The accounts which the offender later gave
48While the experts agreed that the offender suffered from a depressive illness, they disagreed as to its nature and the degree to which it contributed to his offence. They both had access to largely the same material and Professor Greenberg also had Dr Nielssen's report. Their opinions also rested on the histories which the offender gave each of them. A comparison of their reports shows that those histories were inconsistent in a number of relevant respects both from each other and from the later agreed facts.
49Apart from what he told his wife the night that he shot Mr Kelly, on the evidence, the offender has only given a coherent account of what he did to Dr Nielssen, who first examined him in July 2012 and again in January 2013. He told Dr Nielssen that he was a completely different person since receiving treatment; that he acknowledged that he had caused Mr Kelly's death, for which he said he was remorseful; and that he intended to plead not guilty on the grounds of mental illness.
50The offender did not appear to have such clarity of thought when later examined by Professor Greenberg, who he told that he did not have a good memory of what had happened and to whom he gave quite a different account of various relevant matters. Professor Greenberg had real reservations as to the offender's accounts, for good reason, it appears.
51Amongst other things, the offender told Dr Nielssen that he met Mr Kelly after he purchased the property at Broadwater, where he initially lived in a tent, before erecting a shed, where he began to stay more often. He then began to see Mr Kelly, who jumped over the fence and became a bit of a nuisance, inviting himself over, never bringing a beer and impeding his enjoyment of the place.
52Their conflict in 2009 began when Mr Kelly turned up while he was having a beer with Mr Ellis and became annoyed when he wasn't given another. Mr Kelly made a provocative reference to homosexuality and put his arm around the offender and said 'don't knock it until you tried it'. The offender pushed him away and Mr Kelly picked up a stick and swung it at him, leaving him with an abrasion and bruising. The offender rang the police who later charged him with assault, although the charges were later dropped. Since then there had been open hostility between he and Mr Kelly.
53He said that on the morning he killed Mr Kelly he had been woken by a bang on the shed, which he assumed was caused by Mr Kelly. Later, when he was cutting down the tree with Mr Ellis, Mr Kelly popped up out of the blue and told him that he needed council approval and goaded him with abuse, including a remark that he found his wife attractive, which the offender said was 'the last straw'.
54The offender told Dr Nielssen that he later had several beers with Mr Ellis and after Mr Ellis left, he kept drinking, consuming about a carton of beer and between a quarter and half a bottle of rum over a period of several hours.
55The offender said that he had been in a depressed state of mind for about six years, the major cause of which was the loss of $250,000 on a property development venture. He and his wife were some $660,000 in debt and were facing bankruptcy. He was irritable, easily frustrated and depressed before seeking treatment. He was then being treated with antidepressants and had gone to the shed to get away.
56The offender also said that about a year before, he had begun experiencing hallucinations of a voice, which he thought was his father's. It got bad that night and got him into a pretty worked up state, which he described as like being in a movie, like watching himself.
57He said that he heard a voice say 'go and sort him out'. He had never been to Mr Kelly's home before, but went to his kitchen door, where Mr Kelly 'popped up with a knife' and then he shot him. They had no conversation. He had not wanted to shoot Mr Kelly, but had his finger on the trigger and shot him once in the head. The voice said 'take it off' and he used a knife to cut off his head, he said 'don't ask me why'.
58He got rid of the head in the river. When asked why he had not got rid of the body as well, the offender said that:
"I put a hat over the wound ... I just felt appalled at what I did ... I couldn't make much sense of it ...I have great remorse and regret for Ned even though we didn't get on ... I was on automatic ... I felt I couldn't stop myself even if I wanted to."
59When asked about his memory of the events he said:
"I was balancing different emotions...freedom and the reality would hit in succession."
