The Queen v Kelly [2013] VSC 144

Supreme Court of Victoria|2013-03-27|Before: OSBORN JA

CRIMINAL LAW - Sentence - Murder - Reckless conduct endangering life - Basis of charge of murder - Constructive intent - Aggravating circumstances of reckless conduct - Aggravating circumstances of murder - Range of culpability in respect of statutory murder - Victim impact statements - Personal circumstances - Medical condition of prisoner - Psychological condition of prisoner - General and specific deterrence - Gravity of offence - Crimes Act 1958 s 3A.

2 At the time of the offences you lived at Apsley in the Wimmera close to the South Australian border together with your wife and five children. You had a close friend, David Etherton, who died suddenly following an epileptic seizure on 10 January 2012. After Etherton's death you became extremely depressed.

3 On 27 January 2012 you were told by one of your sons that one Peter Brown was removing items from Etherton's house and putting them on a trailer. You notified police and then, with one of your sons, drove to Goroke where Brown lived with the intention of confronting him (and, as you told your wife, of giving him the hiding of his life). Brown was not seen by you at his home when you arrived there but you observed a 45 kilogram gas bottle which you believed had belonged to Etherton.

4 Later that day Brown was interviewed by police about alleged theft from Etherton's house. On 7 February 2012 police interviewed Brown with respect to the alleged theft of the gas bottle. The fact of this interview became common knowledge within the Apsley community.

5 On 11 February 2012 Brown and his fiancée Julie-Anne Trenery-Rogers drove to South Australia to visit friends. On the way home they called in at a friend's home in Apsley. It appears that someone notified police that Brown had again visited Etherton's house. Police went to the premises at which Brown and his de facto were visiting and found no offences had been committed. As they were leaving the property your wife and two of your sons arrived. The police told your wife and sons that Brown had done nothing wrong and they should get back into their car and go home. It seems Brown was aware that one of your sons had been present when you and he staked out Brown's house. Brown abused members of your family, yelling out, 'Fucking cunts' and 'I'm going to kill someone, it's going to be another Horsham incident' (a reference to a murder/assault that occurred at Horsham the previous day).

6 Your wife came home and told you about what had happened and the threats Brown had made. You told your wife that Brown would be sorry for threatening your son.

7 On the following day you started drinking beer at about 10:00 in the morning and continued drinking through the day. At about 8:30 in the evening you told your wife that you were going to visit a friend in Edenhope. You took some alcohol from the fridge with you. It seems you also retrieved a loaded .22 rifle from a hiding place and took that with you. You did not go to your friend's place in Edenhope but went to Peter Brown's home at Goroke arriving just after 10:00 pm.

8 When you pulled up Brown went to the side window of the front corner bedroom of his house. He pulled the curtains back slightly to see who was outside and then closed the curtains. As he was moving away from the window you fired a shot from a .22 rifle at the window from your position in a side street. The bullet went through the side window and out of the front window in the corner bedroom. This shot constitutes the basis of the charge of reckless conduct endangering life.

9 Brown then went to his back door to lock it and then into his lounge room to call triple zero on his phone.

10 You smashed open the back door and as you entered the house yelled out, 'Brown you're a weak cunt robbing from the deceased.' At that time Julie-Anne was in the hallway near the door to the main bedroom. Brown saw you in the kitchen area at the back of the house holding a .22 rifle in front of you with both hands in the ready to fire position. You called Brown a dog and abused him further. Upon seeing you, Brown ran out of the house through the front door and as he was running he heard Julie-Anne scream out, 'Don't do it. Don't do it'. You yelled, 'Shut up slut' and fired the rifle. The bullet struck Julie-Anne just below her right shoulder blade, penetrating her right lung and lodging in her heart. When struck she was in the hallway of the house. She died at the scene and this shooting forms the basis of count 1.

11 Brown ran to the rear of his property where he hid from you while you searched for him and yelled abuse. When you failed to find him you fired a shot into his car prior to getting into your own car and leaving the scene. Brown then went to a neighbour's house where he remained until the ambulance and police arrived.

