R v McKellar

Judgment 1On 24 February 2014, at the end of a special hearing conducted in Bathurst, I found that, on the limited evidence available, Shane Thomas McKellar (to whom I shall refer as "the offender") committed two extremely serious offences: R v McKellar (No 4) [2014] NSWSC 107. The first offence was an armed robbery with the infliction of really serious physical injury upon the victim. The second was murder. In each case, the offence was committed on 21 May 2011 in the township of Bourke. And in each case the victim was Bruce Wentworth Delany, to whom I shall usually refer in these remarks as "the deceased". 2The maximum penalty for that form of aggravated robbery is imprisonment for 25 years. The maximum penalty for murder is imprisonment for life without possibility of parole. I regard each of those maximum penalties as important guideposts that inform the exercise of my discretion today. Review of legal context 3As a result of those verdicts, it now falls to me to impose a limiting term with regard to each of those offences. It is appropriate at this stage to explain briefly the legal process in which I am engaged. 4Some time ago, the offender was judged to be unfit to stand trial. That was due to his mental condition, a topic that I shall discuss in more detail later in these remarks. The result was that, rather than standing his trial by jury with regard to the two offences, a special hearing by judge alone was conducted before me. The purpose of that hearing was to determine whether, in truth, the offender committed those crimes, rather than to determine his guilt of them in the usual way. 5Those verdicts having been returned by me, the law requires me to indicate whether, if the special hearing had been a normal trial, I would have imposed a sentence of imprisonment: s 23(1)(a) of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). I indicate immediately that that is unquestionably the case with regard to both offences. 6Having come to that view, I am required to nominate a term with regard to each offence, that being my "best estimate" of the head sentence that I would have considered appropriate if the special hearing had been a normal trial that had ended with verdicts of guilty: s 23(1)(b) of the Act. After I have nominated the limiting terms, I am required to refer the offender to the Mental Health Review Tribunal ("the Tribunal"), and make such orders about the custody of the offender as I consider appropriate: s 24 of the Act. It is not my role to impose a non-parole period, or anything analogous to it. 7As a result of the imposition of those limiting terms, the offender will become a "forensic patient": s 42 of the Act. The period of the longest limiting term is the maximum period during which the offender may be detained as a result of his commission of these offences. The Tribunal, in the years ahead, may release the offender before the expiry of the limiting terms that I set. However, it must not do so unless it is satisfied, on the evidence before it, not only that less restrictive care which is safe and effective is appropriate and reasonably available, but also that the safety of the offender or any member of the public will not be seriously endangered by his release: s 43 of the Act. 8It is in that context that I turn to consider the facts of the matter. In accordance with well-established principle, I need to be satisfied of any aggravating feature that I take into account against the offender beyond reasonable doubt. I need only be satisfied of a mitigating feature in his favour on the balance of probabilities. It may be that some facts will be unable to be determined with clarity by me. Aspects of the offending 9My reasons for verdict of 24 February 2014 provided an extensive review of the evidence with regard to the commission of the offences. For that reason, I shall not traverse the facts again at that level of detail. It suffices to say that, in the early hours of the morning of Saturday 21 May 2011, the offender was roaming the streets of Bourke with a young female companion. They were in search of prohibited drugs. Some months before, the offender had remarked to that young lady that he wished to break into the home of the deceased. The deceased, aged 81 years, was living alone in his home at 16 Becker Street Bourke. He was known to the offender because the aunt of the female companion of the offender lived next door to the deceased, and the offender had been to the aunt's home on many occasions. 10The offender travelled on foot to the home of the aunt. He was alone. There he armed himself with a knife, a golf club, and a pair of scissors. He also disguised himself by placing a mask that had a wig attached to it over his head. All of those items were available to him in those premises. He did those things because he had decided to commit an armed robbery upon the deceased. His motive was to obtain cash that he could use to purchase prohibited drugs. It is noteworthy that the offender took steps not only to disguise himself but also to ensure that he did not leave body samples such as fingerprints or DNA at the scene of the crime. Those steps included wearing gloves on both hands, and wrapping a piece of cloth around the handle of the knife and around the handles of the scissors. 