R v Kelsall

Supreme Court of NSW|2015-04-29|Before: Hulme J, Mr P

Solicitors: Solicitor for Public Prosecutions Breton Legal Pty Limited File Number(s): 2013/302108

Judgment

HIS HONOUR: Daniel Jack Kelsall ("the offender") is to be sentenced for the indecent assault and murder of Mr Morgan Huxley at Neutral Bay on 8 September 2013. He was found guilty of these offences by a jury on 18 March 2015.
Murder is a crime for which the maximum penalty is imprisonment for life. There is also prescribed for it (in the circumstances of this case) a standard non-parole period of 20 years. Indecent assault is an offence carrying a maximum penalty of imprisonment for 5 years.

Personal history of the offender

I have before me reports by psychiatrists, Dr Olav Nielssen and Dr Adam Martin, and psychologists, Dr Abdul Saad and Dr Susan Pulman. The offender did not give evidence in the sentencing proceedings.
The offender was aged 20 at the time of the offences. He was born in Wellington, New Zealand, in February 1993 and was adopted at birth. His parents adopted two other children; he has an 18 year old sister and a 27 year old brother. He was brought up in what appears to have been a loving and supportive family environment and he remains close to his parents.
He reported difficulties at school but these seem to have been confined to him being separated from his friends when he, or they, transferred to other classes or schools. His secondary education ended when the Montessori school he was attending closed down. He attempted to complete his education by correspondence but this was unsuccessful, apparently because he had concentration issues and was easily distracted.
At age 17 he enrolled in a hospitality course at a college, undertaking a 12 month full-time Food Preparation and Culinary Arts Certificate before commencing an apprenticeship as a chef. Half way through the year his parents and sister moved to Sydney in order for his father to establish a business. His brother had moved out of home so he went to live with a relative of a family friend. He has said that he found this period of separation from his parents to be difficult and he became depressed.
He joined his family in Sydney after the completion of his course. He attempted to pursue a career as a chef but found he was unsuitable because he had difficulties with measurements and could not understand the subtleties of things such as "a pinch of salt". Ultimately he took the position as a kitchen hand / cleaner at the Sydney Cooking School.
The offender told Dr Nielssen that he became aware of his homosexual orientation in early high school however he did not become sexually active until his late teenage years. He had never had a long term relationship. He said that none of his sexual encounters had resulted in any kind of danger or violence.
The offender described himself to the psychiatrists as a "nerd" or a "geek". (His father agreed with the description in his evidence in the trial. He also agreed that his son was socially awkward and was interested more in intellectual than physical pursuits such as sports.) The offender said he liked role-playing games, competitive card games, Pokémon and video games. He also enjoyed reading fantasy and science fiction novels and playing chess.