12 You were arrested at your home just after 1:00 am after having driven home via a friend's house at Edenhope. When arrested you said:

The cunt should have been killed anyway paedophile bastard, yeah she stepped in the way ...

Yeah ... I'll tell you what you want to know. Yeah I shot the bitch ...

She stepped in the way.[1]

13 In a short record of interview at the local police station you told police that you went to Goroke to put a bullet in Brown's leg in order to tell him to stay out of Apsley. You fired one shot at Brown through the window and then went to the back door and kicked it in. In the hallway you fired another shot at Brown but Julie-Anne had come out in front of you and been shot accidentally. Despite some contemporaneous evidence that you appeared affected by alcohol when arrested, I am satisfied that the admissions made by you when arrested and in your first record of interview were substantially true and correct.

14 In a further interview at the Horsham Police Station you told police that you took a dislike to Brown when you were told that he had been stealing items from Etherton's house and that when you heard rumours that police had dropped the charges against Brown you decided to go after Brown yourself. You told police that you had been drinking through the day and could not remember driving to Goroke. You could remember sitting in the car outside Brown's house. You admitted firing a shot through the bedroom window after seeing Brown let go of the curtain within it. You admitted kicking in the backdoor, entering the house with the rifle, lowering it as you entered the house and immediately firing it. You fired up the hallway and thought that you had hit Brown but then realised you had shot a woman.

15 The maximum penalty for reckless conduct endangering life is 10 years' imprisonment.

16 At the time you fired the first shot through the window of Brown's house you knew that someone was within the house and that that person had, immediately before the shot, been adjacent to the window through which you fired. You engaged in that conduct recklessly in that you must have foreseen that a probable consequence of firing the shot placed another person in danger of death.

17 Your offending in this respect was accompanied by the following aggravating circumstances:

• you were engaged in a vendetta against a man whom you knew was already the subject of police investigations in respect of the grievance you held against him;

• you took a loaded firearm with you despite knowing you had been drinking;

• you fired into Brown's home in a direct attack upon his right to live peacefully; and

• you did so in circumstances which plainly placed him in danger of death. Indeed, the shot through the window is hard to reconcile with your subsequent statement to local police that you only intended to shoot Brown through the leg.

18 Insofar as the charge of murder is concerned, the Crown put the case against you on the basis of malice derived from an act of violence in the course of a crime. Section 3A(1) of the Crimes Act 1958 provides:

A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.[2]

19 I must sentence you on the basis that the Crown does not put its case on the basis of transferred malice or malice derived from recklessness. This is despite the fact that the admissions that you made to police at Apsley would plainly found a case of transferred malice.[3] It is agreed by the Crown that the underlying offence forming the basis of your conviction was reckless conduct endangering life.

20 The maximum penalty for murder, including statutory murder, is life imprisonment. The culpability of a person convicted of constructive or statutory murder can vary across a very wide range - from accessorial involvement in a homicide where death could be truly characterised as accidental, to direct involvement in a crime of violence where intentional violence results in unintentional death.[4] In this case your actions place your culpability much closer to the higher end of the spectrum than the lower. The intentional firing of your rifle down the hallway of the house after you had smashed in the back door was an act of intentional violence, albeit that I accept it resulted in the unintended death of Julie-Anne.

21 The killing of Julie-Anne involved the following further aggravating circumstances:

• you took a loaded firearm with you in order to pursue Brown and and at the very least place him in fear of injury;

• you broke through the back door of the house by kicking and entered it in a state of rage;

• you knew Julie-Anne was present in the immediate vicinity at the time you fired the shot which killed her;

• as Brown says, she screamed out, 'Don't do it. Don't do it' and you responded by shouting, 'Shut up slut' or something similar before firing the gun;[5]

• you were affected by alcohol and must have known that because of the period of time over which you had been drinking that the use of your firearm might be affected;

• you shot an innocent pregnant woman who must have been terrified by your invasion of the house; and

• knowing her to be shot, you did not pause to attempt to give her any aid whatsoever but left her wounded and pursued Brown into the backyard of the house.

