Director of Public Prosecutions v Kellen (a pseudonym)

[2019] VCC 1899

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARCUS KELLAN (A PSEUDONYM)

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JUDGE:

HIS HONOUR JUDGE SMALLWOOD

WHERE HELD:

Latrobe Valley

DATE OF HEARING:

13 November 2019

DATE OF SENTENCE:

15 November 2019

CASE MAY BE CITED AS:

DPP v Kellen (a pseudonym)

MEDIUM NEUTRAL CITATION:

[2019] VCC 1899

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Ms L. Watson

Office of Public Prosecutions

For the Accused

Mr A. Paton

Miceal Ambrose Lawyers

HIS HONOUR: 

Marcus Kellan, you have pleaded guilty to one charge of carry a loaded firearm with reckless disregard to the safety of a person, one charge of threat to kill and one charge of possess a drug of dependence, being ecstasy. 
You also pleaded guilty to a number of uplifted summary matters and I do not propose to detail each and every one of them.  What am simply going to do is give an aggregate sentence on the summary matters of three months and for reasons of totality, make it totally concurrent.

You are now 48 years of age.  You pleaded guilty to these matters at a reasonably early opportunity and you must get the utilitarian benefit of that. 
In these circumstances, as your counsel conceded the other day during the course of the plea, there is absolutely no remorse.  That is not an aggravating feature.  It simply means that you do not get the benefit of one in these circumstances.  It could have been very strong mitigatory material.

You have no relevant prior convictions.  As I understand the situation, you have no matters pending. 

A summary of the offending is that you and your wife had been in a relationship for approximately 14 years and had been married for 12 of those.  You have a 13 year old daughter named Lucy together.  You and her lived in the Baw Baw area.  There is some argument as to what had occurred in terms of the relationship, I do accept that you, at this point in time, were suffering from depression and anxiety and had been for some considerable time. That had been exacerbated as was indeed confirmed by your wife in her statement by the passing of a couple of close relatives, being as I understand it your father and a brother.

I am not going to make findings as to what acts of family violence may or may not have occurred beforehand.  The Crown opening says that it had been going on for a number of years.  You, to a psychologist, have basically denied that.  Simply, as I pointed out to your counsel, I am not going to make findings as to that.  I just simply will not be sentencing on the basis that this is a one-off, out of character incident.

At approximately 6 o'clock on 9 October 2018, you were in the shed at the family property and the victim (or victims in this case really), confronted you about financial needs and other issues.  You became defensive and there was an argument and she left you at the shed to cool off.

At around 8.30, you came back into the house.  The Crown opening has been tendered and I do not propose to read exactly from the Crown opening. 
What I saw and was handed was the actual statement of the victim.

My concern in that regard was as to what actually occurred in relation to the children during the course of this and I think I can quite safely read the appropriate paragraphs from her statement being paragraphs 8, 9 and 10. 
She said:

‘Marcus came into the shed at about 8.30 pm.  I was sitting in the lounge, Lucy was in the lounge room with me and Tim was in the kitchen [that being a stepson of yours with disabilities].  Marcus and I started having a further argument about our relationship not working, that we're better off going our separate ways.  I recall Marcus saying to me "Oh well that's fine.  I'm gonna grab the gun and shoot myself and you're gonna watch every bit of it." 

'What Marcus said made me go into panic mode as I thought Marcus would really do what he said.  Marcus then sent Lucy to bed and sent Tim to his room.  Lucy was petrified.  Marcus then went out the front door. 

'Shortly after, Lucy came back out of her room to be with me as she was scared.  I was discussing with Lucy about leaving the house, running through the paddock together to get away from Marcus.  Moments later, Marcus returned to the front door.  Lucy was in the kitchen at the time and bolted back into her bedroom.  I was still in the lounge.'

That is what is in her statement.  What occurs after that is, again, I'll refer back to the Crown opening.

