shepherd was lying in the driveway either dead or near death. Ms Kell then rang "000" and during the trial the jury heard the harrowing phone call. On your way back to the Dey family premises you were both involved in secreting the knife and the baseball bat. When you returned to the house you both first went to the bath room and showered and changed your clothes. Then, when you returned to your bedroom, Robin Dey, you both told the others present (being Stefanie Taylor and Arnab Roy) that it was in their best interests not to know where you had been that night. Ms Taylor gave evidence before the jury that both of you said to her and to Mr Roy that you had been there all night - in other words if they were asked about your whereabouts that is what they were to say.
11 The knife wounds which caused Mr Shepherd's death were clearly inflicted by one of you, but you each deny doing so and claim the other did the stabbing or must have done so. The account of events from you, Simon Kell, is contained in your record of interview. That interview began with an attempt by you to lie about your involvement in the death of Mr Shepherd, although you later admitted you were present at your sister's house when Mr Shepherd was killed and you blamed Robin Dey for that death. You did not give evidence on your trial but relied on your record of interview. You, Robin Dey, did not make a record of interview but you did give sworn evidence on your trial and blamed your co-accused Simon Kell for the death of Mr Shepherd, though admitting your presence and participation.
12 The sentence I impose on you must be consistent with the verdict of the jury and so the question arises as to what can be made of that verdict for the purpose of imposing sentence. On this issue counsel for both of you and the Senior Crown prosecutor seemed to be agreed. As they suggest, you were acting in concert with each other in that there was some kind of arrangement which involved arming yourselves with the baseball bat and the knife with an appreciation on both your parts of the prospect of confrontation with Mr Shepherd which was both unlawful and dangerous and which confrontation led to his death. It does appear to me that the jury were not able to resolve the dispute between the two of you as to which of you had the knife. I would agree that had they been able to do so, the person they found had used the knife was highly likely to have been convicted of murder, subject to issues of self-defence - those issues would have been unlikely to have prevented such a result.
13 Mr Stuart of counsel, who appeared on behalf of you, Robin Dey, has highlighted a risk in paying too much attention to the number of wounds inflicted on the deceased because if I were to do that I might be depriving you of the benefit of being acquitted of murder. However, the number and quality of the wounds are, in my view, relevant in reaching a conclusion about the appropriate sentence for this offence. As I put to counsel during the submissions on your behalf, the wounds suffered by Mr Shepherd are part of the totality of the circumstances that I am entitled and required to consider in fixing an appropriate sentence.
14 The Senior Crown prosecutor submitted that this case should be regarded as being at the upper end of the scale for manslaughter. There is no question that this is a very serious offence. The evidence indicates that after the consumption of alcohol and drugs you both armed yourselves with weapons and went to Ms Kell's house intent on inflicting physical violence on Mr Shepherd. Although standing his ground he was unarmed and offered no violence to either of you. There is a degree of callousness in this event and the harm inflicted on Mr Shepherd for which neither of you are willing to take direct responsibility. On any view Mr Shepherd's death was an unnecessary tragedy.**
**15 A number of victim impact statements were read to the Court by the Senior Crown prosecutor. Some further victim impact statements were filed after the plea hearing had been completed.
16 As is so often the case these statements are harrowing. The loss obviously felt by Mr and Mrs Shepherd and Mrs Fitzgerald at the killing of their son and grandson has quite clearly devastated them. The consequences for them of his death and the knowledge of the circumstances in which it occurred will obviously traumatise them for many years to come, if not indefinitely. Whatever can be made by me of the number and magnitude of the injuries inflicted on their son, it is having an indelible effect on his parents and the rest of his family. I agree that until one has gone through such a trauma it is very difficult to comprehend the effect on this family. In addition, statements have been filed on behalf of Mr Shepherd's sister, a close friend Ms Georgina Hannah, and Ms Thompson, a long time friend of Tyrone Shepherd and his family. Sarah Kell has also filed a statement which reveals that she apparently now suffers from post traumatic stress disorder, which is hardly surprising in the circumstances. Having witnessed this crime and been part of Simon Kell's family as well will obviously have long lasting consequences.