22 I am satisfied beyond reasonable doubt of each of the adverse aspects of the matter which I have identified. I am further satisfied that the aggravating circumstances involved in the killing constituted in part the elements of the offence of aggravated burglary (although you are not charged with that offence). In particular, I am satisfied that you forcefully entered the house with your firearm, as you admitted when interviewed.

23 Your victim was the mother of five children aged from 14 years old to 20 months old at the time of her death. Further, at the time of her death, she was 20 weeks pregnant. The victim impact statements which were read and tendered to the Court make clear the tragic consequences of your actions not only for Julie-Anne but also for her family. You have left five children motherless and destroyed the life of another child within a mother's womb. You have killed Brown's fiancée, the mother of one of his children and the unborn child which he had fathered.

24 The victim impact statements from Brown, Julie-Anne's mother, siblings, daughters and sons spell out the dreadful loss and ongoing difficulties your selfish stupidity and violence have resulted in for their lives. Julie-Anne's mother is faced with overwhelming difficulties in caring for her grandchildren while continuing to confront the grief caused by the loss of her only daughter. Julie-Anne's brother has also had to re-arrange his life in an attempt to look after the children. Not surprisingly the most poignant statements come from Julie-Anne's children. There is a very real sense in which you have blighted their futures. One of your victim's daughters puts it this way:

Everything I pictured with Mum I don't picture anymore and I struggle to see my future.

I feel sad Mum is gone. I feel angry that someone took my Mum. I feel shocked that this happened. There is only one Mum in the world for a child. I feel further away from family and friends. When Mum died I had trouble eating and paying attention at school. Currently having counselling.

26 I turn then to your personal circumstances. You are 48 years of age and were raised in Adelaide. You attended school until Year 10 and since then have had a variety of manual jobs. You have been in receipt of a disability pension since 1995 and have also worked as tattooist.

27 You have suffered traumatic experiences in the early course of your life. You claim to have been gang raped in Canberra at the age of 15 and that claim was accepted by Mr Jeffrey Cummins, an experienced forensic psychologist who has interviewed you. Your first marriage ended when one of your brothers was unfaithful with your wife. In the aftermath of that latter event you committed arson and burnt the family home.

28 You have some other convictions, principally for offences of dishonesty and property damage, but no prior convictions for serious violence.

29 You have been with your current wife since 1994 and you have five children.

30 You have suffered a series of significant health problems. Approximately 15 years ago you suffered a severe post-surgical infection after bilateral surgery for carpal tunnel condition. You have suffered from severe sciatica since 1995 and you also suffer from chronic obstructive pulmonary disease. Since the mid 1990s you have suffered three heart attacks. You have had a drinking problem since you were a teenager and describe yourself as an alcoholic.

31 The most recent medical report is that from St Vincent's of June 2012. This confirms that while in custody your respiratory problems have been reviewed with imaging and spirometry and you have been assessed by the primary care medical team. It states in part:

Unfortunately you have been a smoker and you have been strongly advised to decrease smoking cigarettes in order that you may limit further damage to your lungs.

You are prescribed a number of medications including salbutamol nebules to be used as required. When you last saw the primary care medical officer on the 29th May 2012 you described some cough with green sputum and antibiotics were continued. Examination of your lungs demonstrated good air entry. There were no abnormal sounds in your lungs and it was noted that a recent chest x-ray was satisfactory.

During the period you have been in custody the prednisolone you were taking in winter in the community has been ceased. This medication will be prescribed as indicated by your clinical condition.

An appointment has been made for you to attend the respiratory clinic at St Vincent's Hospital Melbourne in order that you may see a respiratory specialist concerning your problems.

32 The report also notes that whilst you had been prescribed Diazepam on a long term basis in the community nevertheless following psychiatric assessment the view had been formed in St Paul's at the Port Phillip Prison that the most appropriate way of managing ongoing anxiety was to discontinue the use of Diazepam with its attendant problems of dependence. You have also been weaned off other medications. When all this is put together I am satisfied:

(a) that you are receiving ongoing medical attention while in custody and that that medical attention includes a level of specialist supervision which was not readily available to you on the South Australian border;

(b) that you do have ongoing respiratory problems but they are not of the severity suggested by your former general practitioner;

(c) they will nevertheless continue to trouble you on a long term basis and will materially affect your quality of life whilst in custody.