60A number of things need to be observed about this account. The first, that it does not accord with what the autopsy report established, namely, that Mr Kelly's head was decapitated hours after he was shot. The second, that it does not accord with aspects of the agreed facts, particularly as to the other calculated steps which the offender took in an attempt to conceal his crime. Thirdly, that it does not accord with what the offender told his wife not long afterwards, namely, that he had killed Mr Kelly because he was 'pissed off' with him. Fourthly, it does not accord in relevant respects with what he later told Professor Greenberg.
61Dr Nielssen's report as to the offender's mental state was:
"At the initial interview Mr Stenberg presented as a short strongly built man who had an anxious manner and appeared quite depressed. He was suspicious and early in the interview asked to examine some proof of identity. He appeared quite distracted
and had difficulty completing sentences and retrieving information in a way that appeared to be due to the disorganisation of thinking associated with mental illness. He described typical symptoms of schizophrenia and the persecutory belief that he had been in danger prior to his arrest in response to those symptoms.
...
Mr Stenberg's mental state had improved by the time of the recent interview. He did not appear as anxious and depressed. He was polite and addressed me as "sir", in a way that perhaps reflected his background in the Army. His speech was normal in form. He reported experiencing hallucinations of voices in the past, but recognised them to be hallucinations and said that they had resolved with treatment. No delusional beliefs were elicited. He was correctly oriented, was able to provide a detailed history and his intelligence was estimated to be about average from his vocabulary, literacy and occupational and educational attainment."
62Dr Nielssen concluded amongst other things:
"The diagnosis of probable psychotic illness is based on Mr Stenberg's account of typical symptoms of schizophrenia-like psychosis and aspects of his presentation during the initial interview, when he seemed quite suspicious and to have disorganised thinking in a way that was consistent with active mental illness.
...
Based on the history from Mr Stenberg, and the information from the various medical records, his illness is probably a form of psychotic depression, as he reported hallucinations of voices that he recognised to be hallucinations, which appeared to be associated with the experience of depressed mood and were
reported to be worse when he was in a distressed state. Mr Stenberg did not report holding any delusional belief regarding Mr Kelly, for example, that Mr Kelly posed an immediate threat to him, or any delusional belief regarding the source of hallucinated voices. He reported being intoxicated with a large quantity of alcohol consumed on the day of the offence, and that his behaviour was influenced by hallucinations of voices he experienced around the time of the offence, which may leave open a defence of mental illness to the charge of murder."
63Dr Nielssen's opinion was that the offender had a probable psychotic illness, which was in remission and that he suffered from a depressive illness, alcohol abuse disorder and a possible underlying learning disorder.
64Professor Greenberg received a somewhat different account from the offender. His opinion was that he was suffering depression; alcohol abuse/dependence; steroid abuse in remission and learning disorder in childhood. While the offender did not have a mental illness he thought there were possible mitigating matters relevant to sentencing namely that of substantial impairment by abnormality of the mind.
65The offender had told Professor Greenberg that Mr Kelly had approached when they were cutting down the tree and abused him, telling him he 'should not be cutting down his trees'. He said 'I got irate with him telling me what to do on my property'. Mr Kelly had threatened him, by saying 'you'd better not let your wife (come) down on her own.' Mr Ellis told him that Mr Kelly had assaulted a girl in the past and he then told Mr Ellis that he had a gun.
66The offender said that he was angry and his mental state was not good. He was verbally aggressive towards Mr Kelly and told him to mind his business. Mr Kelly abused him and then retreated into his property.
67As to his alcohol consumption the offender said that he and Mr Ellis then drank eight stubbies and he had also drunk three Vodkas. He was unhappy and fed up with Mr Kelly, for trying to tell him what to do. He could not clearly recall going to the pub, but he remembered buying a carton of beer and drank some before he went to sleep. He then felt life was kicking him around and he felt drained.
68He was woken by a bang on the side of the shed and heard voices outside. It was dark. He was sure it was Mr Kelly who had kicked the shed. He heard a voice say 'What are you going to do about him hitting my property?' He then got out of bed to chase Mr Kelly.
