R v Kells [2012] VSC 53

3 On the night of 25 January 2010, neighbours in and around Raymond Street, Tootgarook, reported hearing loud and violent arguments between you and Mr Pye. Numerous calls were made to '000' during the night either by neighbours, Mr Pye or yourself. Several police units attended the house and the nearby vicinity on a number of occasions during the night in relation to your dispute. The dispute centred upon your allegation that Mr Pye had stolen $1,000 and some mobile phones from you.

4 During the course of your argument with Mr Pye, you threw one or more objects through a large front window of the house, smashing it. Your demeanour was described by police who attended the scene to try and assist you as, variously, aggressive, uncooperative, not interested in what they had to say, just wanting to get your money back, erratic, upset and distraught.

5 You left the house at 52 Raymond Street in the early hours of the following morning, to stay at a friend's house in Rye. Yet you did not stay there long, returning to Raymond Street between 6:00 am and 7:00 am. Mr Pye was not there when you arrived back, although he must have returned shortly afterwards. You then resumed your argument with him about the money and the phones. You called '000' at about 7:07 am, from outside the house. You were in an angry state, complaining that Mr Pye would not give "your stuff back", that he had been smashing windows and further claiming that he had choked you and smashed you up against a wall. That call ended at about 7:09am.

6 You evidently re-entered the house. On your account, you had a scuffle with Mr Pye; he then entered a bedroom; you armed yourself with a knife from the kitchen, approached the bedroom door and pushed it open to find him coming at you. He was, in fact, unarmed. In that doorway, you stabbed him with the knife, one blow to the chest, penetrating to his heart. By 7:11 am, you were on the phone to '000' screaming that you had stabbed your partner in the chest. He died at the scene.

7 You claimed you acted in self-defence. In finding you guilty of manslaughter the jury found that you caused Mr Pye's death by a deliberate, dangerous and unlawful act, not intending to kill him or cause him really serious injury, but neither believing on any reasonable grounds that stabbing him, as you did, was necessary to defend yourself.

8 Mr Pye died of the single stab wound that penetrated his heart. The Crown's case had been, however, that you had inflicted many more superficial injuries to Mr Pye - around 30 in total - in the course of a violent assault that preceded his death. Your defence had been that you did not inflict those injuries. Rather, your case was that there was a very short struggle inside the house during which Mr Pye pushed you around and that the injuries to his face, arms, hands and legs must have occurred earlier in the night when he was involved in other activity.

9 It is apparent that the struggle immediately preceding the stabbing took place in a very short space of time. It is clear, in my view, that the jury's verdict reflects that it was not satisfied you had inflicted the 30 or so injuries. I therefore sentence you on the basis that you did not inflict those other injuries and that the immediate lead up to the fatal event was a brief struggle.

10 The starting point in considering the nature and gravity of your offence is that you have taken a human life.

11 The evidence before the jury showed that the incident occurred after a long night of frustration and angry conflict, and was probably attended, in your case, by intense emotional feeling, sleep deprivation and, possibly, a weakened physical state. Nevertheless the evidence also demonstrated that there were options available to you to escape the confrontation, options you did not pursue.

12 Evidence was also led by the Crown of several incidents involving a former partner, Mr Meyer, a partner of some five years with whom you had two children. On one occasion you resorted to a corkscrew to stab him, and on two other occasions to a broken bottle and then a knife with which to threaten him. That evidence was led to rebut your claim to have acted in self-defence, and to present you as the true aggressor in this incident.

13 The jury's rejection of your defence of self-defence, as the verdict implies, strongly suggests they accepted that in this incident you too readily resorted to a violent retaliatory response to the conflict. In this case, doing so ended with tragic, yet sadly predictable consequences.

14 In short, you killed Mr Pye by an inherently perilous act. If you were acting in response to a perceived threat, your reaction was out of any reasonable proportion to that threat. Although the stabbing was far removed from a coldly, pre-planned event, you were not entirely free of some choice in the situation. What occurred was avoidable, and the product of your tendency to confront conflict with a violent solution.

15 In your favour, there was no attempt on your part to cover up what you had done. After you stabbed Mr Pye you remained at the scene with him and called '000' to try and get him assistance.

16 Dean Pye was 37 years of age when he died. He left behind his mother, father and two sisters. In victim impact statements his family tell of the immense grief and loss they have suffered. His mother describes Dean as having been a fun loving person who loved company. She has been unable to focus on things since his death and describes how daily she still becomes emotional with tears welling up. It has imposed strains on her relationships. She loved her son so much she does not believe she will ever come to terms with his loss.

