R v Kelly [2000] VSCA 59

12. At the resumed hearing, the judge and both counsel had received the report of Dr D. Senadipathy, a psychiatrist, in relation to the applicant. Also in evidence during the plea was a Victim Impact Statement by Ms Saunders, a hospital and psychological report and a report by Dr J. Walsh on Ms Saunders and a letter from the applicant to the judge dated 29 September.

15. On 29 September, the judge sentenced the applicant to imprisonment on count 1 for ten years and on count 2 for one year, the sentences to be concurrent. His Honour fixed a non-parole period of seven years and recommended that whilst in custody, the applicant be given proper psychiatric and psychological treatment. His Honour also ordered pursuant to s.464ZF of the Crimes Act, that a forensic sample be provided by the applicant and pursuant to s.78(1) of the Confiscation Act 1997, that certain items used by the applicant in the offences be confiscated. The applicant now seeks leave to appeal against sentence on the grounds that -

(a) the judge failed to give sufficient weight to the plea of guilty, remorse, the applicant's voluntary withdrawal from the offence, the lack of any permanent physical injuries to the victims, the applicant's deep depression being the cause of the offences, his lack of relevant prior convictions for violent propensity, his prospects for rehabilitation and capacity for self improvement and the fact that the motive was suicide.

(b) the judge gave excessive weight to the prisoner's acts preparatory to his original intention to incinerate the house by purchasing petrol and taking it to the house, special deterrence and the deep fear and distress occasioned by the offences to Ms Saunders.

(2) The judge failed sufficiently to take into account the mental illness of the applicant.

(3) The judge placed too much weight on specific deterrence.

(4) The judge erred in finding that a fact in aggravation of the offence was the fact Ms Saunders still does not know what occurred while she was asleep.

24. The facts giving rise to these offences, taken largely from the judge's reasons for sentence, were as follows. The applicant and Ms Saunders had as I have said, separated six weeks before the events of 25 November and Ms Saunders had decided to move interstate. The applicant, Ms Saunders and the applicant's daughter had lived together as a family at 30 Cromwell Street, Sebastopol for almost eight years. KK was the applicant's daughter from a previous relationship. When Ms Saunders and the applicant separated, she continued to live by herself in Cromwell Street, the applicant and his daughter moving to different premises in Spencer Street, Sebastopol. Although relations were difficult between the former partners, they were still peaceful and amicable. However, once Ms Saunders informed the applicant of her decision to move interstate, the applicant became severely depressed. He decided accordingly to end his life and that of his partner and his daughter. He legally obtained for himself a supply of Temazepam tablets and he proposed to administer them to himself and the others in sufficient quantity to render them all unconscious. He arranged to have dinner with Ms Saunders and his daughter at the former's premises and went there on the day of the offences.

27. Earlier that afternoon the applicant took a 20 litre plastic drum to a service station at Sebastopol and filled it with petrol. He then took it to Ms Saunders' premises while she was not at home and placed it in the garage. He then entered on his computer a suicide note addressed "to Mum and Dad." At 3.30 p.m., he collected his daughter from school and took her to get her hair cut. He took her home and she put on a nice dress. He then placed the sleeping tablets in his pocket and drove to Cromwell Street. He cooked dinner for the three, chicken kebabs and rice as a main course and chocolate mousse for dessert. He placed 11 Temazepam sleeping tablets in Ms Saunders' chocolate mousse and four in his daughter's. The three then ate their meal, including the dessert.

30. After the meal Ms Saunders and his daughter went into the lounge-room to watch television while he did the dishes. The others became sleepy and his daughter lay down, complaining of feeling funny. Ms Saunders fell asleep. The applicant then carried Ms Saunders up to the main bedroom and laid her on the bed. The applicant lay down beside her, holding her. She later discovered that some of her clothing had been removed while she was asleep. The applicant afterwards said to the police during a recorded interview, that he had intended strangling her with that clothing.

33. His daughter began to cry, so he returned to the lounge-room and held her for a short time before returning to the main bedroom. Meanwhile, Ms Saunders had begun to stir and said that she was going to play badminton. The applicant then attacked her by pushing a pillow into her face, forcing her to the floor and attempting to suffocate her with the pillow. Ms Saunders fought back despite being heavily sedated. The applicant then attempted to strangle her with his hands around her neck. She lapsed again into unconsciousness, believing she was going to die. She then again attempted to speak with the applicant, when she partly regained consciousness and the applicant then stopped his assault upon her. At some point in this process, according to the applicant, he realised the enormity of what he was doing and hit Ms Saunders twice on the chest, intending to resuscitate her or to restart her breathing.

