R v Kellisar [2001] VSCA 224

Court of Appeal (Vic)|2001-12-04|Before: WINNEKE, P., BROOKING and BUCHANAN, JJ.A.

Criminal law - Sentence - Premeditated and carefully planned murder of wife - Premeditated destruction of body in acid bath - Heartless lies and pretences - Entire absence of remorse - Sufficient weight given to applicant's cultural isolation in prison - Disposal of body aggravating factor - 22 years with non-parole period of 18 upheld - Applicant lucky to escape life sentence.

I will invite Brooking, J.A. to give the first judgment in this application.

Tony Kellisar murdered his wife on 16 November 1997. He disposed of the body in an acid bath, using a big plastic rubbish bin as the container. Convicted after a trial that went for 22 sitting days, he was on 2 September 1999 sentenced to imprisonment for 22 years, with a non-parole period of 18. He sought leave to appeal against his conviction, but abandoned that application last month. And so it is not until today that his application for leave to appeal against sentence comes before us. Up to a fortnight ago, the only ground was manifest excess. But, by amendment, that ground has been relegated to third position, preceded by one ground asserting that the judge did not give enough weight to the applicant's isolation in prison from family, culture and society, and another ground alleging that the judge gave too much weight to the use of the acid bath.

The reference to isolation from his family is, of course, not a reference to the wife he killed or his stepchildren, who have lost their mother. It means his parents in Iran, a country he left some time in the 1980s, going to India. He arrived in Australia in 1990. On the plea, his only friends in Australia were said to be in New South Wales, so that he was alone in this State. That is the consequence, so far as his New South Wales friends are concerned, of his killing his wife in Victoria in the hope that his murderous visit here would never become known.

That flying visit, and the planning of it and of the murder, and his premeditated destruction of the body, and the steps taken by him to escape detection, both before and after the killing, including his heartless lies and pretences, and his entire absence of remorse and constant denigration of his victim, all mark this case off very much from many killings of wives, husbands and companions and

make it a bad, indeed I would say very bad, case. Having said that I had better take the precaution of adding that of course one can think of, and even find in the reported and unreported cases, examples of murder which are as bad, and examples of murder which are even worse. But the summary of evidence before us and the judge's careful and detailed findings show that this crime, viewed in the context of the personal circumstances of the criminal, called for a very stern sentence.

We have a 19-page summary of the evidence and his Honour's own summary and findings, in the course of which he took a very unfavourable view of the applicant's truthfulness. Against this available background my own resumé will be very brief.

The applicant, aged 35 when he killed his wife, had settled in New South Wales. He was a Muslim and, as mentioned, had been born in Iran. Once in Australia he settled in New South Wales. He gradually integrated into the community, becoming involved in local activities and frequenting night clubs. He met his wife, a divorcee with two children, at a Sydney night club. After living together for two years they married in 1996. Their relationship was a stormy one, marked by numerous separations. They argued about money and other things. There was evidence that the applicant was concerned about the division of assets on a possible divorce (he had a good employment record and had made investments), and the judge suspected, but was not prepared to find, that a possible loss of property on a divorce was the motive for the killing.

The wife was a travel agent. She went to Melbourne on Thursday 13 November 1997 for a travel agents' conference held at Crown Towers in the Crown Casino complex. She was due to check out of the hotel on Sunday 16 November. Before she left Sydney her husband told her he hoped to join her in Melbourne. He did this so that she would not share a room at the hotel. He later told her by telephone, once she was in Melbourne, that the air fare was too expensive for him to come. But late on the afternoon of Saturday 15 November he hired a "Budget" car, telling the "Budget" staff he needed it to drive to Newcastle. Instead he drove, at very great speed, to Melbourne, intending to kill his wife and return and dispose of her body in the acid which awaited it, without anyone ever knowing that he had, for that short time, left New South Wales. He arrived at Crown Casino in the small hours and, instead of going to the hotel, twice telephoned his wife from a public telephone and persuaded her to leave her room and join him in his car. She was filmed by a surveillance camera leaving the hotel lobby to go to him and he had the misfortune to be filmed by other surveillance cameras several times shortly before she was. He killed her in the car: how we will never know. He drove to Sydney and went to the workshop of Metropolitan Radiator Repairs, his employer. He put his wife's body in a big, wheeled plastic rubbish bin and filled it with the hydrochloric acid he had ordered about a week before. By the time the police examined the contents of that bin, nearly a week later, on Saturday 22 November, the only human remains that could be identified were legs, part of a lower left arm and hand and some organs. One does not need the victim impact statements, although I am sure we have all read them, to appreciate the shock and abiding grief and horror that what was done with the body would cause the family.