17 His father, two years on, wonders when the pain and grief will subside. He laments that they only have a plaque at the crematorium to remember him by. One of his sisters speaks of the emotional rollercoaster it has been since his death. She describes the severe anxiety she experiences with each step of the legal proceeding, and the ongoing difficulty she has in her work environment explaining her continuing grief.

18 You have been, yourself, something of a victim of your own actions. Shortly after his death you described Mr Pye as "your best friend".

19 You were charged on 26 January 2010 and were held in custody pending trial. During your record of interview with police, when accused of murder, you said ... "It's more like manslaughter, I didn't mean to hurt him ... ". However you did not offer to plead to manslaughter straight away. A committal proceeding was held on 7 February 2011. Again you did not offer to plead guilty to manslaughter. Your lawyers appeared on your behalf to test the evidence against you.

20 On 2 May 2011 Bell J heard argument concerning tendency evidence proposed to be led by the Crown at your trial. His Honour's decision went on appeal to the Court of Appeal and was remitted back. On 23 May 2011 further evidence was heard before Bell J on that issue. You made an offer to plead guilty to manslaughter three days later, pending his Honour's decision. You then contested the charge of murder at the trial before me.

21 Although the Crown agrees that you are entitled to some benefit for your offer to plead guilty to manslaughter, nevertheless it argued you have not expressed true remorse but only "regret". The law says a sentencing judge needs to distinguish between the two.[1]

22 What weight should be given to your offer to plead guilty to manslaughter as a mitigating factor? Such weight will vary from case to case. A wide variety of factors may be taken into account.[2] Matters to be taken into account include the timing of the plea, the strength of the Crown case, whether the offer is indicative of true remorse, whether witnesses or a complainant has been saved the trauma of giving evidence, and whether a grieving family has been saved the ordeal of a trial. In addition there is the utilitarian benefit of avoiding the costs of the trial or lengthy proceedings.

23 The Crown says your offer to plead was late; you exposed witnesses and the family to the ordeal of the committal; and when you did offer to plead, it was when the tendency evidence dispute before Bell J looked like it was going against you. The Crown also argued that its case against you for manslaughter was strong, although I did not understand it to be put - correctly in my view - so highly as to say it was necessarily your best conceivable outcome.[3]

24 On your behalf it is argued that the prospect of negotiating with the Crown to resolve the matter was complicated because the Crown was convinced it had a very different case to the case that ultimately was presented to, or accepted by, the jury. First, the Crown was initially confused by the presence of a very large amount of blood at the scene suggesting there had been an attempt on your behalf to clean up the scene before calling emergency services. The blood later turned out to be your own blood, shed somewhat earlier, as a consequence of a medical procedure of your own. Secondly, there were the numerous superficial injuries which, relying on the opinion of Professor Stephen Cordner, the Crown presented as being defensive injuries sustained by Mr Pye defending himself from your assaults.

25 In this context, it is somewhat understandable, as it was put to me, that your legal advisors would feel reluctant to try and resolve the matter with the Crown at an early stage, and would wish to explore the evidence at a committal thinking that a murder trial would be inevitable. It was further submitted that a plea of guilty to manslaughter at an early stage may have entailed the apparent concession of an offence of a graver nature than was ultimately found to be the case.

26 Nevertheless, you did eventually offer to plead guilty to the lesser charge and these considerations do not entirely explain the length of the delay in doing so. Against them there is the coincidence of the timing of your offer in relation to the proceedings on the tendency evidence, and the strength of the Crown's case against you.

27 The weight to be given to your offer to plead guilty is influenced by the extent to which it denotes genuine remorse, itself a mitigatory factor for sentencing.

28 I heard the audio recording of your '000' calls in the immediate aftermath of the stabbing. I saw the DVD of the record of interview which you undertook with the police. There were numerous expressions on your part of immediate horror at what you had done. The Crown says these things only betoken regret at what had occurred.

29 I accept that even genuine remorse is never likely to be entirely "pure" and devoid of some degree of self interest.[4] Nevertheless, I am satisfied that your expressions of remorse at the time were much more than mere self-pity at the situation in which you had placed yourself.

30 Your screams for help in the '000' calls were, in my view, genuine pleas for assistance for the injured victim. In one call you said "It's my fault" ... and asked, "Is he going to be alright?" In the record of interview 24 hours later you said, at various points, ... "I just wanted him to be alive" (Q 607); then speaking of your own reaction you said,... "'Oh my God, what have you done?'" (Q 633); at another point, you referred to the biblical statement against killing and lamented, "Great Christian I am" (Q 814); and, rejecting the suggestion that you had tried to clean up before calling emergency services, you said... "I wanted to help him. I wanted him to be alright, I didn't want him to be dead" (Q 871).