You came in holding a gun, I accept it was not a shot gun, it was a .22, 'I told you I was serious, you're going to watch me shoot myself and kill myself.' 
She started screaming, she was terrified of what you were about to do. 
You told her to shut up.  You closed the door of the lounge room so that your daughter would not hear what was taking place.  You stood in front of her as she was sitting in an armchair holding the family dog.  You held the gun in front of her and began swinging it like a baseball bat.  Charge 1 and Charge 2 are all intertwined to a large extent with this.

You then turned the gun around and pointed it to your head saying 'How would you like me to do it?  How would you like to see it done?'  You then pointed the barrel of the gun under your chin, then pointed it to your heart and said 'Maybe I'll just do it this way.'

You then turned the gun around and pointed it to her forehead, touching her forehead with the end of the barrel.  You kept yelling at her saying that you are not being appreciated and she did not know how hard it is to live with depression and anxiety.  You then dug the gun in her eye socket, pushing it in, causing her pain.  She stated 'Whilst this went on, I remember Marcus saying things like he wanted to kill me slowly so that I can feel the pain that he feels with the depression and break me slowly.  All I can really think about was the rifle being put between my eyes and I was crying and pleading with him to stop.' 
This continued.

Whilst this was taking place, she had been looking straight at the TV as she was scared to look at you.  You then turned around and fired one shot into the television.  You the removed the magazine from the firearm and said to her 'One down, nine to go.'  You then said 'I told you I'm serious,' before placing the loaded magazine back in the gun and pointing it back at her head.

She has estimated that the incident took around three hours, how accurate that is, I do not know.  It was certainly a long time.  She was not allowed to go anywhere.  Finally, she was able to settle you down and then the two of you went to bed and slept.

She, in her victim impact statement, describes what occurred after that and I will get to that in a moment.

On 13 November, after talking to other people, she finally went to police and made statements.  On 14 November 2018, at approximately 12 o'clock, police attended at your address and executed a complaint and warrant.  You were there found with firearms which were registered and you are a person who is entitled to have firearms.  I am not going to go through all of the detail of that.  Just simply that they were not stored properly.  There is also the possess a drug of dependence, which I am told is ecstasy and again I am not going to go through that and there was a baton, which again I am not going to go through that.

In any event, you were taken to the Warragul police station where you were formally interviewed.  During that interview, you made full admissions about the firearms and full admissions about the ecstasy.

Insofar as the family violence was concerned, you claimed that you did not remember the incident and that all you remembered was a loud bang. 
You told the police you suffer from severe depression and anxiety.  A family violence intervention order was taken out and again, that is a summary matter, so I am not going to deal with that, which was breached in a relatively harmless, in terms of what is actually stated in the contact with her, way again that is just going to be part and parcel of the summary matters.  You admitted to those.

It is the situation that I have to be careful first here of double punishment because of the loaded gun and the actual threat to kill charges and I will be doing that by only ordering a limited amount of cumulation.

Threat to kill is a charge which can vary considerably in terms of the seriousness of it.  The vast majority of threat to kill charges are, in my view, throwaway lines in the heat of an argument or in the course of a dispute or someone who is becoming angry for a moment or two.  This threat to kill is way out of that league.  It is, in my view, clearly at the higher end of threat to kill and must receive a sentence commensurate with that, albeit that threat to kill and the reckless endangerment charges have maximum penalties of 10 years which I am fully aware of.

Your wife's victim impact statement says, 'Talking specifically about the night in October 2018, the events mentioned in the police statement and particularly Marcus’ actions to taunt me over a period of hours whilst holding a gun lead me to feel absolutely terrified, vulnerable, helpless and physically and emotionally exhausted.  Marcus’ actions made me feel I had no control over the situation and I honestly felt that this was the night he would take my life as he threatened to kill me.