69He said that he had a pistol on him, because he always slept with a pistol under his pillow. He had been paranoid for 17 months before the shooting. He went outside, but claimed he had no recall of going to Mr Kelly's home. He reported only having 'bits of memory'. He recalled Mr Kelly being on the ground in his kitchen. He had never been there before and said that he had no recall of the shooting. He did recall hearing the discharge of a firearm. He thought that Mr Kelly was going to get his shotgun.
70The offender recalled no conversation, but remembered feeling 'anger, really angry' about Mr Kelly and other things. He felt like he was in a movie. His body was doing 'this stuff' and he was aware of what was going on and what he had done. He felt shock and sick inside his head, which was pounding. He went back to his shed and drove to Brisbane.
71The offender could not recall any further information. When asked why he had decapitated Mr Kelly, he said he was just 'angry upset and confused'. When asked where he had disposed of the head, he had no recall. He also had no recall of putting accelerant on Mr Kelly's body, leaving the stove on, or manufacturing the fuse left on the hat. When asked why he had left the hat on the body, he said 'I just wanted to get out of there as fast as I could. I was upset and the medication didn't help at that time'.
72When further questioned he said he had no recall of what had happened. When asked why he had shot Mr Kelly he said 'cause I didn't want to get shot by a shotgun. He was on my property first. I thought he would shoot me'. He also said that he was intoxicated and had taken antidepressant medication and one Xanax.
73The offender said that he told his wife on his return home that he had 'trouble on the block'. He arranged to go to the Northern Territory next day. At the time 'he kind of knew what I've done'. He said he was 'pretty fucked up' and the whole thing 'seems like a blur'. He claimed that he had not gone to the Northern Territory to flee, but to find work. He also said that he did not go to the police because it didn't seem like he had done anything wrong and that his mental state was not good.
74There is no explanation for this loss of memory apparent on the evidence, although it must be remembered that Dr Nielssen examined the offender when he was seeking to advance a mental illness defence and Professor Greenberg, when he was wanting to have a plea to manslaughter accepted.
75This first account given to Professor Greenberg does not accord with aspects of the account he had earlier given to Dr Nielssen; nor does it accord with what the offender told his wife when he returned home the night he killed Mr Kelly, it also does not accord with aspects of the later agreed facts; or with some of what he said in his second interview with Professor Greenberg.
76In his second examination the offender told Professor Greenberg that he felt strange at the time of the offence. He was drinking beer with his antidepressant medication, but he felt a lot more relaxed and friendly and not in a bad mood. He became angry and agitated when he argued with Mr Kelly over the tree. He did not know why Mr Kelly felt he could tell him about his job and that Mr Kelly made no effort to talk to him civilly. Normally he would get in his truck and drive away but he was bogged down because it had been raining and he did not want to get stuck in the mud.
77The offender told Professor Greenberg that he could not then remember the murder. He could recall a loud bang on his shed and hearing a single voice outside. It was all 'bits and pieces'. He was reluctant to discuss them any further. He then claimed that he had been hearing voices inside his head telling him he was no good and not to bother or try, continuously since aged 13 years. He did not, however, recall hearing any voices at the time of the offence.
78When asked about going to the Northern Territory he said he did not believe it had happened and was going there for work. When asked about changing his number plates, he said he had little breaks of reality and would then drift off again. He said that he got a new mobile because he needed a new one and his old one did not have good reception outside Brisbane.
79When asked why he had told his wife not to tell anyone about him, he said he was not sure what was going on and wanted to 'work it out first', before he spoke to anyone. He was trying to protect his wife.
80The offender did not reply to questions about why he had put a hat on Mr Kelly's torso. He said he did not know why he had tried to set fire to the property. He said that he has 'good days and bad days'. When asked again, he accepted that he had shot Mr Kelly and said:
"I was really angry at the time. He was coming and abusing me over the fence. It was the last straw."
81When asked about Mr Kelly's threat to rape his wife, he stated that Mr Kelly had told him this over the fence and had abused him; that he 'wouldn't hear half of it' and that he had said 'don't leave your wife on the property without you being there'.