17 I have taken these statements into account in determining the sentence I should impose on you both.**
**18 It is difficult to find any timely evidence of regret or remorse in relation to this terrible incident. You both left the scene at a time when Mr Shepherd was in need of assistance. You both later attempted to conceal the offence by hiding the weapons and instructing others to give false alibis. You each still effectively blame the other.
19 During the course of the submissions being made on behalf of you, Simon Kell, I observed to your counsel that there did not seem to be any significant evidentiary material that indicated remorse on your part. Following that observation being made, you gave evidence and during the course of it expressed remorse and regret for what had occurred. It is regrettable that such expressions of remorse were required to be prompted from you but nonetheless, you have made what appear to be genuine expressions of contrition.
20 Your mother also gave evidence on your behalf on the plea before me and whilst she referred to your background and some of the skills you possess she did not describe you as someone who was regretful about what had happened until I enquired of her. She then said that you had expressed regret for what happened but did not elaborate at all.
21 You, Robin Dey, appear to be in a slightly different category. The written character references with which I have been provided and the sworn evidence called on your behalf indicate that you have previously expressed your regret for what occurred although it is again qualified by the fact that the identity of the person who used the knife remains a mystery. I am also willing to accept that you are not by nature a violent person and your usual good and non-violent character is attested to in detail by those who have presented information on your behalf. However, on the morning of the incident you presented a knife to Ms Kell as being a means of deterring Mr Shepherd from attending her premises. That is at odds with the character otherwise described on your behalf.**
Offers to Plead Guilty to Manslaughter and/or Defensive Homicide
**22 I have been provided a letter faxed to the Office of Public Prosecutions on 28 October 2008 by Clarebrough Pica, solicitors on your behalf, Simon Kell, which indicates your willingness to plead guilty to manslaughter and to give evidence as a Crown witness. Your counsel suggested that it offered a willingness to accept responsibility for what had occurred. Likewise, Mr Stuart of counsel on behalf of you, Robin Dey, indicated that after the committal proceedings and again before this trial started, offers to plead guilty to defensive homicide or manslaughter were made on your behalf and, obviously, rejected. Since each of you was asserting that the other person did the act which caused the death of Mr Shepherd, the Crown had no other option but to run the trial. The Crown submits that there should not be a significant discount by reason of the offers to plead guilty.
23 I do not regard the offers made in this case as generous. Whichever of you used the knife to inflict the fatal wounds on Mr Shepherd, that person has declined to accept responsibility for those acts. Such offers as were made were clearly made to avoid a very significant risk that convictions for murder were more than likely given the ferocity of the attack on Mr Shepherd. In my opinion neither offer could be taken to reflect remorse.**
**24 Simon Kell, you are currently 27 years of age. Your parents are separated although their relationship with each other is apparently good. Your only sibling is your sister, Sarah. You had typical education though leaving secondary school at Year 10. With a view to concentrating on computer technology you went to Swinburne Technical College and then eventually worked for Telstra. You later moved to the ANZ Bank and were employed by them at the time of your arrest.
25 Robin Dey, you are currently 25 years of age and prior to being imprisoned after your arrest you resided with your family. Although not without incident in relation to your step-siblings, your family background seems generally positive and your family has supported you in some number during the course of these proceedings. Your secondary education was at Carey Grammar School between Years 7 and 9. You were asked to leave and then went to Wesley College and then to RMIT. You began working as a security guard and began using drugs that are euphemistically described as "recreational". The drugs included amphetamine, ecstasy, LSD and others. You also used cannabis regularly. A drug induced psychosis resulted in six weeks in hospital in 2005 and during that year you were also diagnosed with bipolar disorder.**
**26 Neither of you have previous convictions and prior to this offending are entitled to be described as men of good character. I have received a number of written character references concerning you, Simon Kell. From those documents it is clear that your employment with the ANZ Bank was successful. Your friends describe you as generous, kind and conscientious. Violence is not part of your observed history. The psychological evidence from Mr Cummins describes a history of you having suffered an anxiety disorder for which you were prescribed medication and, clearly, imprisonment has exacerbated your psychological condition. There is, however, no psychological or psychiatric condition that would explain your conduct on the night of the killing of Mr Shepherd. Dr Drummond, a psychologist and family friend, gave evidence of your positive disposition and of your application to work. He saw no sign of violence in your character, although he knew little, if anything, of your drug taking.