The judge found - and the finding was very well open to him - that the horrible end to this premeditated and dreadful crime was always intended to be the destruction of the body by acid.

Lies told by the applicant on numerous occasions and his attempts to prevent detection are dealt with in the summary of evidence and the judge's reasons and need not be recounted. Naturally he began by pretending he knew nothing of his wife's disappearance. Later he claimed that in the car, close to the casino, she had made an unprovoked and violent physical and verbal attack on him, to which he had responded angrily but without any murderous intent. He pleaded guilty to manslaughter, but it was unthinkable that this plea should be accepted. His defence at the trial was lack of murderous intent and in addition provocation. The judge found that there was no remorse. He referred to the treatment of the body both as confirming the view that there was no remorse and as aggravating the crime. The decision of this Court in Director of Public Prosecutions v. England[1] had been discussed on the plea.

I have said something about the personal circumstances of the applicant without mentioning everything that appears from the plea and the judge's reasons.

The first ground of appeal refers to hardship while imprisoned in isolation from family, culture and society. I have already said in passing a few things that bear on this. The applicant completed secondary school in Iran and would have gone to university had it not been for the war with Iraq. The papers show him to have a good command of the English language. He is enterprising. I have mentioned his integration. He stands in a very different position from some foreign visitors who come before the courts. The judge said in passing sentence that there was a distinct possibility that the applicant would not see his family in Iran again and that he was conscious of the likely impact upon him of incarceration in the sense of cultural and social isolation. These matters, he continued, he took into account. This Court has said that the weight that can be given to matters of this kind in the case of very serious crimes is limited. The ground alleges that insufficient weight was given to the matters mentioned in it. This is by its nature a difficult ground to establish. I certainly see nothing in the sentence itself to suggest that insufficient weight was given, and I would not uphold this ground.

The second ground alleges that undue weight was given in aggravation of sentence to the way in which the applicant disposed of the body. The judge said he regarded this as an aggravating factor. He was plainly right to do so. I see nothing about the sentence to suggest that undue weight was given to that matter. I reject the contention that, because the disposal of the body was one of the many matters relied on to establish premeditation, the judge was precluded from using the way in which the body was disposed of as relevant for other purposes in sentencing.13 As regards manifest excess, when one has regard to all the personal circumstances of the offender - and I have mentioned only some of them - and to the circumstances of the offence, I have not the slightest doubt that this sentence is not manifestly excessive. Below, the Crown said that it did not suggest that a life sentence was appropriate. I must say I find this most surprising. In my view this case called for a life sentence, and I can best express my view on the question of manifest excess by saying that, if I had been sentencing the applicant, I would have entertained no doubt that life imprisonment was the appropriate sentence, tempered by a non-parole period of many years.

Clearly, this application must fail. The applicant should count himself lucky not to be serving a life sentence.

Having regard to the nature of this crime, which the learned judge correctly, in my view, described as "a particularly serious example of a very grave crime", I share the view of Brooking, J.A. that the applicant was very lucky not to have received a sentence much higher than the one he received.

The formal order of the Court is that the application for leave to appeal against sentence is dismissed.

APPLICANT: Something's gone terribly wrong. I didn't kill my wife. I'm going to hell and you three judges are going to hell too.

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