11The deceased was at home alone that morning. The offender broke in and demanded money. The deceased complied and gave the offender a $50 note. The offender replied "I don't care, I'm still going to kill you". A struggle ensued, during which the offender inflicted a cut to the area of the right ear of the deceased, an injury to his left ear, and a small wound to the lower part of the breastbone of the deceased. There was at least one wound inflicted to a hand of the deceased that was in the nature of a defensive injury. Most importantly, the offender stabbed the deceased three times to the abdomen. Of those three wounds, the most serious was approximately 12 cm deep. No doubt the infliction of those wounds was a terrifying and exceptionally painful ordeal for the deceased. 12After those acts of violence, the deceased was able to make his way to the home of a neighbour. Thereafter he received a great deal of medical treatment. Tragically, Bruce Delany passed away in hospital on Monday 23 May 2011. 13The armed robbery with infliction of really serious physical injury was made out by way of the behaviour of the offender that I described a moment ago. The murder was made out when the deceased died as a result of that conduct. 14After stabbing the deceased repeatedly, the offender fled. In fact, the $50 note that was the fruit of the robbery was left behind in the backyard of the deceased. As he escaped, the offender was seen by two young boys who were in the vicinity. The offender noticed one of the boys looking at him, and said to him "Don't look". 15The offender returned to the home of the aunt next door. He took the time to secrete the gloves and the knife inside wall cavities in those premises. He then ran to another home in Bourke. 16There he asked an acquaintance to drive him to yet another home. Later, the offender persuaded another person to drive him from Bourke to Narromine. Whilst being driven towards that township, the offender said to his companions "I stole all the money and I stabbed the old man, I'm in big shit". At the same time he requested the two of them to provide false evidence for him. The offender engaged in all of that behaviour with the intention of evading detection and punishment for what he had done. 17The offender was arrested in Narromine that evening. He engaged in a recorded interview with police in which he put forward various preposterous explanations for a number of pieces of incriminating evidence. He has been in custody ever since. 18None of those matters were in dispute at the special hearing. Nor were they in dispute in the subsequent proceedings. One matter remains in dispute and requires determination by me. 19In my reasons for verdict at the end of the special hearing, I indicated that I was satisfied beyond reasonable doubt that at the time of the stabbing the offender intended, at the least, to inflict really serious physical injury to the deceased. I now need to determine whether I am satisfied that, above and beyond that state of mind, the offender intended to kill the deceased. As I have said, before that could be used against the offender in these proceedings, I would need to be satisfied of it beyond reasonable doubt. 20The Crown invited my attention to the words said by the offender, and submitted that they are strongly suggestive of an intention to kill. The Crown also submitted that those words need to be seen in context; namely, they were said by a man who had armed himself with a knife in order to commit an offence against an elderly victim, and the speaker was holding the knife at the time. 21Senior counsel for the offender invited my attention to the evidence that the offender was suffering from a serious mental illness at the time, a proposition that is not in dispute. She submitted that his mental illness would have interfered to some degree with the offender's reflection upon, and appreciation of, the consequences of his actions. She also submitted that statements of intention to kill can sometimes be made without being meant literally, especially in situations of heightened emotions. Finally, she submitted that it is clear from all of the evidence that the wounds, including the fatal wounds, were inflicted in the course of a heated struggle, rather than in a cold-blooded and precisely executed series of acts. 22I have reflected on this question at some length. Ultimately, I have come to the view that, taking into account all of the evidence, and in particular the mental illness of the offender, although I strongly suspect that the offender intended to kill the deceased, I am not satisfied of it beyond reasonable doubt. It follows that the limiting term for murder will be imposed on the basis that the offender repeatedly stabbed the deceased, and at that time the offender intended to inflict really serious physical injury upon him. 23I turn to assess the objective seriousness of such behaviour. An elderly man was robbed in his own home. He was repeatedly stabbed to the abdomen and died as a result. The motive for the robbery was undoubtedly a selfish desire to obtain a paltry sum of money for prohibited drugs. The crime was preceded not only by a degree of forethought, but also planning, the gathering of weapons, and the taking of steps to evade detection. Afterwards steps were taken to conceal the instruments of crime, to flee the vicinity, and to suborn false evidence. Meanwhile the deceased, gravely wounded, was heartlessly left to die by the offender as he made good his escape. 