36. The applicant himself rang the Western Regional Ambulance Service for an ambulance at 7.30 p.m. He said that an ambulance was needed quickly as he had given his daughter some type of tablet and he had tried to kill his wife and they had to get there quickly. An ambulance was immediately dispatched and D24 was informed.

39. KK rang Ms Saunders' parents and asked them to come quickly because, "something really awful has happened to Mum". She was crying and very distressed. Shortly afterwards the police and an ambulance arrived. Fortunately the physical injuries to Ms Saunders were not as severe as they might have been. She was kept at the Ballarat Health Services Base Hospital overnight for observation and given limited medication to assist her. A medical examination showed that she had suffered a number of petechial haemorrhages over her face, particularly noticeable on her upper eyelids and that blood was present around her nostrils, an indication of attempted strangulation and suffocation. She also suffered other lesser injuries. The applicant's daughter was examined in the Emergency Department of the hospital but was found medically well and discharged without treatment.

42. To the police who attended the scene, the applicant said, "I have just tried to kill my family." During his interview with the police on the same day, the applicant's first four answers were, "I want to die." The applicant said of the clothing he had removed from Ms Saunders while she was unconscious, that he was going to use it to strangle her. He said he had obtained 20 litres of petrol that afternoon and put it in the back shed and that his intention after he had drugged Ms Saunders and his daughter, was that he was going to light a candle while they all lay together unconscious and was going to cause the house, by reason of the burning candle, to be incinerated with the three of them in it.

45. The report by Dr Senadipathy noted that the applicant had had a very troubled childhood arising from the fact that his father was a narcissistic alcoholic, who was violent and never able to settle in one place. The applicant was a very unhappy and frightened child, who left home and school at the age of 15, after finding work with the Road Show, with which he remained for a year. He then lived on the streets of Melbourne until he was 18 or 19 years old.

48. He first consulted Dr Senadipathy in 1990 with symptoms of depression, resulting from the stress associated with coping with a very difficult marriage. Whilst in custody for the present offences, the applicant had demonstrated moderate to severe symptoms of depression and had threatened suicide. Dr Senadipathy's opinion of the applicant's state included the following comments -

"I found Mr Kelly to be a desperate man who had probably suffered from a dysthymic disorder from early childhood, resulting from a traumatic upbringing he has had. He is an intelligent man who had initially survived on the streets by adopting a delinquent lifestyle, but was able to change his ways at the age of 20, after serving a Community Order. Since then he has tried his best to further his life, that was probably enhanced by the birth of [KK] who was initially lost to foster care, because of mother's illness and abnormal behaviour. His relationship with Ms Saunders, gave him some stability and promise of a better future. When the relationship was unilaterally ended, he managed with difficulty. Once Ms Saunders informed of her decision to leave town, he rapidly decompensated. It is probable that he was overwhelmed by her decision and then rapidly became depressed. The most appropriate diagnosis is an acute adjustment reaction. He lost insight and believed dying together as the best solution. It is probable that at the time of committing the crime, the severity of depression, extreme sense of object loss and a nihilistic sense of hopelessness diminished Mr Kelly's judgement. Mr Kelly probably understood the gravity and illegal nature of the offence, but he saw it as the best option available to all three of them."

52. Dr Senadipathy was unable to attend the hearing of the plea, but was contacted by the applicant's counsel at the judge's request and reported further through counsel, that the applicant was not suitable for a hospital security order. The doctor was reported as saying he took the view that the applicant did suffer from a severe bout of depression at the time of the commission of the offences and that he still suffered from a lesser degree of depression, but could receive adequate treatment within the prison system.

55. The judge accepted this evidence. During his sentencing reasons his Honour said he was satisfied on the material placed before him that the applicant was severely depressed at the time of the offences and later said:

"I take into account the fact that you were severely depressed at the time. Because of that psychiatric state, not insanity, but a psychiatric illness, it is not appropriate in your case to place emphasis upon the principle of general deterrence. As to special deterrence, I note what was said in R v Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398, item 4 at page 400, that your counsel Mr D'Arcy has relied upon, but in your case Mr Kelly, the question of special deterrence is not unimportant."