31 A psychologist who has seen you recently, Patrick Newton said this:

Ms Kells expressed deep sorrow at the death of Mr Pye. She said, "I killed someone I loved: I still love him really. If there is any way I could take it back I would, but the worst thing is there's nothing you can do to take this back. I know heaps of people have suffered - his mum is without her son - and it's all because of me." Ms Kells was tearful throughout her discussion of her offending.

32 Undoubtedly, later expressions of remorse can be contrived. But having heard the calls and seen the record of interview I accept that your earlier expressions were genuine. They also make it more likely that what you told Mr Newton was also genuine.

33 Despite its apparent lateness, in the context of the complications I have described and what appears to be the consistent acceptance of responsibility for your actions, I think that your offer to plead guilty to manslaughter was consistent with a true sense of remorse and not mere regret.

34 Weighing all these matters, in my view, in addition to an allowance for the utilitarian benefit it would have brought, your offer to plead guilty and your remorse entitle you to a moderate discount off the sentence you would have otherwise received without those elements.

35 You were born on 29 October 1983 which made you 26 years of age when you killed Mr Pye. You are now 28.

36 Your mother was 17 years of age when you were born. You had no contact with your biological father for a long period of time. When you were about 5 your mother formed a new relationship with a man you regarded as your stepfather, although you did not have a close relationship with him. He and your mother had another child, your half brother.

37 Although you liked school you were a solitary girl who enjoyed reading and caring for pets. Nonetheless behavioural problems emerged early. You believe your mother was hard on you and your relationship with her deteriorated.

38 By the age of 13 you left home and travelled to New South Wales to reside with your biological father. He was someone whom, from a distance, you had idolised and you had great expectations of establishing the father-daughter bond. Your counsel told me that expectation proved to be sadly misplaced. On your instructions I was informed your father drank heavily and, after a few months, sexually assaulted you. You felt guilty and your hopes were shattered. You left him at the age of 14 to live with neighbours and eventually returned to Melbourne. You have had no contact with your mother since you were 19. You now have no contact with any of your family.

39 You became a cannabis user in your early teenage years, a habit you continued until your recent imprisonment. You later graduated to the use of stimulants, prescription medications and opiates.

40 You stayed at school until you left in Year 10. Apart from a twelve month course in childcare and a brief stint working as a dancer you have not been employed.

41 You have had several adult relationships with men, first with a man with whom you had a son, Blake, born in 2003, when you were 19. You say that although that relationship was good you were both too young. You have had irregular contact with Blake who is now 9 years of age.

42 You then had a relationship of five or more years with Mr Meyer whom I have already mentioned. He was somewhat older than you. You had two sons with him, Tyler born 2008 and Jordan born 2009. I was told that he helped you to reduce your drug use, but you became troubled by his alcohol intake and a pattern of arguments developed. The Department of Human Services removed the children for a time, you were burdened by guilt about them, your arguments with Mr Meyer worsened and you ultimately separated. It is said that you harbour intense feelings of failure as a mother.

43 You had another short relationship with a man called John. It was in connection with that relationship that you were charged and convicted in 2009 of an offence. You do not have extensive prior convictions. The two of relevance for these purposes were for being in possession of a controlled weapon without excuse - one in 2004 and the other in 2009. The latter occasion involved an incident in which you had been found by the police in possession of a knife, although you had not actually used the weapon. You had armed yourself with it and apparently told '000' that your former boyfriend, John, had threatened to bash you and you intended sorting it out with a knife.[5]

44 Your relationship with Mr Pye was, as I mentioned earlier, somewhat volatile. You told the psychologist, Mr Newton, that you "fought most days" and that your fights regularly included physical violence. You told the police, in the record of interview, that you had each threatened to stab one another "millions of times". You had separated from Mr Pye on several occasions but you always managed to reconcile

45 You first consulted a psychologist at your mother's insistence when you were aged 14. You have seen a number of mental health professionals and counsellors over the years. Mr Newton notes a reference to a diagnosis of "bipolar disorder" in your record of interview, but found no indication in your history to support such a diagnosis. You have been prescribed Xanax to address your symptoms of emotional volatility.