24Objectively, this aggravated armed robbery and murder cannot be assessed as anything other than extremely grave. Aspects of the offender 25Turning to subjective matters, the offender is an Aboriginal man now aged 35 years. At the time of the offences he was aged 32. It seems that he has lived in the Bourke district all his life. Although it was submitted that his upbringing and background have been deprived ones, there was scant evidence in support of that proposition. It was chiefly based on the contents of some remarks on sentence of his Honour Judge Norrish QC from 2008. Having said that, the Crown did not dispute that I should approach the matter on the basis that the offender has led a life completely free from privilege and indulgence. 26The offender comes from a family of four sisters and one brother. At school he was a below average student, he exhibited behavioural problems, and left in year eight. He has enjoyed few opportunities to work due to his limited education and low intelligence, a topic to which I shall also return. He has four children who would now be aged between 15 and 16 years. By the time of the offences he had become isolated from his family. That was due to his behaviour as a result of his mental condition, no doubt exacerbated by his long-standing abuse of prohibited drugs. In light of the joint position of the parties, I proceed on the basis that this man has led a life that has been under-privileged; indeed, deprived. 27At the special hearing, the offender was not, of course, able to plead guilty to the offences. But his counsel did not seek to persuade me that the evidence did not establish each offence. The only matter that was in dispute was whether or not the applicant was guilty of constructive murder or murder based upon an intention to inflict (at least) really serious physical harm. As I have said, I resolved that question at the end of the special hearing by finding the latter proven beyond reasonable doubt. 28In the proceedings after verdict the parties relied on two reports: a report of Dr Allnutt, forensic psychiatrist, of 3 April 2014, and the latest report of the Tribunal, dated 26 March 2014. 29In the report of Dr Allnutt it is said that the offender, although claiming to have no memory of the offences, has recently expressed regret for what he has done. That is in the context, of course, of the offender having sought to escape punishment for his crimes very shortly after he committed them, and there being no evidence before me of the slightest expression of contrition before the one that was recently made to the psychiatrist. 30Whilst I have borne in mind the restriction contained in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I consider that I should proceed on the basis that the offender has come to the position of having some sense of the enormity of what he has done, and having some degree of regret for it. I do not consider that the position can be stated more highly than that. 31It is not disputed between the parties that the level of intellectual functioning of the offender is quite low. The latest report of the Tribunal makes reference to the "intellectual impairment" and "reduced intellectual capacity" of the offender. The Annexure to the latest report states that the offender is below average intelligence, with previous testing indicating that his full scale IQ falls in the "mildly retarded" range. The "limited intellectual capacity" of the offender also receives passing mention in the report of Dr Allnutt. Such an assessment is certainly consistent with his appearance and demeanour in the recorded interview with police at Narromine, which was played before me in the special hearing. 32Having said that, his level of intellectual functioning did not stop the offender, in contrast to many other offenders, from taking quite thoughtful precautions against leaving scientific evidence at the scene of the crimes that he proceeded to commit. 33In short, my limiting terms reflect the reduced level of intellectual functioning of the offender to a small degree. 34By far the most important subjective feature is a chronic mental illness from which the offender suffers. I am satisfied on the balance of probabilities that the offender has suffered from a serious mental illness for many years; that he was suffering from it at the time of the offences; that he was untreated at the time; that he continues to suffer from it; and that he will do so for the rest of his life. Again, the Crown Prosecutor did not place those propositions in dispute. 35Based on the combined effect of the reports of Dr Allnutt and the Tribunal, I am satisfied that the offender suffers from a chronic psychotic illness in the form of schizophrenia. It manifests itself by way of, amongst other things, auditory hallucinations, paranoid delusions and ideas of reference such as that a television is speaking to him personally. At the time of the offences, as I have said, the offender was living in the community and was neither taking medication nor receiving any other form of psychiatric help. And, as I have said, no doubt his condition was made markedly worse by his ingestion of prohibited drugs. 