Mental health history

Dr Nielssen reviewed records of a general practitioner and psychiatrist from the Petone Medical Centre in Lower Hutt, New Zealand who the offender had consulted in late 2010. The general practitioner's notes included discussion of sleep disturbance, thoughts of suicide and "also states has enjoyed inflicting pain on others in past". The offender was prescribed an antidepressant and an urgent referral was made to a mental health team.
The psychiatrist wrote that he was inclined to a diagnosis of bipolar disorder on the basis of a history of symptoms of depression and an elevated mood which had been triggered by taking the antidepressant. The psychiatrist prescribed a low dose of Seroquel (an antipsychotic and mood stabilizing medication). When he was reviewed on his second appointment it was noted that this had been helpful. When he was last reviewed in early December 2010 he was discharged from crisis team care and provided with three months' supply of the medication.
After moving to Sydney at the end of 2010 the offender continued to take Seroquel and increased the dose on medical advice.
In September 2011 his general practitioner referred him to a psychiatrist who he saw only once. That doctor told him that he did not have bipolar but was "just depressed". He was advised to continue on the Seroquel if it provided relief for his symptoms.
When he saw his GP in February 2012 to obtain another prescription for Seroquel he was told that it was not available for him under the PBS for a person in his situation. He weaned off that drug over a month and was advised to see a psychiatrist.
The offender saw Dr Susan Allman, general practitioner, on 15 May 2012. Her notes included the possibility that the offender might have ADHD (attention deficit hyperactivity disorder) and "mild Asperger's with co-morbid depression". She also recorded in her notes of the consultation the account of the offender having experienced intrusive thoughts about killing people with a knife on his way home at night.
Dr Matthew Boulton, psychiatrist at the Mindcare Centre at Broadway, saw the offender upon referral from Dr Allman on 6 June 2012. His notes included a record of the offender again saying that he had experienced thoughts of killing someone. He told Dr Boulton, "it sounds psychopathic" and that he experienced these thoughts when his depression had been at its worst; it had helped that he was on antidepressants prescribed over the past month by Dr Allman.
Dr Boulton referred the offender to Dr Abdul Saad, psychologist. He saw Dr Saad at approximately monthly intervals with the last consultation on 17 September 2013.
Dr Saad said that from his first session with the offender on 19 June 2012 he found him somewhat difficult to engage. He thought that the offender was someone for whom anger was part of his internal psychic world; a sort of defence mechanism to keep him from feeling his emotions, but that it did not cross over into real life and pose a threat to himself or others.
Dr Saad said that during the course of ten treatment sessions the offender could be difficult to engage. Discussions with him provided little opportunity to penetrate deeper into his psychic life. He did, however, deny any significant feelings of anxiety or depression and there was no evidence of thoughts of self harm or homicidal ideas.
Based on the offender's presentation during the course of the treatment sessions, his self-reporting and background history, Dr Saad assessed his risk status, to himself and others, as low. However, after being informed that the offender had been charged with Mr Huxley's murder, Dr Saad said that if the charge was proved, then "considerable weight would be added to the view that Mr Kelsall exhibits significant callous-unemotional traits." He added that "such traits are not an integral aspect of either an ADHD or Autism Spectrum Disorder".
Dr Nielssen made three diagnoses: possible bipolar disorder; possible autism spectrum disorder; and possible emerging psychotic illness.
Dr Nielssen explained that the possible bipolar disorder diagnosis was made on the basis of a history of periods of depression and of elevated mood triggered by taking antidepressant medication. There was also the history of some improvement after treatment with sedating antipsychotic medication indicated for bipolar disorder, and aspects of the offender's presentation at the time of his initial interview in October 2013 when Dr Nielssen thought the offender had an abnormally elevated mood considering his then present circumstances.
The diagnosis of possible autism spectrum disorder was considered by Dr Nielssen on the basis of the offender's history of problems with learning and social adjustment in his childhood and adolescence; the reported diagnosis of his treating psychologist and at least two psychiatrists; and aspects of his presentation during Dr Nielssen's three interviews when the offender's communication and emotional responses seemed incongruous to his situation.
