Director of Public Prosecutions v Taylor
[2022] VSC 598
•7 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT GEELONG
CRIMINAL DIVISION
S ECR 2021 0205
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| BRADLEY JAMES TAYLOR | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Geelong |
DATES OF HEARING: | 9 and 19 September; 3 October 2022 |
DATE OF SENTENCE: | 7 October 2022 |
CASE MAY BE CITED AS: | DPP v Taylor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 598 |
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CRIMINAL LAW – Murder – Plea of guilty – Sentence – Violent stabbing after application of blunt force to victim’s face – Combination of drug-induced psychosis and moderate personality disorder – Offender newly acquainted with victim – Whether principles in Verdins enlivened – Daylia Brown v The Queen [2020] VSCA 212 – General deterrence – Specific deterrence – Standard sentence offence – Brown v The Queen [2019] VSCA 286 – Sentenced to 23 years’ imprisonment with non-parole period of 17 years – Crimes Act 1958 s 3 – Sentencing Act 1991 s 5(2)(ab).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr David Glynn | Office of Public Prosecutions |
| For the Accused | Mr Jason Gullaci | Stary Norton Halphen |
HIS HONOUR:
Introduction
Bradley James Taylor on 9 May 2022, in this Court, you pleaded guilty to one charge of murder, being the murder of Christopher Kennedy. That offence occurred on 17 June 2020 at Norlane near Geelong in Victoria.
On 9 September 2022, in Geelong, I heard the prosecution opening in relation to the circumstances of your offending, received a victim impact statement from Kym Robertson and heard submissions on your behalf as to the sentence that I should impose on you. I also heard a reply on those issues from the prosecutor.
There was a further hearing of the plea in Melbourne on 3 October 2022 when forensic psychiatrist , Dr Pandurangi, gave evidence on the issue of your mental health at the time of offending and its link (if any) to your actions in killing Mr Kennedy.
The maximum penalty for murder is life imprisonment[1] and murder is a standard sentencing offence under s 5(2)(ab) of the Sentencing Act 1991. That section provides that a court must have regard to the standard sentence, if any, for the offence, whilst s 3(2)(b) of the Crimes Act 1958 is the section which states that the standard sentence for this offence is 25 years.
[1]Crimes Act 1958 (Vic) s 3(1).
It is now my responsibility to sentence you for this offence.
Circumstances of the offending
The first thing to note is that at the time of this incident you were using very high levels of methylamphetamine. Your counsel noted that you told the forensic psychiatrist that you were using two points of that drug daily, in the lead-up to this offending. Two points of this drug is 0.2 grams.
The deceased man, Christopher Kennedy, lived in a unit in Iona Street, Norlane. You at the time were homeless. Until the day of his death, you and Kennedy were unknown to each other. He had a friend named Adam Lee who visited Kennedy’s premises on 12 June 2020 and stayed there until 17 June 2020. That was something Mr Lee regularly did from time to time.
On 17 June 2020, the day of his death, Kennedy went to the Labuan Square shopping centre, which is near his unit, to make some purchases and then went home. He then commenced to drink alcohol while he and Lee watched television together.
At about 2.00pm Kennedy attended an appointment at a tattoo parlour which was also in the same shopping centre and obtained a tattoo. Lee was present and afterwards they returned to Kennedy’s unit.
At some stage after that, you and a man named Damien Betts went to Kennedy's unit. Before you went to Kennedy’s unit you were at a social gathering less than 500 metres from the unit. You were observed by a witness Jamie-Lee Wills to be asking for the phone numbers of paedophiles who lived in the area because you apparently said you wanted to bash someone. Without warning you kicked Wills to the head and after doing that you were ejected from the gathering.
It is not clear how you and Betts then came to be at Kennedy’s unit, but by all accounts, you were made welcome and while you were there alcohol was consumed and cannabis was smoked by everyone. Lee recalls that you were behaving very strangely and exhibiting what were described as some physical tics. Your behaviour was making Lee feel very uncomfortable.