33 A report has also been obtained on your behalf from Mr Cummins, who expresses the following opinion:

Mr Kelly is a 48 year old man who has been on remand since 12/2/2012. He is now pleading guilty to one count of murder (murder at common law) and one count of a charge of conduct endangering life. The circumstances surrounding this offending are summarised in this report. He has no prior convictions for offences of violence, although has a prior conviction for an offence of arson. He set fire to the family home where he lived with his former wife and their four children, as a result of catching his former wife in bed with one of his brothers.

He was gang raped at the age of 15. Significantly, he has never received any psychotherapy or any clinical debriefing in relation to being the victim of the gang rape, or in relation to his former wife's infidelity. In my opinion he requires ongoing psychotherapy. However, he has been on various antidepressants since the age of around 21.

Since 1994 he has been in a relationship with his current wife who is aged 48 and together they have five children who range in age from 11 to 17. Two of his sons suffer from Asperger's syndrome and ADHD, and one of these sons has also been provisionally diagnosed with autism. He said as a result of his arrest all members of his family have been struggling psychologically and he understands his wife, his two eldest sons and his youngest son are all receiving mental health treatment.

Mr Kelly suffers from multiple medical conditions including chronic alcoholism (most recently in partial remission), depression, chronic obstructive airways disease, gastro-oesophageal reflux and chronic sciatic pain. He has been on an extensive medication regime and was weaned off some of this medication when initially on remand and this was the subject of a formal complaint to the Health Services Commissioner. He regards himself as being precariously physically ill and states he anticipates he will die in custody as a result of not being able to 'fight off' an acute lung infection.

In my opinion he reports genuine remorse concerning his offending behaviour. He accepts he should never have arrived at Mr Brown's address whilst intoxicated and in possession of a loaded firearm. Significantly, he does not regard himself as a violent person and has never been a member of any gang. Nonetheless, he said he would be prepared to participate in an anger management program whilst in custody. He is currently held on protection and stated he has never been provided with any explanation for why he is held on protection. He does display a mildly elevated level of paranoia and stated he thinks he is held on protection because a local police officer who played a role in him being arrested and charged never approved of him and his family moving into the small town of Aspley. He stated he knows no one in the Victorian prison system. For this man, therefore, serving a sentence would be much more onerous than for someone who does not have his medical and psychological problems and for someone who is not held on protection.

... Speaking strictly as a clinician, it is my opinion at the time of offending he was suffering from a depressive disorder in the form of a Dysthymic Disorder (DSM IV-TR-Code 300.40). In my opinion he was also then suffering from a Post-Traumatic Stress Disorder or, more correctly, a Complex Post-Traumatic Stress Disorder (the clinical term used to describe multiple Post-Traumatic Stress Disorders). In my opinion suffering from these conditions at times skewed his perception and judgement. His judgement at the time in question was also additionally compromised because he was intoxicated on alcohol and also because he had been feeling additionally aggrieved because the person he sought to speak with, namely the victim Mr Brown, had just recently been observed stealing items from the home of Mr Kelly's recently deceased close mate (in relation to whose death he was then experiencing acute grief). In my opinion this issue of Mr Brown committing this theft would have been particularly provocative for Mr Kelly, as he has chronic and as yet unresolved issues concerning trust and the breach of trust.[6]

34 I do not accept that the account you gave to Mr Cummins fully acknowledges your responsibility for the offending which occurred on the night. In particular, I do not fully accept the following account, which you gave him:

I think I fired a shot into his house and then I sort of kicked the back door in. I remember the glass smashing and I saw him standing in the hallway. I thought I fired a shot towards the ceiling, but the police said the shot hit Miss Trenery-Rogers and she died at the scene. I am troubled by all of this. I am not a violent person. I know what I did is unacceptable. I just felt so protective of my wife and kids. The police admitted they were present when Mr Brown made the threat to my wife and my two sons but apparently the police are now saying they shouldn't have taken this threat as being intentional. I think the other thing that got to me was my mate passed away a couple of weeks before this and then Mr Brown was caught ransacking my mate's house.

