R v Kelly [2000] VSCA 164

9. The applicant admitted to 22 prior convictions from January 1973 to January 1986, two of which, committed in September 1976, were for assault occasioning actual bodily harm. In view of the lapse of time since the last prior conviction, the applicant was treated for sentencing purposes by his Honour as a person with no relevant prior convictions.

12. The maximum penalty for count 2 was 20 years' imprisonment[1]. The applicant was sentenced to a term of five years' imprisonment on count 2 and to a term of one year's imprisonment on count 4. The learned sentencing judge directed that the whole of the sentence on count 4 be served concurrently with the sentence on count 2, making a total effective sentence of five years. A non-parole period was fixed at two years.

15. 5 The applicant applies for leave to appeal against the sentence imposed upon him on the grounds that:

(a) the sentence is manifestly excessive;

(b) his Honour did not give sufficient weight to the provocative conduct of the complainants and the effect that it would have to the appellant having regard to his relationship;

(c) although the learned sentencing judge indicated that he was taking rehabilitation, remorse, plea of guilty and other mitigating factors into account, "the sentence imposed does not seem to reflect this"; and

(d) his Honour did not give sufficient weight to the significant reform and rehabilitation that had taken place.

21. Before I deal with each proposed ground of appeal, I will summarise the circumstances giving rise to the charges. The applicant and Ms Neill, who is about four years his junior, had been in a relationship for approximately one year at the time the relevant offences were committed. The learned sentencing judge found that the applicant was totally devoted to Ms Neill. The applicant, who lived in Narre Warren, frequently stayed overnight at her flat in Dandenong, often for three or four nights a week. In late 1997 Mr Sikora came to live at the flat, as a boarder, in a separate room from that of Ms Neill. It was at Ms Neill's flat, where she had lived for some six years, that the applicant threatened both Ms Neill and Mr Sikora, ordered Mr Sikora, at gunpoint, into a room in the flat, and shot Ms Neill with a sawn-off .22 rifle.

24. His Honour found that the relationship between the applicant and Ms Neill foundered in the week leading up to Saturday 28 November 1998. On the night before the shooting, the applicant and Ms Neill had a difference over what he perceived to be infidelity by her with Mr Sikora resulting from the applicant seeing the two victims in physical contact with one another with sexual connotations. He felt deceived, became depressed and angry and left the flat. On the Saturday, late in the afternoon, the applicant went to a hotel in Dandenong, where he saw Ms Neill and Mr Sikora. A heated altercation ensued. The applicant was angry and assaulted Ms Neill - he grabbed her by the arm and either dragged or pushed her from her chair to the floor. He also pushed or punched Mr Sikora. That night, at about 9 p.m., the applicant went to the flat. His Honour found that he was overwrought, intoxicated and angry. He again saw Ms Neill and Mr Sikora together in the kitchen but there was no suggestion that they did anything that upset the applicant. He went outside to his car and returned with a bag. In the presence of the complainants, he opened the bag and withdrew from it a pair of Carlton cold stubbies and then a thick, coiled rope. Ms Neill asked what the rope was for and the applicant replied, "You'll see". He then withdrew from the bag a sawn-off .22 rifle. He rested the gun against Mr Sikora's head and stated, "You are going to die tonight". He then loaded bullets into the gun, saying he was going to kill the complainants. At gunpoint, he ordered Mr Sikora into his room and then into Ms Neill's room. Both complainants were terrified and thought they were going to die. Ms Neill tried to ring for help, but the applicant prevented her from doing so saying, "I'm going to kill you, you're going to die". He again threatened Ms Neill and ordered her into the bedroom. After starting to comply, she changed her mind and moved instead towards the front door. The applicant aimed the rifle at her and then shot her in the left buttock at close range. He fired at least one further shot at her but missed. Ms Neill managed to flee the flat, after which the applicant drove home.

27. The applicant was apprehended shortly before 10 p.m. that night at his home and taken to the local police station, where he declined to answer questions upon legal advice. He was then charged with the offences to which I have already referred.

30. Ms Neill was taken by ambulance to the emergency department of the Dandenong Hospital. Upon x-ray and then exploratory surgery, a sizeable metallic fragment was found near the left ischial bone, its path close to the left sciatic nerve. The bullet was removed and the damage repaired as far as possible. In his report of 9 February 1999, the surgeon who performed the operation to remove the bullet and repair the damage stated that, had it not been for the presence of the ischial bone, the bullet may well have penetrated Ms Neill's rectum. She was discharged from hospital on 3 December 1998.