At some stage the deceased man agreed to lend Betts some money to buy methylamphetamine and handed over some kind of a bank card. Lee and Betts went to Labuan Square again and Lee withdrew money using the card, but also called his partner from a payphone and told that person he did not feel safe where he was.
Lee returned to Kennedy’s unit, but Betts left. Lee left approximately twenty minutes after but before he departed he observed that you were flailing your arms around, were animated and moving fast. You were not showing any hostility towards Kennedy, but from about this point onwards you and Kennedy were alone in the unit.
Between 7.30pm and 8.00pm loud noises were heard coming from Kennedy's unit by a neighbour. The neighbour heard a voice, which was Kennedy's, shout ‘fuck off and don't come back’. At around this time the Crown say you assaulted Kennedy by the application of blunt force to his face, causing lacerations to the left eye and cheek and fractures to the nasal bones and left zygoma. It is also likely that you knelt on Kennedy’s, chest causing rib fractures on both sides of his body. In addition to that, there were eleven stab wounds to Kennedy’s right upper chest with an unknown edged weapon. Six of those wounds penetrated Kennedy’s right lung.
According to the post-mortem report, those wounds were the cause of his death. The wounds were clustered and had the same orientation on the skin. In the opinion of the pathologist, this suggests that Kennedy was incapacitated at the time they were inflicted by his head injuries, his intoxication or some combination of the two. Kennedy had a significant amount of alcohol in his system. The pathology report noted: [2]
The arrangement of the stab injuries to the chest could be described as monotonous, because they were somewhat clustered and were placed in the same orientation on the skin. This pattern can be seen in the scenario of self-inflicted wounds, or in the scenario of injuries delivered by a third party to an incapacitated person (restrained, intoxicated or unconscious). Infliction by a third party is favoured due to the context of additional blunt force injuries and the presence of the plastic bag over the head. Concussive effects of head injuries and drug and alcohol intoxication are both potential explanations in this case for incapacity.
[2]Autopsy report of Dr Melanie Archer of the Victorian Institute of Forensic Medicine dated 8 November 2020, filed 16 September 2021, Depositions 372, [4].
For a somewhat bizarre reason, you also tied a plastic bag around Kennedy’s head, which might ordinarily have caused asphyxia, but the stab injuries were fatal to Mr Kennedy by themselves. Before you left Kennedy’s unit, you covered him with a doona and for some reason which is not clear, turned on the gas jets on the stove without lighting them.
Kennedy’s body was discovered by a community health nurse at about midday the following day. She entered the premises through the unlocked front door and could smell the gas. She lifted the doona and saw Kennedy, but did not recognise him because of the plastic bag over his head. She left and called ‘000’, after which police attended and then commenced their investigation.
Lee and Betts were arrested on 18 and 20 June 2020 respectively, and both gave police their accounts of what had occurred. They were both released without charge. You were arrested on 21 June 2020, having been identified by the presence of a fingerprint at the scene. You gave police a false account that you had been drinking with Kennedy, Lee and Betts. You said you believed Kennedy was a paedophile and that he had told you he had a sexual interest in children. At that stage you denied killing Kennedy and you were also released without charge by the police. Your attempt to avoid responsibility is, itself, some evidence that whatever issues you were dealing with, you at least had the presence of mind to attempt avoid the consequences of your conduct by lying.
It is important to note at this stage that it was made clear by both the prosecution and by counsel on your behalf that Kennedy was not a paedophile. Also, it is accepted by all concerned that he did not say he was in conversations with you on the day this incident occurred. Your statements about this may be a product of your delusion which, in turn, was a product of your drug-induced psychosis or simply an attempt at some level of justification for your actions. I will return to this topic shortly.
Two days later, on 23 June 2020, after obtaining the results of early DNA analysis, you were arrested by police and charged with murder. You were then remanded in custody where you have remained since that date.