At this point of his report, Dr Nielssen noted that the offender's presentation was unusual in that he was outwardly cheerful and polite and fluent in his communication and did not have the typical feature of autism (a lack of interest in social contact). The doctor noted, however, that he agreed with the impressions of other clinicians that the offender's condition might be best described as autism spectrum disorder, which can be accompanied by a reduced capacity for empathy.
Dr Nielssen explained that the diagnosis of a possible emerging psychotic illness was also considered on the basis of the offender's history of adoption; of learning problems in childhood; the reported assessment by an early psychosis service in New Zealand; the history of mood and neurological symptoms of a type that often precede the emergence of psychosis; and the offender's "odd affect" which Dr Nielssen considered could also indicate the underlying neuropathy of a schizophrenic illness.
Dr Nielssen said the offender did not report symptoms of schizophrenia around the time of the offence or in the year since his arrest and so did not think that he had a psychotic illness such as schizophrenia.
Dr Martin considered that the offender could "probably be diagnosed with having Autistic Spectrum Disorder according to DSM-5 criteria". He explained that this would be referred to as Asperger's Syndrome in DSM-IV terminology, a less severe autistic disorder. Like Dr Nielssen, he found no evidence suggestive of a major mental illness such as schizophrenia or bipolar disorder.
I found Dr Pulman's report particularly thorough and helpful. Refreshingly, she questioned the history she was provided by the offender and indicated where it conflicted with other material, such as the histories set out in the reports of other doctors or the evidence in the trial.
Dr Pulman administered a number of psychometric tests which yielded some interesting results. A comprehensive intellectual assessment indicated that the offender's overall level of intellectual functioning fell within the "Superior range"; meaning that his functioning is at a level equal to or better than 95 per cent of the normal population.
In undertaking the vocabulary subtest of this assessment, when asked to provide the meaning of the word "terminate", he responded immediately, "to kill". She queried him about this because other individuals typically responded with definitions "to end, to finish, to stop" and he replied, "to completely extinguish the life source". Dr Pulman reported that "this was an atypical response, even within the incarcerated population with a history of antisocial and aggressive behaviour".
Testing of the offender's attention span, ability to concentrate and to process information resulted in High Average and Superior range scores. There was no evidence of any difficulties with attention, a characteristic of individuals with ADHD.
No deficit was found in the offender's ability to learn and remember; the tests for these resulting in High Average range scores.
Testing of the offender's ability to deal with new and unusual tasks that require a person to reason, problem solve, check that they are proceeding correctly and modify their behaviour if necessary returned an overall score in the High Average range. One particular task within this test resulted in a Superior range score at the 97th percentile, suggesting accurate measurement, planning and organisational ability.
Finally, a test to measure current mood and level of psychological functioning did not reveal any symptoms of depression, anxiety or stress outside of normal limits. That is interesting, given that the testing was carried out only a little more than a week before the offender was due to appear for sentencing on a charge of murder.
Dr Pulman referred to the offender's reported history of differential diagnoses including depression, ADHD, autism, and Asperger's. But as she assessed him: "He was articulate, fluent in his conversation, and there was no evidence of any autistic features or symptoms consistent with ADHD or depression. On the contrary, his attention and concentration abilities fell in the Superior range and his mood upbeat, insofar as he appeared to be enjoying the attention and challenge the interview and testing provided."
Dr Pulman noted that the offender demonstrated obsessive traits and restricted or idiosyncratic behaviours but observed as well that the latter are known to occur in more gifted individuals.
She raised doubt about the possible diagnosis of autism and suggested a possible personality disorder with psychopathic traits: "Whilst he demonstrates an understanding of empathy from a cognitive perspective, he appears to have limited emotional resonance or connection with other's emotional experiences. He is detached and composed in his behaviours and, although may appear similar to autistic type behaviours, it is in my professional opinion more consistent with a personality disorder characterised by psychopathic traits. Although there is no prior antisocial history that the writer is aware of, he has described feelings of rage originating in childhood. He reported to medical practitioners experiencing thoughts of harming others, although he reported no intention of acting [on] these thoughts."