82Professor Greenberg also reported:
"I asked Mr Stenberg what had happened to the bird in the cage of the home of Mr Kelly and he stated that he had let out the bird. He stated that he didn't think it was fair that the bird was left in the cage. Mr Stenberg stated he identified with the animal. When asked why he had let the bird out the cage he stated that he didn't want the bird to get burnt. He stated that he didn't want to see anything happen to animals"
83Again, not only did this further account depart from the earlier accounts which the offender had given both Professor Greenberg and Dr Nielssen, it, too, departed from aspects of the later agreed facts. On this occasion, while the offender claimed to have even less memory of what he had done than before, what he said about the bird showed that he had a memory of trying to set Mr Kelly's home alight, which he was not prepared to discuss. He was also not prepared to discuss other things which he plainly did remember.
84Professor Greenberg reported as to the offender's mental state:
"Mr Stenberg was difficult to interview. He claimed to have limited recall of the events at the time of the alleged offence or of events following the event. He was a poor historian and had difficulty expressing his feelings. He had a chin beard and was malodorous. He is a man of short stature who is mildly obese. He had monotone speech. At times during interview when asked direct
questions about the alleged offence, he became distressed and claimed that he was anxious and could not answer the question. His affect was restricted and dysphoric. At times his history was disjointed. There was no evidence of and(sic) formal thought disorder. His thought was mildly retarded in flow. There were no true auditory hallucinations or any other hallucinations such as visual, tactile or olfactory amongst others. He reported vague paranoid ideation that people were talking about him or that people did not like him. There were no overt paranoid delusions or delusions of any other nature such as grandiose or referential delusions. He denied any symptoms of disorder of thought control such as thought insertion or thought broadcasting. He tended to have
poor psychological insight into his psychological problems."
85Professor Greenberg concluded:
"I am of the opinion that Mr Stenberg suffers from depression and anxiety. I am of the opinion that Mr Stenberg does not suffer from a major psychiatric illness such as a Schizophrenic Disorder or other psychotic disorder. I am of the opinion that his complaints of "voices" relate to his depression, anxiety, and feelings of poor self-worth, poor self-esteem and his current perceived bleak circumstances with him being in custody and facing serious criminal charges of murder."
86In my assessment it cannot be concluded from the evidence on which the offender relies that facts beyond those which have been agreed were established by the inconsistent and untested accounts which he earlier gave to Dr Nielssen and Professor Greenberg.
87The offender relied on those accounts to advance various of his submissions. I am satisfied that these untested, inconsistent accounts are unreliable and do not provide a basis upon which any conclusions favourable to the offender can readily be reached.
88There is no evidence that Mr Ellis, who was present during the altercation on 17 June between the offender and Mr Kelly, heard Mr Kelly make any threats. On the agreed facts when Mr Ellis asked the offender what the argument was all about later that day, he made no mention of any threat and when he woke his wife later that night, he reported no threat to her. He also made no mention of any threat to his wife when he spoke to Dr Nielssen. The account of a threat of rape which he later gave his wife in an email, was not repeated until Professor Greenberg asked the offender about it. That such a threat was made has not been established.
89The offender certainly used a knife to decapitate Mr Kelly. The evidence did not establish who the knives found near the body belonged to. The only suggestion that they belonged to Mr Kelly came from the offender, who told Dr Nielssen that Mr Kelly came to the door armed with a knife. He made no mention of this to Professor Greenberg, who he told instead that he feared that Mr Kelly had a shotgun and was going to shoot him. The absence of any defensive wounds is consistent with Mr Kelly being unarmed when he was shot.
90It follows that in assessing the nature and seriousness of this offence, these various accounts cannot be accepted as establishing that Mr Kelly threatened the offender's wife, that the offender was in any fear of Mr Kelly, or that Mr Kelly had either a knife or a shotgun when the offender came to the door and shot him in the head.
91It follows that it must be concluded that this was objectively a very serious example of murder, as the Crown submitted.