59. In stating that it was not appropriate to place emphasis upon general deterrence, it is possible that the judge was being unduly generous to the applicant. In R v Champion (1992) 64 A.Crim.R. 244 at 254-255, Kirby, P., with whom the other members of the New South Wales Court of Criminal Appeal agreed, said that general deterrence is not eliminated, but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap, a proposition which has been cited with approval on numerous occasions in this Court. See e.g. R v Richards & Gregory [1998] 2 V.R. 1 at 10, R v Yaldiz [1998] 2 V.R. 376 at 381. But the judge in this case may have intended no departure from this approach in stating that he would not place emphasis upon general deterrence.

62. The maximum penalty for attempted murder is now 25 years' imprisonment. In R v Cengiz [1998] 3 V.R. 720, Harper, A.J.A. said at p.739 that a sentence of ten years imprisonment with a non-parole period of six years for attempted murder, was one of the highest imposed for this offence. This statement caused the Court which heard R v Kasulaitis [1998] 4 V.R. 224, to ask for sentencing statistics for attempted murder over the preceding five years. The statistics provided confirmed the view of Harper, A.J.A. although the sentences provided showed a trend towards higher head sentences as the five years under review progressed. But Batt, J.A. with whom the Chief Justice and Callaway, J.A. agreed, expressed the firm view that a sentence of ten years' imprisonment should not be treated as the practical ceiling for sentences of attempted murder, even when committed by persons with no prior convictions for offences of serious violence. His Honour said at 233-234:

"In my view, it is open to impose a more severe punishment in a bad case. It all depends upon the circumstances. That ten years' imprisonment must not be treated as the ceiling in practice is shown by the fact that longer terms of imprisonment have been imposed for offences of intentionally causing serious injury or its predecessor. In R v Mallinder (1986) 23 A.Crim.R. 179 for instance, the sentence as reduced on an appeal was 13 years' imprisonment with a minimum term of 11 years. Attempted murder is a more serious offence in the criminal calendar, as is shown by the different maximum penalties provided by Parliament and by the necessity for an intention to kill in the case of attempted murder. Where the recently increased maximum of 25 years' imprisonment is applicable, ten years' imprisonment will clearly be unsustainable as a practical ceiling even for effectively first offenders."

66. This statement was quoted and applied by Callaway, J.A. in D.P.P. v Adajian [1999] VSCA 105, which involved a director's appeal against an inadequate sentence for murder and attempted murder. In what was unquestionably a very bad case, the judge had sentenced the prisoner to life imprisonment on two counts of murder and ten years' imprisonment for attempted murder. In allowing the appeal on the sentence for attempted murder, the Court, taking into account the discount on Crown appeals for double jeopardy, imposed a sentence of 13 years' imprisonment on the count of attempted murder.

69. In Kasulaitis, the offender was convicted on a plea of guilty of the attempted murder of his eight-year-old son. Following a domestic dispute with his wife and upon the wife returning home with two policemen, the offender assaulted his son and stabbed him several times with a kitchen knife. He intended to kill himself and attempted to kill his son out of love, rather than hatred. The Court endorsed the sentencing judge's statement that:

"It is difficult to conceive a more horrific crime. The assault took place in the sanctity of the child's own home and at the hands of the person who is, above all others, charged by nature and the law with his protection."

73. The sentencing judge imposed a sentence of ten years' imprisonment with a non-parole period of six years on the charge of attempted murder. This was found to be manifestly excessive after considering the explanation of the irrationally directed love during a total breakdown in appropriate mental functioning and considering also the emotional stresses upon the offender, the fact that the offence was unpremeditated, the offender's clear remorse and most significantly that the offender would have to serve his whole time in prison in some form of protective custody. The applicant was not considered to be suffering from a psychosis or mental illness.

76. I accept, with respect, all that was said in the judgments in Kasulaitis and Adajian and in particular, that a period of ten years is certainly not to be treated as the ceiling in practice for the crime of attempted murder. But I should add that in my view a case in which the accused's actions are caused by a mental illness would not usually be properly described as among the worst examples of this very serious offence.

79. In this case, the judge said that what the applicant intended to do was, "truly terrible" and that this was a most grievous case of attempted murder, views with which no-one could disagree. Nor, as his Honour also said, could the applicant's deep depression be any justification for his criminal actions against those he loved.