In particular I do not accept you fired a shot towards the ceiling. It is not what you told the police when you were arrested nor when you were first interviewed.

35 In turn I do not accept that your expressions of remorse reflect a full acceptance of responsibility for your actions. The statement I have just quoted is replete with attempts at self-justification. It does not reflect any true appreciation of the horrific consequences of your actions.

36 On the plea made on your behalf your counsel elaborated the background to your offending and in turn emphasised the following matters:

(4) the basis on which the Crown case is put in relation to your intent;

(5) the depressive disorder and post-traumatic stress disorder diagnosed by Mr Cummins as relevant to your offending;

(6) the conditions which will make your imprisonment more onerous than would otherwise be the case;

(8) the question of totality in the case of offences arising out of one course of conduct.

37 You must of course be given significant credit for your pleas of guilty. I accept these pleas were made at the earliest possible opportunity and that you co-operated with police in their investigation of the offending. Amongst other things, your pleas and other conduct have minimised the trauma which would otherwise be occasioned to Julie-Anne's family by a trial. They also are of utilitarian value.

38 Insofar as remorse is concerned, you demonstrated no remorse at the scene. This said, I accept that your pleas must be taken as indicative of some subsequent acceptance of your responsibility for your crimes but I am not persuaded that you are as remorseful as Mr Cummins states. It seems to me that you still do not acknowledge the full gravity and totally unacceptable nature of your behaviour, although I have no doubt you regret the consequences of your actions for yourself and your wife and family.

39 Insofar as your prior convictions are concerned, I accept that you do not have prior convictions for serious violence. I also accept that the majority of your offending appears to have been alcohol-related. Nevertheless, I have concluded that the combination of your prior conviction for arson in the circumstances I have described and the offending which has brought you before me confirms that you have a serious problem with anger control. In her police statement your wife described your character this way:

When Mike gets into a depressive phase he is not too bad to start off at the beginning of the day. By lunchtime on those days he is looking to have a beer. Once he gets to about his third beer he becomes quite tough and a bit aggressive and he just shuts down and won't talk. He gets very angry with anything to do with people messing with his family or people that he considers to be his family. It is this mindset that led him to hate Peter Brown at Goroke.[7]

40 Insofar as your state of mind at the time of the killing is concerned, I accept that you were intoxicated to some degree, particularly as Brown had this impression at the scene (although your wife describes you as talking clearly and making sense when you left Apsley, you were able to drive successfully from Apsley to Goroke, you were able successfully to put a shot through the window of the house when Brown first appeared, and after the killing of Julie-Anne you drove back to Apsley, disposing of the rifle on the way). I also accept that you felt deeply aggrieved towards Mr Brown. I am not however persuaded that such ongoing depression as you suffered from can be regarded as materially reducing your moral culpability.

41 Insofar as Mr Cummins diagnoses complex post-traumatic stress disorder, I accept that your early life experiences may help to explain the irrational degree of emotional grievance you held towards Mr Brown and in this sense may have skewed your judgment.

42 I accept that the fact the Crown has agreed that it cannot establish that you acted either with the intention to kill or with the intention to cause really serious injury is a significant factor reducing your moral culpability. In DPP v MM, Harper J (as he then was) said:[8]

The maximum sentence for a s.3A murder is the same as for a murder constituted by an intentional killing: that is, life imprisonment. On the other hand, Parliament has enacted legislation which requires the courts, when deciding upon an appropriate sentence, to take into account, among other things, the nature and gravity of the offence. And the absence or presence of an intention to kill is something which is a necessary element of that nature and that gravity. Of course, the absence of an intention to kill as a mitigating factor may be so overwhelmed by the criminality of other aspects of a s 3A killing that it cannot warrant any reduction in the sentence which must be imposed. Ordinarily, however, the absence of an intention to kill will result in a lesser sentence than would have been imposed had the criminal intended the death of the victim.