36I accept that the ongoing mental illness of the offender makes him a less appropriate vehicle for the expression of general deterrence than he would otherwise have been if he were completely mentally well. I consider that personal deterrence should play a somewhat reduced role as well. My limiting terms will reflect that fact. 37On the other hand, it is to be recalled that senior counsel for the offender did not submit that the illness of the offender was directly linked to the commission of the offences. It is not the case, for example, that command hallucinations ordered the offender to rob and stab the deceased. Nor is it the case that the offender possessed some delusional belief that the deceased was seeking to harm him, or anything of that nature. The most that can be said is that the mental illness of the offender disinhibited him to some degree, and also led him not to fully appreciate and reflect upon the consequences of his actions. Again, it is to be borne in mind in considering this factor that he took steps before and after the offending in order to avoid detection and punishment. 38In short, whilst I accept that the roles of general and personal deterrence are reduced in this case, those factors can by no means be disregarded entirely. 39Turning to the criminal record of the offender, it began in 1991 when he was aged 13. On that occasion he was dealt with in the Bourke Children's Court for an offence of breaking, entering and stealing. Thereafter, he has committed a number of offences that were dealt with by way of bonds, fines, and short periods of imprisonment. It is noteworthy that the offender has repeatedly committed offences of violence, and been imprisoned for them. Having said that, there is force in the submission of his counsel that, save for one matter, none of the matters in his criminal past were judged to be of sufficient seriousness for them to be dealt with other than in the Local Court. 40The one exception is an offence of armed robbery with wounding. It was committed in May 2006, and the facts that were placed before Judge Norrish on sentence were tendered before me in these proceedings. To state matters simply, whilst armed with a metal star picket, the offender entered a hotel in Bourke. He demanded that a cash register be opened by the proprietor. When that gentleman replied that it could not be opened, the offender used his weapon not only to strike the surface of the bar of the hotel, but also to strike the proprietor on the right hand, causing wounds. Thereafter he swung the weapon again at the victim, striking him on the left shoulder. The offender eventually obtained a different cash register from an adjacent bottleshop and fled with it. 41What is immediately noteworthy is that the victim in that matter was aged 85 years. His 71-year-old wife was also present, as were two elderly male patrons. As a result of those facts, I enquired of the learned Crown Prosecutor whether it was his submission that I should be satisfied beyond reasonable doubt that the offender has demonstrated a pattern of targeting victims who are vulnerable because of their advanced age. In light of the fact that only two such incidents are apparent, the Crown Prosecutor did not make any such submission, and accordingly I do not make any such finding. 42In July 2008, Judge Norrish sentenced the offender for that offence. His Honour took into account that, despite the fact that at that stage the offender had been found fit to stand trial, there were clear signs that he was suffering from a mental illness. His Honour imposed a head sentence of imprisonment for five years with a non-parole period of two years six months, to commence on 13 June 2006. Accordingly, the head sentence for that offence expired on 12 June 2011. 43It can be seen therefore that, at the time of this armed robbery and murder of an 81-year-old man in his own home, the offender was on parole for an armed robbery with wounding of an 85-year-old man in his own business premises. I regard that state of affairs as a very serious aggravating feature of this matter. Prospects for the future 44As for the future, it seems that the offender has settled to some degree over the years since he was originally detained with regard to these offences. It seems that he is now engaging well with mental health staff in prison, and is compliant with regard to his medication. Since his incarceration the offender has stopped using prohibited drugs and alcohol, and Dr Allnutt has expressed the view that he is now in remission from Substance Dependence Disorder. The Tribunal report states that although the offender continues to experience hallucinations, and has of late suffered some deterioration in his condition due to the stress occasioned by these court proceedings, there has been "good improvement" in his mental state. 45Dr Allnutt in his report states that the offender understands that he has a mental illness, and accepts the need for medication. Further, the offender appreciates that prohibited drugs and alcohol exacerbate his illness, and he has expressed an intention to pursue drug and alcohol rehabilitation. 