33. The injury suffered by Ms Neill as a result of the shooting has caused her severe pain and considerable physical and psychological disability. Moreover, the treating doctor considered that, as at July 1999, Ms Neill would require medical treatment for a "long period of time". She has a permanent indented scar on her left buttock. In her victim impact statement, which is dated 26 April 2000, she describes her severe trauma from being shot in her own home at close range. She continues to suffer considerable pain as a result of her injury which is not helped by medication. It has also inhibited her movements. She cannot sit or stand for any length of time. She has been undergoing psychiatric treatment and has become unduly sensitive to noises including the ringing of the telephone, thunder, and even a knock at the door. She continues to live in fear of the applicant and has nightmares about him. The evidence is that her physical and psychological problems will continue. Moreover, because of threats made to her by the applicant's friends, Ms Neill was forced into a witness protection programme which, in effect, has deprived her of her usual freedom. She has a new identity, has to live at a location that is kept secret and has only limited access to her daughter and other relatives and friends. As a result she now leads a lonely and isolated life, suffers from depression in respect of which she receives counselling, and has other associated problems. It seems that this situation is also likely to continue.

36. The learned sentencing judge took into account, inter alia, the victim impact statement for the purpose of sentencing the applicant and there was no suggestion that he should not do so. He also had regard to the report of Ms Crutchfield, psychologist, dated 28 July 1999 and to the report of Mr David Zuker, physiotherapist, dated 1 August 1999, concerning Ms Neill. Those reports demonstrate the severe trauma and ongoing physical difficulty the applicant's offending conduct has caused Ms Neill.

39. As I have mentioned earlier, for sentencing purposes, his Honour regarded the applicant as if he were a person with no prior convictions, but he did note that the nature of the prior convictions demonstrated his continuing problem with alcoholism over the years. The applicant, who had a difficult childhood during which he lost one eye and had to contend with at least one parent who drank to excess, left school at the age of 15 and has generally had a difficult life affected by an excessive intake of alcohol. He suffered from alcoholism over many years. His Honour was impressed with the evidence of the applicant's character witnesses which showed that he was not a self-centred person and that he had carried out significant and considerable work in caring for others. He was devoted to, and cared for, his brother who eventually died of a heart attack in October 1998, a month prior to the incident. His Honour considered that the loss of his brother made the applicant emotionally even more vulnerable in November 1998.

42. Mr Melasecca, who appeared for the applicant, in his comprehensive set of submissions, contended primarily that the sentence was manifestly excessive and agreed that the other three grounds of proposed appeal are, in effect, particulars of the first ground. First, he argued that his Honour failed to give sufficient weight to the provocative conduct of the complainants and its effect on the applicant. It is true that the courts have recognised that, in certain circumstances, provocation, in the non-technical sense of the word - that is to say, not in the sense in which it is used in the law of homicide - may constitute a mitigating factor in sentencing considerations - see, for example, R. v. Unal Okutgen[2]; R. v. Pearce[3]; R. v. Salew[4].

45. The provocative conduct which was recognised in those cases as being relevant to mitigation was constituted by acts or words on the part of the victim which incited or induced the accused to respond almost immediately or very shortly thereafter in the form of the offending conduct while in an agitated or angry state. Thus, in Okutgen, the serious injury was inflicted in the course of a fight between the parties which included the accused and the victim. In Pearce, the offenders, who were Aborigines, were racially insulted and were told to leave a party because they were Aborigines. They returned with weapons and committed the offences in question. In Salew, the provocation arose from the accused's discovery of a "white man" leaving the flat of his Ethiopian wife, and the wife's use of a knife on the accused, upon which he committed the offending conduct[5].

48. I doubt whether the events in question in the present case amounted to such "provocation" as distinct from the applicant acting while he was distressed. If, however, there was provocative conduct by the complainants, it could only have been their conduct on the Friday night to which, significantly, there was no relevant response by the applicant. It is difficult, however, to describe the complainants' mere presence in the kitchen together on the Saturday night as amounting to provocative conduct which could be said to have caused the applicant to engage in the offending conduct in the heat of the moment. In my view, the victims were relatively blameless in this case - see R. v. McGrath[6] and R. v. Howarth[7]. Be that as it may, the events on the Friday night and during the Saturday, looked at against the background of the relationship between the applicant and Ms Neill, might explain, but do not excuse, the applicant's conduct. To that extent the conduct can be treated as a mitigating factor, and was so treated by his Honour. Depending on circumstances, the mere fact that the conduct of the complainant cannot be properly characterised as "provocative" does not necessarily mean that it has less force as a mitigating factor than conduct that can be properly described as "provocative".

51. His Honour's sentencing remarks make it clear that he took into consideration as a mitigating factor the events in question as explaining how the applicant, who was not naturally disposed to violence and, in particular, not towards Ms Neill, came to engage in the offending conduct. There is nothing in his Honour's sentencing remarks that indicates that his Honour failed to give the conduct of the victims and the events on the Friday and the Saturday appropriate weight.