On 30 July 2021 in the Magistrates’ Court, you were committed to stand trial in this Court on the charge of murder. Your legal advisors made various enquiries which were aimed at establishing whether or not you had the defence open to you of mental impairment at the time of committing this offence. Ultimately, they established, through the opinion of forensic psychiatrist Dr Pandurangi, that you did not and on 9 May 2022 you were arraigned and pleaded guilty to the charge of murder.
The circumstances of this offence are both tragic and futile. Your conduct amounts to unprovoked extreme fatal violence. The violence was probably spontaneous, but in its own way it was systematic, with blows to the deceased and savagely inflicted stab wounds after Mr Kennedy had lost consciousness. As your counsel rightly conceded, this is a significant example of the most serious offence in the criminal law.
Victim Impact Statement
I received a victim impact statement from Kym Robertson, who is the sister of the deceased man. That statement was read to the Court by the prosecutor. In a brief but poignant passage she described the way she is now haunted by the thought of her brother’s death. That distress and the change to her life as a result of what you did will be long lasting. I wonder whether you have any concept of the tragic effect of your actions. Apart from imposing an appropriate sentence on you, there is nothing else the Court can do to alleviate the effect of your actions on Ms Robertson and others close to the family and friends of Mr Kennedy. I have taken the statement of Ms Robertson in account in deciding the sentence I will impose on you.
Personal circumstances
I come now to your personal circumstances. They may assist in understanding why this offence occurred. Your circumstances tell an all too familiar story about a life that has been almost destroyed by various influences including drugs.
You were born on 18 November 1984 and are therefore 37 years of age. You have been assessed as having a full scale IQ of 73, which is in the borderline range. You were raised in the Geelong area. Your education finished at the age of 14, after which you worked in a grain mill, a cattle station and an abattoir until you were injured at work at the age of 24. You were seriously injured when lifting an animal in the abattoir, dropping it and trying to recover and seriously injuring your back. You were on WorkCover for about five years. That ceased and you became unemployed.
According to your counsel, you never worked meaningfully since your injury. Your criminal offending began during that time, coupled with increasing and significant drug use, a lack of stable accommodation and four periods of imprisonment.
You have a substantial history of drug use, beginning with cannabis as a teenager and progressing to various other drugs including methylamphetamine in your twenties. Your drug use was made much worse by your workplace injury.
The Court has received a report from Dr Matthew Barth which reports that you have used methylamphetamine at hazardous levels until your arrest. Your drug use has had what Dr Barth described as a severe impact on your life with a range of symptoms associated with drug-induced psychosis. They have included auditory hallucinations, persecutory delusions, referential delusions and tactile hallucinations. You apparently told Doctor Barth that these symptoms were particularly prevalent in the lead up to your current offending.
You have previous convictions for criminal offences dating back to 2008. Mr Gullaci took me through those convictions in some detail and I will return to his submissions about those shortly. The convictions include burglary and associated offences in 2008 and burglary and theft again in 2009. In 2012 there were a number of offences including burglary and theft, failing to answer bail and recklessly causing serious injury, for which you were sentenced to a period of imprisonment which was wholly suspended.
In 2013 you were sentenced for armed robbery and attempting to pervert the course of justice, for which you received a total effective sentence of six years and six months, with a non-parole period of four years and nine months. There was then a gap of some seven years until 2020, when you were convicted of a variety of offences of dishonesty, including burglary and theft and then later theft of a motor vehicle. Once again you were sentenced to a period of imprisonment. For present purposes this criminal history is relevant.
Your first period of imprisonment was on 7 December 2012, and then on 24 April 2013 you were dealt with for three counts of armed robbery and a count of attempting to pervert the course of justice, for which you received a total effective sentence of six years and six months and a non-parole period of four years and nine months. Your parole was satisfactorily completed. You were then imprisoned on 7 January 2020 and 30 March 2020 for periods of 182 and 75 days, respectively, but at the time of each of those sentences the time had been served. You were released back into the community on 31 March 2020; about two and a half months before this offending occurred. You were without any supports or assistance, and you were homeless when you committed this murder.