43 For the reasons I have explained however, it nevertheless seems to me that when the circumstances of your offending as a whole are considered the murder you committed must be regarded as falling towards the upper end of the range of seriousness and culpability referred to by the Court of Appeal in Zaim v The Queen.[9]

44 I also accept that the combination of your physical disabilities and in particular your respiratory condition together with a degree of ongoing depression is likely to render your period of imprisonment more onerous than would be the case for a prisoner not suffering from these problems. No doubt, as your counsel submits, your separation from your wife and children will also cause you stress and anguish, but this is an inevitable consequence of long-term imprisonment. It was not submitted that yours is a case of exceptional circumstances.

45 Insofar as rehabilitation is concerned, I accept that you will have some opportunity to engage in anger management courses while you are in custody and that you will also have the opportunity to attempt to address issues of alcohol abuse. Nevertheless, you are a mature man and I am not persuaded that the prospects of material change in your personality and habits are good.

46 Lastly, in terms of the matters which your counsel emphasised, I accept that your offending constituted one course of conduct. On the other hand, each of your offences relates to a separate victim and the first shooting which occurred after you had seen Mr Brown at the window of his house was itself a serious example of reckless conduct endangering the life of another person. Put at its simplest, you cannot be seen to have had a free shot at Mr Brown.

47 I must ultimately impose a sentence which reflects the seriousness of your offending. The murderous taking of another life offends the most fundamental of society's values. Your conduct in firing both of the shots which form the basis of the charges to which you have pleaded guilty must be denounced by me on behalf of the community which I represent as offending against the sanctity of life which is the core value of our legal system.

48 Your conduct also raises significant issues of general and specific deterrence. The tragic manner of Julie-Anne's death demonstrates in the starkest terms the need for deterrence of the community generally from resort to the use of firearms as an expression of anger or for the purpose of acts of revenge. The use of firearms when affected by alcohol must also be unequivocally condemned. The tragic loss of life in such circumstances is a consistent thread which blights life in rural Victoria. I must also make clear to both the members of your family and your victim's families that vendetta has no place in the Australian way of life.[10]

49 Insofar as you yourself are concerned, your relatively mature age and the fact that you are a father of five do not appear to have been accompanied by any mature understanding of the potential consequences of your actions. The penalty I impose must bring home to you that the use of violence is something that you must learn to refrain from and that you must learn to control your behaviour if you drink alcohol.

50 The nature of your offending, in combination with your criminal record and in particular the incident of arson, also to my mind raises a real issue of the need to protect the community from further offending on your part. It is apparent you have a very serious problem with anger management. That may have its roots in psychological problems for which you are not to blame, but nevertheless it is plain that you have the potential for future serious violence.

51 Despite your pleas of guilty and the other factors which have been raised in mitigation upon your plea (including most significantly the limited basis on which the Crown puts its case in relation to your intent and the conditions which will make your imprisonment more onerous than normal) I must impose a substantial period of imprisonment upon you.

52 Michael Terrence Kelly, I sentence you to 17 years' imprisonment in respect of count 1, being the murder of Julie-Anne Trenery-Rogers. I sentence you to three years' imprisonment in respect of count 2, constituted by reckless conduct endangering life. I direct that two years of the sentence on count 2 be served cumulatively upon the sentence in respect of count 1, resulting in a total effective sentence of 19 years. I fix a minimum non-parole period of 16 years.

53 I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your pleas of guilty I would have sentenced you to 24 years' imprisonment with a minimum non-parole period of 21 years.

54 I declare pursuant to s 18(4) of the Sentencing Act 1991 that you have served a period of 407 days of pre-sentence detention and that that period be reckoned as already served under this sentence. I direct that this declaration be noted in the records of the Court.

[1] As audio recorded and confirmed by three police officers.

[4] Zaim v The Queen [2011] VSCA 80, [48] per Bongiorno JA, with whom Ashley and Hansen JJA agreed.

[5] Two independent witnesses also heard a woman yelling.

[6] Report of Jeffrey Cummins, Consulting, Clinical & Forensic Psychologist, dated 23 February 2013, 6-7.

[10] When arrested the prisoner told one of his sons to finish the job.

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