54. Mr Melasecca stressed the importance of rehabilitation and the necessity that in appropriate cases - of which he said this was one - it be given considerable weight by the learned sentencing judge. In that context he referred to a number of authorities which emphasise this. It is obvious from his Honour's sentencing remarks, however, that he gave significant weight to the rehabilitative progress made by the applicant and to his prospects in that regard for the future. His Honour referred to rehabilitation on a number of occasions in his sentencing remarks. Thus, his Honour had regard to the report of the rehabilitation consultant, Mr Lamberti, dated 19 April 2000, which deals, inter alia, with the applicant's successful progress in dealing with his problems with alcohol. The learned sentencing judge also had regard to the report of Mr Dungey, a clinical psychologist, dated 20 April 2000, who opined that, given the applicant's background, his personality was that of a well balanced and adjusted person who has made "quite an astonishing recovery from alcoholism". That his Honour gave considerable weight to the applicant's prospects of rehabilitation is manifested in his fixing the non-parole period of two-fifths of the head sentence. By doing this, his Honour obviously recognised the applicant's progress and sought to enhance his prospects of rehabilitation under appropriate supervision.

57. Turning to the question of whether the sentence is manifestly excessive, it is trite that this does not admit of much argument. Generally, the sentence strikes one as being manifestly excessive or it does not. In any event, in determining whether a sentence is manifestly excessive, it is not a question of what sentence this Court would have imposed on the applicant had it been in the shoes of the sentencing judge, but rather whether the sentence in question is outside the range of sentences available. As Ms Judd, who appeared for the respondent, pointed out, the range of sentences for intentionally inflicting serious injury is wide. The sentence to be imposed by his Honour was to be determined having regard to the gravity of the offence, the sentencing principles and matters personal to the applicant, including mitigating factors.

60. It is clear that his Honour gave the applicant the benefit of doubt. He considered the applicant had pleaded guilty at the earliest opportunity; that he had significant remorse for the offences as demonstrated not only by his plea of guilty but also by his general character; that he had no relevant prior convictions; that he had an impressive body of character evidence and that he had excellent prospects of rehabilitation. His Honour regarded the fact that there had been no history of violence by the applicant towards Ms Neill as of particular importance.

63. As a reflection of his view that the applicant has excellent prospects of rehabilitation, his Honour fixed, as I have mentioned earlier, a significantly longer period of parole than he would otherwise have done. In the circumstances, it cannot be sensibly said that his Honour did not give sufficient weight in his sentencing considerations to the applicant's rehabilitation, remorse and his plea of guilty.

66. In my view, his Honour was entitled to regard the offence as a very serious one, particularly having regard to the fact that the shooting of Ms Neill at close range was highly dangerous, deliberate, and took place in her own home. The brief summary of events, no doubt, does not adequately convey the seriousness of the applicant's actions or the terror which he must have intended to, and did, impart to his victims. The production of the rope, for example, and his implied threat as to its possible use, the production and the loading of the rifle with accompanying threats that he would kill them, could only have been calculated to terrorise the victims, probably by way of revenge for being jilted by the woman he loved and trusted but who, in his view of the events, had betrayed that trust.

69. The shooting was the result of the applicant's anger at Ms Neill disobeying his instructions and attempting to leave her flat. No doubt he brooded during most of the Saturday in an intoxicated state over what he believed was Ms Neill's infidelity

and breach of trust, thereby building up an anger towards the victims. But his depressed, intoxicated and angry state does not lessen the seriousness of the offence, which involved first the perpetration of psychological cruelty on his victims and then the use of the gun in order to inflict serious injury on the woman he says he loved. He was fortunate that the shooting did not result in her death.

73. It should be borne in mind that the seriousness and concern with which these offences are regarded by the community are reflected in the increase in 1997 in the maximum penalty from 12½ years' imprisonment[8] to 20 years' imprisonment, effected by the Sentencing and Other Acts (Amendment) Act 1997[9]. Furthermore, his Honour was entitled to regard as prominent amongst the sentencing principles general and specific deterrence and denunciation of the use of the gun by the applicant in Ms Neill's home with the intention of causing her serious injury and using it to terrorise both complainants. In my view, his Honour did not give those principles excessive weight.

76. Notwithstanding Mr Melasecca's able arguments in support of his contention that the sentence is manifestly excessive, I have been unable to accept them. In my view, the learned sentencing judge fixed the sentence having regard to the gravity of the offence, the relevant principles of sentencing, and the personal and mitigating factors that operate in favour of the applicant. The sentence which his Honour imposed was well within the range for an offence of the seriousness of this one.

79. Consequently, it is my view that this application should be refused.

92. The order of the Court is that the application is refused.

[1] Section 16 Crimes Act 1958.

[2] (1982) 8 A.Crim.R.262 at 264 per Starke,J. with whom Crockett and O'Bryan,JJ. agreed.

[3] [1983) 9 A.Crim.R.146 at 150 per Brooking,J. with whom Young, C.J. and Kaye,J. agreed.

[4] [1998] VSCA 141 at [23] per Batt,J.A. with whom Phillips, C.J. and Ormiston,J.A. agreed.

[5] See also R. v. Aboujaber (unreported, Court of Appeal, 9 October 1997).

[6] [1999] VSCA 197 at [18].

[7] [2000] VSCA 94.

[8] See s.119(1) and item 8 of Schedule 2 of the Sentencing Act 1991.

[9] See s.60 and item 10 of Schedule 1.