Evidence concerning prospects of rehabilitation and likelihood of re-offending

The first point to note in relation to the offender's prospects of rehabilitation is that he is not at all remorseful. He continues to deny his guilt (and he is not to be punished for that). There is nothing to indicate that he has any empathy in relation to the death of Mr Huxley or for the plight of his family, colleagues and friends.
Dr Nielssen found it impossible to provide any meaningful prediction about the question of future offending or rehabilitation. He noted that the offender was of normal intelligence and would appear to be capable of participating in counselling and other rehabilitation programs. There was no pattern of antisocial conduct prior to the offence and no history of alcohol or substance abuse. Dr Nielssen said the main area of concern that would warrant further attention in counselling before the offender's eventual release was his reported account of having experienced fantasies of killing a stranger with a knife. Dr Nielssen considered that it would be expected that the offender complete the Violence Prevention Program, or that a similar program of intensive counselling should occur, before consideration of parole release.
Dr Martin was also similarly guarded about making any prediction about future offending. One of his concerns was that he suspected that "there are many unknown issues which are yet to be disclosed around the offending" and that "it is impossible to know exactly how or why the murder occurred". He did not think the issue of autistic tendencies adequately explained the violence, noting that the overwhelming majority of people with autism do not violently offend and then lie about their whereabouts to the police as the offender had done. Dr Martin wrote: "In conclusion, my view is that, at this stage, it is not easy to understand the motivation for the murder of Mr Huxley. It is not clear to me, from a psychiatric perspective why or how the murder took place. He certainly presents as emotionally detached, and this makes it hard to know his true mindset, either at the time, or now. At this stage what I think can be said is that the murder did not occur in the context of psychosis or major sustained mood disturbance. The violence did not appear to be driven by delusions, hallucinations, or disorganised behaviour suggestive of a mental illness such as schizophrenia. I do not think that psychiatric medication is likely to have been a material factor influencing the violent behaviour."
It was Dr Martin's opinion that an assessment of future dangerousness could only be made on the basis of a "longitudinal assessment of the psychological issues". He noted that there were limits on making such an assessment on the basis of a single interview and a review of various documents. He added: "At this stage, it is not possible to offer the opinion that repeat offending will not occur, or that the risk can be reduced significantly with psychological treatment. Hopefully, in the future more information will be forthcoming such that issues such as motivation or other psychological factors might become more apparent and understandable."
Dr Pulman was even more pessimistic about the offender's prospects of further offending: "Given Mr Kelsall is denying any responsibility for the murder for which he has been convicted and continues to maintain his innocence, the motivation for the offence is difficult to determine. Without any remorse and with the motive for the crime remaining unknown, it is likely that Mr Kelsall will require ongoing review during his period of incarceration. Through regular and close monitoring it is likely that a more defined diagnosis will emerge as to whether he has a mood disorder or an emerging mental illness such as schizophrenia or a personality disorder. In the interim, the writer is unable to comment as to whether his risk of reoffending is likely to be reduced by psychological treatment and psychopharmotherapy. The assessment of future dangerousness will require longitudinal analysis of his behaviour and psychological condition. However, given he is young man of superior intelligence with a known history of deceit and emotional detachment, it is my opinion that he remains dangerous and accordingly the risk of future dangerousness remains high."

Seriousness of the offence

I have mentioned that the offender continues to deny his guilt. Accordingly, he has provided no explanation for doing what the jury were satisfied beyond reasonable doubt he did.
One thing that is clearly established is that it was not an unprecedented thought to do what he did - he had thought of following someone home after work one night and killing them with a knife before - although the selection of Mr Huxley as a victim was probably quite random.
I am not satisfied that the offender made the selection of Mr Huxley as a potential victim before or whilst he was in the hotel but I am satisfied that the thought occurred to him at least by the time Mr Huxley emerged from the hotel and the decision was taken to follow him.
I am not satisfied that the offender had formed a firm intention to kill as he followed Mr Huxley to his home. He would have had no idea where Mr Huxley was going and whether there would be any opportunity to attack him. But I am satisfied that he followed him with a view to seeing what opportunity might arise.
I am satisfied that the offender was armed with a knife. I reject as fanciful that the offender entered the deceased's unit unarmed, either in the hope of finding a weapon or just happening upon one by chance.
I am satisfied that he entered the home for the sole purpose of killing Mr Huxley if he could. No other potential explanation presents as a reasonable possibility. I reject completely his account at trial that he was invited into the unit and then up to the bedroom in order to engage in consensual homosexual activity. The evidence is entirely contrary to the notion that Mr Huxley would have been at all interested in such activity. As to the indecent assault, this is something that was entirely opportunistic. I reject the suggestion that it played any part in the offender's thinking when he entered the unit.
The killing is rendered more serious by the fact that it was committed by an intruder into the victim's home and while the victim was incapacitated (by sleep, intoxication or both).
This is a most chilling case of murder. Whether the offender killed "for the thrill of it", an expression he used when speaking to Dr Boulton the previous year, or as a result of a fantasy or obsession I am unable to say. What can be said is that it was utterly senseless and needless. And, despite the psychiatrists being unable to fathom a reason for it, it must have been the doing of a very disturbed individual. I am satisfied that the killing of Mr Huxley was done for no reason other than to serve some irrational purpose known only to the offender.

A life sentence?