'Over the next few weeks [this is after the crime], I felt vulnerable and scared and unsure of what to do.  My daughter and I were still residing in the family home.  I felt a sense of weakness in myself that I did not have the courage to leave.  I felt very fearful that Marcus would lose control and helpless, as I did not feel that reaching out for help would be the most productive course of action, that I honestly felt that Marcus would find me wherever I went and come after myself and Lucy.  Therefore, during the weeks before I left, I felt like I was walking on eggshells in the house and very nervous when he would walk in the door.  I also felt immense shame that our marriage had reached this point, that I kept thinking there must be something that I can do to assist in rectifying the situation.  I felt a sense of failure and I was sleep deprived, exhausted and felt like I was just existing.  I also burst into tears over little things that occurred. 
My emotions were becoming out of control.'

She said 'I felt like a terrible mother for putting my daughter through that situation although I now know the fault falls on Marcus and not me.'  She talks about the additional financial burdens that have been placed on her by all this and she goes on to say 'I'm currently engaged with a psychologist who advised me that I suffer anxiety.  I feel socially withdrawn as my ability to trust other human beings has decreased.  It has now been over six months since the separation and I still feel I am on an emotional rollercoaster.  I do not feel a desire to participate in community events or socialising with friends as I feel I have withdrawn in myself after experiencing the violence Marcus perpetrated and the trauma that came with these events.  I experienced nightmares of the incident where Marcus held a gun for many hours and I often wake up feeling as though I'm pushing a gun away from my head.  I'll also wake up sweating and if I hear noises around the neighbourhood, I often lay in bed shaking.'

She then describes another incident where she heard gunshots and immediately panicked thinking it would be you.

Your daughter, in her victim impact statement, and I have already read out the statement insofar as her presence was concerned on that night, I understand did not make a statement.  Whether she heard the shot or not, I do not know, but if she heard that shot, she must have assumed that either you were dead or her mother was.

She says 'After that night, I did not know how to act around Dad.  I felt like I had to act normal.  I didn't want to be in the house anymore. 
I felt very vulnerable in Dad's presence as I felt like if I did or said anything wrong, I didn't know what he was capable of doing to Mum as I felt like he would take things out on Mum.  After that night, I could not fall asleep until around
2 am as that is when Dad would come in from the shed and I was worried about what he would do to Mum while she was sleeping.  If he did come in, I would be awake until morning because I was worried about what he would do to Mum.  I sit up halfway in my bed with the covers up to my neck to pretend I was asleep if he came in.  Sometimes, I wouldn't eat breakfast as I would want to leave the house as soon as possible.'

She has been told by a psychologist that she has super arousal and finds it difficult to trust others.  She feels very protective of her mother.  She goes on to say, 'At my new house, I sleep with Mum and can't sleep in my own room.  I'm always scared Dad will find our new house.  We have to be very secretive.  We always close our blinds, windows and we don't have many lights on. 
We make sure our doors are locked.'

That is the consequences of what you did that night to your then wife and your daughter.

When you spoke to Mr Kennedy, the psychologist, he reports, 'A month prior to the separation, his wife accused him of having affairs and spending money and he stormed out.  He's pleading guilty to the charges associated with having a loaded firearm and threat to kill.  His account is he has never threatened to kill his wife.  His intention was to shoot himself.  He got a rifle and stood in front of his wife with the rifle under his chin and she took the rifle off him and put him to bed.  It would appear they separated with his wife leaving him once they got a tax bill of $175,000.'

That is palpably untrue and simply makes very clear the total absence of remorse in this situation.  The victim impact statements were read out in court with the victims present.  The situation is, putting it bluntly, that your former wife and your child are terrified of you and it is hard to escape the conclusion that you simply do not care.

So far as this threat to kill is concerned and the other matters involved, it is aggravated by the presence of both the children in the house.  They must clearly have been able to hear what was going on, the screaming, the shot, those sorts of matters.  It was a situation where you intended her to believe that you were going to kill her and in fact, she did.  You had the means and ability to carry out that threat in an instant and indeed fired a shot during the course of it all.  It is a, as I have already indicated, a very serious example of threat to kill.  One can always think of worse examples but in this particular situation, with the total absence of remorse, it is difficult to actually come up with one.