46It is proposed by the Tribunal that the offender remain in a stable environment within the prison hospital in the MRRC at Silverwater. Dr Allnutt has proposed that a different antipsychotic medication be trialled. He is also of the opinion that the offender must see a psychiatrist indefinitely. That eminent forensic psychiatrist is of the view that whether the offender is in a prison or is eventually released from detention, he should remain in a hospital environment. 47It appears that the offender's family are supportive of him, and that his parents continue to visit him in gaol. 48Now that the offender has settled into a therapeutic environment; is compliant with his medication; is no longer in a position to consume prohibited drugs; and is no longer in a position to inflict severe violence upon members of the community, I possess a degree of optimism with regard to an improvement in his mental health, and his rehabilitation generally, over the years ahead. Various matters 49Due to the fact that s 54D(1)(b) of the Crimes (Sentencing Procedure) Act is clear that the system of standard non-parole periods does not apply to the process of setting limiting terms, I have not taken into account the applicable standard non-parole period for each offence. 50I do not propose to state mechanistically the aggravating and mitigating features that I have taken into account for the purposes of s 21A of the Crimes (Sentencing Procedure) Act. I consider that these remarks on sentence fulfil that role. 51The Crown did not dispute that the limiting terms should commence on the date upon which the offender first came into custody with regard to these offences: s 23(5)(a) of the Act. That position was adopted despite the fact that the offender has served two months or so of balance of parole since that time. 52Nor did the Crown submit, in light of the substantial legal and factual overlap between the two offences, and the inevitable length of the limiting term with regard to the murder, that there was any need for accumulation as between the two terms: s 23(5)(b) of the Act. I have accepted that submission. 53It follows that each limiting term will commence on 22 May 2011. Victim impact statements 54Although there is no statutory provision whereby victim impact statements can be received in proceedings for the imposition of limiting terms, senior counsel for the offender did not object to the receipt of five such statements by me. In those circumstances I was content to receive them. 55One such statement was poignantly read by the daughter of the deceased, Ms Sue Delany, in open court. Four more, from his daughter Ms Lynne-Marea Delany, his brothers Mr Lyle Harvey Delany and Mr Brian Desmond Delany, and his sister Ms Wendy Delany were received as exhibits and read by me privately. 56It is clear that at the time of his death Mr Bruce Delany was a much-loved father, brother, grandfather, and great-grandfather. He was a man of modest means who enjoyed the simple pleasures of life, such as a yarn with an old friend and a cup of tea. The attendance at his funeral demonstrated the high regard in which he was held by members of the Bourke community, both Indigenous and non-Indigenous. 57Many persons have suffered grievously as a result of his violent death. The wounds inflicted by the offender upon the deceased that morning are by no means the only wounds that have been suffered. Ms Sue Delany has felt guilt that she was unable to protect the deceased. But that guilt is thoroughly misplaced, for the simple reason that only one person is responsible for the violent death of this elderly man in his own home. 58On behalf of the Supreme Court of New South Wales, I extend to all those who have loved and lost the deceased my sincere condolences for his passing. Nothing that occurs today can make good that loss, although it could be that the end of these proceedings, almost three years after the fatal crime, could provide a degree of closure. I have dealt with the victim impact statements in accordance with the well-established principles that govern their receipt after a trial. Conclusion 59In short, the offender committed a premeditated robbery of an elderly man in his own home by way of the use of a deadly weapon. The offence developed into a brutal murder. Steps were taken both before and after the offending to escape detection. The criminal record of the offender featured offences of violence for which he had been imprisoned. At the time the offender was on parole for an armed robbery with wounding that bore a marked similarity to the fatal offences. To be balanced against those reprehensible aspects of the matter is the fact that the offender is a person who has, in some measure, accepted responsibility for what he has done; has suffered a deprived upbringing; is intellectually deficient to some degree; and was and is suffering from a severe mental illness. The limiting terms that I shall impose in a moment seek to balance all of those aspects of the matter. To be clear, were it not for the powerful subjective case, the limiting terms would have been substantially longer. Imposition of limiting terms 60Stand up please Mr McKellar. 61Shane Thomas McKellar, with regard to the offence of armed robbery with infliction of grievous bodily harm, I impose a limiting term of 9 years, to date from 22 May 2011 and expire on 21 May 2020. 62With regard to the offence of murder, I impose a limiting term of 22 years, to date from 22 May 2011 and expire on 21 May 2033. 63I refer the offender to the Mental Health Review Tribunal.