46 Mr Newton estimates your underlying intelligence to fall at the high end of the average range. Your mental status was otherwise unremarkable. You experienced no clinically significant symptoms of anxiety or depression; your thought processes were lucid, and you showed no signs of psychosis. Your reality testing and moral reasoning were unimpaired.

47 Nevertheless, he believes your personality indicates the presence of severely dysfunctional personality traits having their genesis in your disturbed early environment. You tend to be fearful that anyone you might allow to become close to you is likely to exploit your vulnerability or harm you. In his opinion you have been left on the horns of an irreconcilable dilemma: on the one hand feeling threatened by others and fearing that you will be exploited, but on the other believing that you are not able to cope with the challenges of life without recourse to the support of a more dominant partner.

48 He acknowledged that his single interview with you did not provide sufficiently definitive information to be certain, but in his view your personality is characterised by significant Borderline and Antisocial Traits. He believes you to be at significant risk of developing a fully-fledged personality disorder unless you participate in effective remedial treatment.

49 I should mention that no suggestion was made on your plea that the circumstances warrant the application of the principles in R v Verdins[6], nor do I think that they apply.

The severity of the personality problems from which Ms Kells suffers militates against unguarded optimism in her case. Even with optimal treatment, the entrenched issues identified in her case suggest that she will require intensive rehabilitative input for at least the medium term and that she is likely to experience a very challenging treatment course. Accordingly, it would be my respectful suggestion that there may be some benefit in considering a disposition which allows for a maximal treatment focus and a relatively lengthy period of supervision in the community.

Without the provision of intensive assistance, I would consider Ms Kells' prognosis for recovery to be poor ... .

51 On its face, Mr Newton's opinion raises concerns about the prospect that you will not respond to sanctions but will simply return to offending.

52 Your counsel argued that it is wrong to equate the prospects for rehabilitation from disorder, which is what Mr Newton was speaking about, with the prospects for rehabilitation from offending, for which there is brighter hope.

53 He bases the brighter hope on a supposed, watershed realisation on your part that your previous habit of violent response to conflict was not normal, and can lead to the kind of drastic consequence that has occurred in this case. He says your previous deluded view about the gravity (or lack of it) of your behaviour has now given way to greater insight.

54 I question whether there is any serious evidence of this watershed realisation, although one would dearly like to believe in it. I am not satisfied that genuine remorse alone provides any confident basis for believing there is now markedly reduced prospects of you re-offending. No opinion is expressed by the psychologist to that effect. Nonetheless your remorse is a start and may be taken in your favour for other reasons as I have already stated.

55 Accordingly, I do not place particularly significant weight on rehabilitation as an objective in sentencing you. In my view your offence calls for a sentence that reflects just punishment for killing a relatively young man, and the court's denunciation of your resort to violence to deal with conflict. I do think, however, that there is some merit in Mr Newton's opinion that I should afford you a longer than usual period of supervision when fixing a non-parole period to maximise the ability of others to ensure treatment is a focus when re-integrating you into the community in due course.

56 The maximum penalty for the crime of manslaughter is 20 years' imprisonment.

57 I heard submissions from counsel concerning current sentencing practices and an appropriate range of imprisonment in your case.

58 In my view your offence does not sit at the particularly severe end at the range of manslaughter offences. It involved a single, acute blow; a degree of spontaneity; you stayed at the scene; you expressed genuine remorse and you offered to plead guilty to the offence of which you have been convicted.

59 However, neither does your offence sit at the lowest end of the range of manslaughter cases. Your act emerged from a night of angry and aggressive conduct; it could not be said to be the product of isolated, out-of-character behaviour; you were not especially young at the time; and you did have a series of opportunities to avoid the final confrontation.

60 In being sentenced you deserve consideration and allowance for your offer to plead guilty and your genuine remorse but, as I have said, although such remorse provides a better basis for optimism of rehabilitation than if it were lacking, there is otherwise no solid grounds for high optimism. For the reasons I have mentioned I think that a longer than usual period of parole would serve the purposes of specific deterrence, protection of the community and, to the extent that it is achievable, your prospects of rehabilitation.

61 To address these purposes I sentence you to a term of imprisonment of 8 years. I fix a non-parole period of 5 years. I declare that you have already served by way of pre-sentence detention a period of 760 days, up to and including today, which are to be reckoned as already served under the sentence I have just imposed.

[1] Va v The Queen [2011] VSCA 426, [15] [17].

[2] Sherna v The Queen [2011] VSCA 242, [88].

[4] R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 403 [21].

[5] KJM v The Queen (No 2) [2011] VSCA 268, Appendix A (1st Ruling), [24].

[6] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32].