Clearly, the combination of the injury you suffered, your accelerating drug use and then criminal offences, including imprisonment, derailed your life. As became clear there is also a mental health issue mixed into these circumstances.
Mr Gullaci made the submission, which I accept, that when there is a support structure and supervision, you have demonstrated that you are capable of complying with the rules. He made that argument in support of a longer than usual period of parole.
Mental state and applicability of Verdins principles
During the course of the plea, Mr Gullaci examined, in some detail, the reports which have been obtained from both psychiatrists and psychologists concerning your mental health. I have already mentioned the report of Dr Barth. Reports were also provided by Martin Jackson (Clinical Neuropsychologist) and two reports from Dr Pandurangi (Forensic Psychiatrist). Dr Pandurangi’s reports were originally aimed at the issue of mental impairment as a defence. He later gave evidence regarding the applicability of Verdins and specifically your personality disorder, as well as whether a causal relationship or nexus existed between your personality disorder and your offending. That evidence was given at the most recent hearing on 3 October 2022.
As Mr Jackson outlined:[3]
Mr Taylor has a mental health history dating back to approximately 2009 and has been diagnosed as having bipolar disorder, PTSD (according to him), and drug induced psychosis. He has had multiple presentations to hospital, as well as psychiatric inpatient admissions and has been treated primarily with medication. He still reports some ongoing tactile hallucinations (cobwebs on his face, a pressure feeling coming out of his head), but otherwise did not report any psychotic symptoms. He reported being depressed an upset and anxious about everything. Clinically, Mr Taylor presented as somewhat depressed, as well as having some generalised agitation and restlessness consistent with stress/anxiety, although he did not decompensate. There were no other psychotic symptoms other than those he describes. There was no evidence of a behavioural disorder (low frustration tolerance), poor impulse control, or poor anger management. On formal questionnaires, he reported symptoms suggestive of extremely severe depression, anxiety, and stress.
[3]Neuropsychological report of Dr Martin Jackson dated 23 January 2022, filed 6 September 2022 14, [8].
In summary, as I understand it, the psychiatric conclusion about your conduct in committing this offence is that you were acting as a result of a drug-induced psychosis and that was the conclusion reached by Dr Pandurangi. As I follow it, the prosecution accepts that to be so. The other expert reports agree with that conclusion.
At the conclusion of the plea, that is where the matter stood. Your counsel’s argument was, effectively, that your drug taking was not mitigatory but it was explanatory of why you acted as you did. As to whether it was an aggravating factor, Mr Gullaci submitted:[4]
He clearly should have had foresight of the fact that should he use methylamphetamine he was in fact susceptible to a drug-induced psychosis but not, in my submission, on notice of the foresight that he would have the capacity to act this violently and this brutally because that is not something that his past behaviour bore out when he was experiencing drug induced psychosis.
As I understand it, the prosecution also accept that.
[4]Transcript of proceedings, Director of Public Prosecutions v Bradley Taylor (Supreme Court of Victoria, S ECR 2021 0205, Lasry J, 9 September 2022) 39, lines 8-15.
However, on further consideration of the matter I noted that in his report of March 2021 Dr Pandurangi said:[5]
The impact of the experiences during his formative years and early adulthood, meant that, as he grew older, he unfortunately develops a range of entrenched and somewhat inter-related deficits in personality functioning. He displays deficits in sense of his identity and self-direction. He also had significant problems in interpersonal functioning characterised by problems in understanding perspective of others, relationship difficulties and an inability to deal or resolve conflicts in relationships or otherwise. In addition, he displays emotional dysregulation, poor coping mechanisms, impulsive behaviours and lack of consequential thinking. These difficulties have been persistent, pervasive and problematic for him in various areas of functioning, even outside of his contact with the criminal justice system. In my view, he would be diagnosable, with a Moderate Personality Disorder (International Classification of Diseases 11th Revision ICD-11 6D10.1) with prominent borderline (6D11.5) and disinhibition (6D11.3) pattern.