Gaol and significant gaol indeed is inevitable in this situation.  The matters were put on your behalf and a number of those I accept.  I accept that you were and had been for a period of time suffering from depression and anxiety. 
Your counsel agreed that the principles of Verdins were not enlivened by all this but I do take that into account insofar as the stresses that you yourself were undergoing.  I also take into account that your stepson is somewhat dependent upon you.  He has cognitive disabilities and you will undergo the sentence that I impose knowing that he will not be able to be cared for by you.  It is not suggested that that gives rise to exceptional circumstances but I certainly take it into account on your behalf.

You have certain physical illnesses as well as the anxiety and depression and again, I take into account that that will make gaol harder for you and as I have already indicated, the overall circumstances of Verdins are not enlivened. 
This is a very serious example of domestic violence and I do not think in need to take that much further.  It is fairly obvious to anybody, I would have thought.  I have taken into account all the medical material that has been tendered on your behalf, having gone through that over the last couple of days.

Tendered on your behalf was a report, as I have indicated, from Mr Kennedy, a psychologist and he says that you suffer from a major depressive disorder from at least your teens or early 20s on an intermittent basis.  He said that there likely have been personal vulnerability factors and there had been antidepressant medication, some clinical psychology treatment over the years.  He put your risk evaluation at low to moderate.  It is always difficult to understand but that is what it means in these circumstances and again, I accept the matters that he has put within that report.

In its entirety, he says that treatment is needed and says 'There's evidence of a long history of recurrent depression and anxiety with relationship discord and subsequent episodes of family violence and in addition, significant alcohol use, and possibly [he says] narcotic abuse or overdose which may have been accidental.'

He notes in that report in February of this year, you were hospitalised with acute hepatic failure involving an overdose of paracetamol of a very high order, so your counsel explained.  You also have had heart problems and that would appear to be under control and may well be associated with alcohol use.  Whether you were intoxicated on this particular night when this occurred, I do not know.  There does not appear to be any material before me in regard to that.

Taking all those matters into account and the other matters that were put on your behalf, the prospects of your rehabilitation are really going to be up to you.  The risk of you reoffending is described by the psychologist as moderate to low and the difficulty is that it is a situational thing.  If these circumstances arose again, there would be a real risk that you could conduct yourself in a similar way.

In the end, as I have said, a very significant custodial sentence has to be imposed for this and it must be one which reflects the denunciation of the treatment of a long-term partner like this in the presence of children.  It is nothing short of disgraceful.

In any event, taking all those matters into account, on the summary matters, three months aggregate to be served totally concurrently.  On the charge of possess a drug of dependence, one month to be served concurrently.  On the first charge of reckless endangerment, 18 months.  On the second charge of threat to kill, four years.  I direct that three months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed in Charge 2, which is a total effective sentence of four years and three months.

As I have indicated, I am concerned about the potential for double punishment, so the degree of cumulation is minimal.

I direct in these circumstances where there is potently no remorse, that you serve a minimum term of three and a half years before becoming eligible for parole.  I direct that two days be reckoned as having been served under this sentence.

Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty on all these matters, you would have been sentenced to be imprisoned for
six years with a minimum term of four and a half years.

Are there any orders I have to make?

MS WATSON: Your Honour, I understand they were made on the last occasion and there is the forfeiture and the disposal orders as well as the s.464.

HIS HONOUR:  Have I done the 464 yet?

MS WATSON:  I do not believe so.

HIS HONOUR: No, all right. Pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, if you refuse to provide such a sample, police may use reasonable force to take it from you.

All right, no other orders?  You can take him now, thanks, gentlemen.

(Prisoner removed.)

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