I have carefully considered the Crown's submission that the murder of Mr Huxley is in the worst case category. Consideration of imposing a sentence of imprisonment for the term of the offender's natural life arises if I am satisfied that the level of his culpability is so extreme that the community interest in the combined effect of the need for retribution, punishment, community protection and deterrence can only be met through the imposition of such a sentence.
I have been greatly assisted by the reminder of the case law relating to this issue in the submissions of senior counsel for the Crown. One observation that may be made is that the absence of clarity as to the offender's motive is not a bar to finding that a case is in the worst case category; the very circumstances of the killing itself may be enough. And callousness and absence of remorse may be factors that tend in favour of imposition of a life sentence.
Community protection and a concern about future dangerousness are problematic given the inability of the psychiatrists to express any firm view. But the Crown is right to point out that the law requires some assessment to be made where the evidence permits. In this case, the absence of a history of violence points in one direction whilst the circumstances of the crime itself point in the other. There is no conclusive psychiatric explanation for the offender's heinous conduct. There is no identifiable diagnosis of a psychiatric condition that is amenable to treatment.
Unlike other findings I have made that are adverse to the offender, the need for protection of the community in the future is not a subject upon which a finding has to be made to the standard of beyond reasonable doubt. In my view, there is enough about the circumstances attending the killing of Mr Huxley, considered in the light of the thoughts the offender conveyed to doctors more than a year before, together with the assessment of the experts, particularly Dr Pulman, to give rise to very real concern. But it also has to be borne in mind that a sentence cannot be increased from what is proportionate to the gravity of the crime for this reason.
I have earnestly considered the Crown's submissions about this case falling into the worst category, or that the community interest can only be served by the imposition of a life sentence. There are quite a number of features pointing in that direction. In the end, however, I do not see the case as being at that extreme.

Other matters relevant to the assessment of sentence

The offender is young: 20 at the time of the killing and now 22. I do not get the sense that his crimes were in any way the product of immaturity. Nevertheless the fact is that he is not long into his adulthood and that must be taken into account as part of his overall subjective case.
A particular matter in his favour is that he has no previous convictions and must be regarded as a person of otherwise good character.
He is not remorseful and his prospects of rehabilitation are, at least, questionable.
His mental health issues are not of such a type and significance, in my assessment, that call for any amelioration of sentence.
The offender has been in custody since his arrest on 8 October 2013 and so his sentence will be backdated until then.
I propose to impose a fixed term sentence in respect of the indecent assault offence. It is necessary to accumulate the sentence for the murder upon it by a slight degree (as submitted by the Crown and not opposed by the offender) so there would be no utility in setting a non-parole period.
Mr Watson submitted that I should find that there are special circumstances warranting a reduction of the proportion of the sentence for the murder represented by the non-parole period. I have considered the matters he raised in support of the submission but have concluded that the parole period that will be allowed if the sentence is in the usual proportions will be sufficient. There is the additional consideration that it is necessary to set the non-parole period at a level that appropriately reflects all relevant matters, including the objective seriousness of the offence.

Family member victim impact statements

Statements about the impact this terrible murder has had upon members of Mr Huxley's family were read by or on behalf of Allan, Deirdre, Tiffany and Oliver Huxley.
The Crown has submitted that the harmful impact of Mr Huxley's death upon the members of his family should be taken into account as harm done to the community. There was no submission to the contrary.
As I have observed in other cases, harm to the community is always caused when an innocent life is taken. The form in which the harm materialises may vary but all human life is recognised as equally precious. That is why the crime of murder is regarded as the most serious of criminal offences and attracts such an extreme maximum penalty and a substantial standard non-parole period.
The harm in this case is demonstrated by what has been written by Mr Huxley's mother, father, sister and brother. I regret that I have not been able to find words capable of adequately describing the level of their grief, anguish and suffering. But they should be assured that they have my most sincere sympathy.

Sentence

Convicted. Indecent assault: sentenced to imprisonment for a period of 1 year with effect from 8 October 2013. Murder: sentenced to imprisonment comprising a non-parole period of 30 years and a balance of the term of the sentence of 10 years. The sentence is to date from 8 January 2014. The non-parole period will expire on 7 January 2044 and the total term will expire on 7 January 2054. The overall sentence is one of 40 years 3 months.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2015

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