[5]Forensic psychiatric report of Dr Prashant Pandurangi dated 19 March 2021, filed 6 September 2022 20, [67].
In the footnotes to that passage, Dr Pandurangi described the ‘prominent borderline’ as having a core feature of pervasive pattern of instability of interpersonal relationships, self-image, marked impulsivity and emotional dysregulation and the ‘disinhibition’ having the characteristic feature of impulsive behaviours, irresponsibility, lack of planning and consequential thinking.
The doctor continued, linking the consumption of drugs to your mental state:[6]
He would be diagnosable with polysubstance use disorder, mainly involving methamphetamines, opiates and cannabis, which are currently in remission in a controlled environment. He has reportedly misused other illicit drugs such as hallucinogens and cocaine but denied regular use of these substances. The chronic and heavy use these drugs, was not only for recreational use, but likely for mediation his underlying distress emanating emotional dysregulation, poor coping and stress.
[6]Ibid, [69].
Bearing in mind the diagnosis of a moderate personality disorder, the question arises as to whether the principles arising from the judgment of the Court of Appeal in Verdins[7] have any application. If they do then I must take into account your impaired mental or intellectual functioning. That may arise from illness, injury, disability, or disorder, whether permanent or temporary, mild or severe, newly acquired or longstanding and whether the impairment existed at the time of the offending or at the time of sentencing.
[7]R v Verdins & Ors [2007] VSCA 102.
In the recent judgement of Brown [2020],[8] the Court of Appeal concluded:
An offender diagnosed with a personality disorder should be treated as in no different position from any other offender who seeks to rely on an impairment of mental functioning as mitigating sentence in one or other of the ways identified in Verdins.
[8]Daylia Brown v The Queen [2020] VSCA 212, [6].
In his evidence on the resumed hearing on 3 October 2022, Dr Pandurangi said:[9]
Mr Taylor’s kind of position, what he was in at the time, his life circumstances, the chaos in his life, the itinerancy and - and the drug use and what put him in that situation was significantly connected to his personality disorder where the circumstances he found himself in, ah, was linked to his personality disorder. The causal connection at the time of the offending was more to do with, um, his amphetamine use and his state of mind at the time and what he believed about the victim. I think that was more causal than the personality disorder.
[9]Transcript of Proceedings, Director of Public Prosecutions v Bradley Taylor (Supreme Court of Victoria, S ECR 2021 0205, Lasry J, 3 October 2022) 10, lines 11-21.
I think that passage summarises Dr Pandurangi’s overall position. You have suffered from a moderately serious personality disorder which is linked to all the other issues in your life, including the use of methylamphetamine. However, it is the drug taking which has had the most pronounced effect on your recent years and played the greatest role in causing you to act with the violence that you did.
The approach I take in this matter is intended to deal with the somewhat binary nature of the application of the Verdins principles. All of the matters which have been outlined about your history, I have taken into account. Your perceived mental health issues and personality disorder, as diagnosed by Dr Pandurangi, are all part of a mosaic that has led to your life imploding and has also led to your offending, in this case in a terrible and violent manner. Your circumstances are explanatory of why what occurred did occur. I do not think Dr Pandurangi can underpin the Verdins principles to any greater extent than that. I take the view however that your moral culpability remains at a high level. I also take the view that both general and specific deterrence are significant sentencing factors in this case. The community are entitled to be protected and will be appalled by the violence in this case and the need to demonstrate that significant punishment awaits those who perpetrate it is present. So far as specific deterrence is concerned, you need to understand that when you are released eventually you must do whatever can be done to avoid further conduct of this kind. You simply must get your drug issues under control whilst in custody. There will be no further chances. Your prospects of rehabilitation are entirely dependent on you resolving your drug issues. If you do, they are reasonable.
As far as your mental health affecting your time in custody is concerned, Mr Gullaci accepted that you are going reasonably well in custody and there is no suggestion that you are going to find gaol more onerous or that your condition will deteriorate.