82. During his reasons for sentence, the judge said that an exacerbating element was that the victim still does not know what occurred while she was asleep, which added to the seriousness of the offence. His Honour presumably meant no more than that, since Ms Saunders was unconscious at the time, she did not know whether any form of sexual molestation had then occurred. I certainly accept that the judge was entitled to give great weight to the effect of the applicant's actions upon Ms Saunders and her deep fear and distress arising from the realisation of what might have happened to her. No sentencing error was involved on this view. I think also that the judge must have treated general deterrence as a factor of significance, having regard to the comment his Honour made shortly before passing sentence that,

"partners and children are entitled to the full protection of the law. Whether the offence is through violence or whether the offence is through depression, they are entitled to the protection of the law."

86. I would therefore reject ground 4 of the application for the reasons I have already given.

89. As to ground 3, his Honour was plainly entitled to place considerable weight on specific deterrence. The words of defence counsel during the plea, on instructions, provided a clear basis for the inclusion of specific deterrence as a factor. Nothing in his Honour's reasons suggests that this factor was overweighted in the construction of the sentence imposed.

92. As to ground 2, his Honour plainly gave substantial weight to the applicant's mental illness. Indeed, I am inclined to accept the submission of Mr Ryan, who appeared in this Court for the Crown, that the applicant had the benefit of benevolent findings on the issue of his depression. His Honour plainly gave substantial weight to the applicant's mental illness and the comment that this condition made it inappropriate to place emphasis upon general deterrence, did at least ample justice to the applicant's submissions at the plea.

95. As to ground 1, Mr Lindner for the applicant submitted forcefully to us that the applicant's attempt to suffocate or strangle Ms Saunders fell a deal short of killing her, because of his own desistance from the attempt. Accordingly, so the submission ran, his actions were less legally and morally culpable because it was he who abandoned the planned killing. He had not used a gun or knife in the process and it was not an attempt in which the intention to commit murder continued unabated, being deflected only by the chance intervention of some third party or other supervening circumstance. The applicant had, Mr Lindner said, attempted to undo the damage he had done and his remorse was whole-hearted, immediate and genuine. Accordingly, this was an offence of lesser culpability than many others before this Court.

98. Mr Ryan's response was that but for one or other of the victims stirring from their state of unconsciousness, the applicant's plans for them would have been brought to completion. When Ms Saunders began to regain consciousness, the applicant continued in his attempt to kill her, first by attempting to suffocate, then to strangle her. Mr Ryan put it that this was not a voluntary cessation of the attempt, rather the victim's desire for life overcame the applicant's desire to kill her. The applicant's actions were carefully planned and premeditated and by stealth he sought to overcome the will of his victims, who were of course his former partner and his daughter.

101. On the evidence before the sentencing judge I think Mr Ryan's submissions should be accepted. On that basis it seems to me that the sentence imposed was plainly within range. Indeed the applicant is fortunate that a higher sentence was not imposed on count 2 and, in all the circumstances, some cumulation ordered. In my view each ground of the application fails and I would dismiss it accordingly.

105. For the reasons given by Charles J.A., I agree that the application should fail.

109. For some time I was troubled by the learned sentencing judge's statement that an exacerbating element was that Ms Saunders did not know what occurred while she was asleep and that added to the seriousness of the offence. From one perspective, the fact that Ms Saunders was intended to be unaware of the crime committed against her alleviated the seriousness of what the applicant intended. There is, however, another perspective from which it may be said to have aggravated the seriousness of the offence. That other perspective becomes apparent from the depositional material and from a psychological report which explained that the realisation that she could not know what had happened whilst she was sedated had increased the victim's distress. On reflection, therefore, I think it would be wrong to infer from his Honour's statement that he made an unbalanced assessment of the significance of the applicant's attempts to render his victims unconscious, nor was that the way in which counsel argued ground 4. R v. Tsiaras was a case of severe psychiatric illness. That needs to be borne in mind in applying the checklist at p.400 of the report. In the present case, general deterrence was not wholly excluded, albeit that its significance was diminished. That is what his Honour meant, and said, at paragraph 20 of the sentencing remarks. I respectfully agree with what he said about specific deterrence.

112. For these reasons and for those given by Charles J.A. I, too, would dismiss the application.

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