27 As I have already mentioned I have also received a number of written character references concerning you, Robin Dey, and they also portray a picture which is completely at odds with what occurred on 26 June 2007. You have had the support of the broader Indian community as well as your family throughout this case. A large number of your family and friends have attended the court proceedings to support you. That material adds to the prospect that your outlook for rehabilitation is good. Three witnesses were called on your behalf during the plea hearing: Suchitra Ghosh, your elder step-sister; Dr Ranjit Singh Dhillon, your close friend; and Ipsita Wright, a family friend. Those witnesses attested to your character and to the conclusion that the events leading to the death of Mr Shepherd are at odds with your usual character and demeanour. However, the deliberateness of your involvement in this incident and its aftermath are a matter of some concern, as they are for Simon Kell.
28 The psychological evaluation from Dr Kennedy concerning you reveals a pre-existing condition of bipolar disorder and epilepsy which resulted in hospital admission in 2005. You are described as having been well treated for that condition and you are a man with sound intellectual functioning. Your treatment for your bipolar disorder has been satisfactory although you have engaged in substance abuse and Dr Kennedy notes that that has compromised your treatment. He considers that your substance abuse and aggression will require some assistance.**
**29 You have each been in custody since late June 2007 - a period of approximately 20 months. You have been at the Metropolitan Remand Centre. It is important to note that you are both young men and therefore your rehabilitation is significantly relevant. I gather your personal relationship with each other is destroyed by these events.
30 I am told that you, Simon Kell, have completed a number of courses, and certificates in relation to those courses were provided during the plea on your behalf. The documents show that you have completed courses in communication skills, mood management, and conflict management. You have also completed a smoking management program, and your negative assay results of 9 October 2008 indicate that your drug use has ceased during your period in custody. You apparently hold a trusted position in the staff canteen and, at the Metropolitan Remand Centre, occupy your own room in a self-contained cottage which you claim is a measure of the trust that the prison has placed in you. You have plans for your release including to study electrical engineering and work in the mining industry in Western Australia.
31 Robin Dey, your negative assay results also indicate that your drug use has ceased during your period in custody. In addition, whilst in custody you have been involved in meditation and worship under the supervision of the Buddhist Chaplain at the Metropolitan Remand Centre. You have done courses under the supervision of the Kangan Batman TAFE as well as skills programmes in various aspects of your life.
32 Neither of you have any prior convictions and as I have earlier noted I would have to assess your attitudes and approach to being in custody as positive and both your prospects of rehabilitation as good. You both have family and peer group support to draw on.**
33 General deterrence is, of course, a factor which principle requires be given significance in the sentence I impose. Regrettably violence as a solution to personal and social issues grows by the year and at great cost to the cohesion of the community. People must be deterred from resorting to violence in circumstances such as these. My assessment is that you both now well understand the consequences of the conduct you have engaged in. You have both demonstrated that your rehabilitation can progress in custody and I have already observed that I regard your prospects in each case as good and that on your release the community is probably unlikely to be again threatened by your conduct.
**34 Based on the manner in which the trial was conducted and the outcome through the jury's verdict, I am unable to see a basis for any distinction between you as to the sentence that should be imposed. Further, your personal history and attitudes to the commission of this very serious offence are difficult to distinguish. The viciousness of the attack on Mr Shepherd and your joint willingness to leave him to die in Ms Kell's driveway is repelling conduct and deserves severe condemnation.
35 Simon Kell, for the manslaughter of Tyrone Shepherd you are sentenced to be imprisoned for a period of 10 years. I fix a minimum period of 7 years before you are eligible for parole. Robin Dey, for the manslaughter of Tyrone Shepherd you are also sentenced to be imprisoned for a period of 10 years. I likewise fix a minimum period of 7 years before you are eligible for parole. I declare that the period of pre-sentence detention in relation to both of you is 632 days, including today.
36 I have signed the disposal and retention orders sought by the Crown which neither of you oppose.**
[1] See generally R v AB (No. 2) [2008] VSCA 39; (2008) 18 VR 391.
R
Kell & Dey [2009] VSC 90
(2008) 18 VR 391
Each accused sentenced to 10 years imprisonment with a minimum non-parole period of 7 years; pre-sentence detention declared as 632 days for both; disposal and retention orders signed (paras 35-36).