Remorse and plea of guilty
There is some evidence of remorse on your part. In the report of Mr Jackson, he states that you now realise that you killed a man in the context of your mental health and substance intoxication and that you did appear to be genuinely sorry for what you had done.
As I have earlier described, the only reason for the delay in this matter being finally resolved was so enquiries could be made to establish whether you had a defence to the charge of murder based on a diagnosed mental impairment. That was a legitimate forensic step for your lawyers to take. When it became apparent that you did not, you pleaded guilty to the charge of murder.
Pleading guilty to murder is a significant step. It guarantees that you will be sentenced to a lengthy prison sentence. There is no more effective way to take responsibility for your actions than to plead guilty to this charge. The utilitarian value of your plea is significant, and you are to receive credit for that.
Conclusion
This is a terribly sad case. Primarily, it is sad because the man who lost his life in most violent circumstances had done nothing either to deserve the treatment you inflicted on him and certainly nothing to provoke it. He had simply been generous. On top of that his family have had to deal with not only his loss, but to defend him against the completely empty allegation that he was somehow sexually interested in children. It is clear that is simply not true. I have already referred to the victim impact statement. This is yet another tragedy that could so easily have been avoided.
This case is also another example of the tragedy of the failure of the community to understand and deal with the scourge of methylamphetamine addiction. Your consumption of this drug brought about a violent psychosis. We, as a community, are simply not doing enough to remedy or improve the problem created by this drug. The widespread use of methylamphetamine is not a law enforcement problem alone. There is only so much that police can do. It is often the case that publicity is given to large-scale police seizures of methylamphetamine. That is good, but it clearly is not enough because despite the activities of state and federal police forces, the widespread use of methylamphetamine continues.
This is a social problem as well and perhaps even a political problem. Governments must do more. They must spend more money on facilities which can either cure or prevent the chronic over-use of methylamphetamine. The effect of methylamphetamine seems to me to be evident in almost every case I have tried in recent years. It seems to me to be a most difficult drug to escape from and many like you simply give up and go with the addiction and suffer the appalling consequences which affect your victim, their family, you and the community more broadly. There is often talk about the expectations that the community has of its judges. Well, this judge has an expectation of the community. In my opinion, the community has an obligation to do something more about this problem and at the moment the community is failing in that obligation.
You were completely overtaken by your addiction and your offending in this case is directly linked to that and the effect of the drug on your mental state.
It is accepted by the Crown that you did not have an understanding that if you consumed methylamphetamine you would likely engage in very violent behaviour. That was an appropriate concession since it seems to me that your self-awareness is under-developed.
Standard sentence
Murder is an offence within the regime of standard sentencing and the standard sentence for the offence is 25 years’ imprisonment.
In Brown [2019], the Court of Appeal said:[10]
[10]Brown v The Queen [2019] VSCA 286, [4].
For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
(i) is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
(ii)does not affect the established ‘instinctive synthesis’ approach to sentencing;
(iii) does not require or permit ‘two-stage sentencing’; and
(iv)does not otherwise affect the matters which the court may, or must, take into account in sentencing.
I have taken the standard sentence into account. As will be seen, the sentence I impose on you is below the standard sentence even although the objective gravity of your offending was high. I have done that for the reasons that I have outlined in these reasons and which explain why this sentence is less than the standard sentence.
Sentence
On the charge of murder, you will be sentenced to be imprisoned for a period of 23 years. I direct that you serve a minimum of 17 years before becoming eligible to apply for release on parole.
I declare that your pre-sentence detention is 836 days, not including this day, and I direct that period be reckoned as time already served pursuant to s 18 of the Sentencing Act 1991.
Pursuant to s 6AAA of the Sentencing Act 1991 I declare that had you not pleaded guilty to this offence, I would have sentenced you to a period of 27 years’ imprisonment with a minimum term of 22 years.
Pursuant to section 78(1) of the Confiscation Act 1991, I make the disposal order sought by the prosecution and not opposed on your behalf.
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