DPP v Kelly
[2000] VSC 186
•3 May 2000
| SUPREME COURT OF VICTORIA |
| CRIMINAL JURISDICTION |
No. 1483 of 1999
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND JOHN KELLY |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF SENTENCE: | 3 May 2000 | |
CASE MAY BE CITED AS: | DPP v Raymond John Kelly | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 186 | |
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Criminal law – Sentencing – Intentionally causing serious injury – False imprisonment – Female victim shot at home – no history of domestic violence – Considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Carlin | Office of Public Prosecutions |
| For the Accused | Mr C.L. Lovitt QC | Melesecca Zayler |
HIS HONOUR:
Mr Kelly, you have pleaded guilty before me to intentionally causing serious injury to Ms Pamela Neill at Dandenong on 28 November 1998. You have also pleaded guilty to false imprisonment at the same time and place of Mr Kyle Sikora. At the time, Mr Kelly, you were 43 years of age, having been born on 19 August 1955. You are now 44 years of age. Ms Neill was 40 years of age when you seriously injured her on 28 November 1998.
You had met Ms Neill some year and a half earlier at a Coffin Cheaters party and you and she commenced a relationship which had in a substantial form been in existence for a year at the time of the offence against her. She had been living at the premises where you shot her, at David Street, Dandenong, for some six years prior to the incident. You were living nearby at Narre Warren. You did not live at David Street, Dandenong during the relationship, but you frequently stayed there overnight, often for three or four nights a week. In late 1997 a boarder, Mr Sikora, came to live at the David Street premises, in a separate room from that of Ms Neill.
You were totally devoted to Ms Neill, but unfortunately the relationship foundered in the week leading up to Saturday, 28 November 1998. On Friday night at the flat you and she had a difference over what you perceived to be infidelity by her with the boarder. You were most distressed and you left the premises.
On the late Saturday afternoon, 28 November, you attended at the Albion Hotel, Dandenong, where Ms Neill was with Mr Sikora, and you there assaulted Ms Neill. Then that night you attended at the flat at about 9 p.m. You were overwrought, intoxicated and angry. You found Ms Neill and Mr Sikora there. You went outside to your car and returned with a sawn-off .22 rifle and ammunition and other items. You there threatened them both. You loaded bullets into the gun. At gunpoint you ordered Mr Sikora into his room and then into Ms Neill's room. Ms Neill tried to ring for help but you prevented her doing so. You then threatened her and ordered her into her bedroom but she stood her ground and refused. You aimed the rifle at her. You then shot her at close range from behind. You fired one further shot at least, if not two - it matters not - at her. She managed to flee the premises and you yourself left the premises. You drove home to Narre Warren while an ambulance had to be called for Ms Neill by a next door neighbour.
You were apprehended shortly before 10 p.m. that night at your home in Narre Warren. The sawn-off rifle was in the boot of your car. You were taken to the local police station where, after formalities, at interview you declined to answer questions upon legal advice. You were charged with attempted murder and related charges. The weapon, a cut down .22 repeater rifle, was later tested and found to operate under normal pressure and to require deliberative action to operate and fire. The safety catch was ineffectual.
The victim, Ms Neill, was removed by ambulance and taken to the emergency department of the Dandenong Hospital. She had been shot in the left buttock. Upon x-ray and then exploratory surgery, a sizeable metallic fragment was found near the left ischial bone, its path close to the left sciatic nerve. Mr Donald Kemp, surgeon at the Dandenong Hospital operated on Ms Neill, removed the bullet, and repaired the damage as far as possible. In his report of 9 February 1999, Mr Kemp stated that had it not been for the presence of the ischial bone, the bullet may well have penetrated the victim's rectum. Ms Neill was discharged from hospital on 3 December 1998. Treatment was then taken over by Dr Thomas Ngai of Dandenong, commencing on 4 December 1998, which continued by him until 13 July 1999 when Ms Neill left the area. It is apparent from Dr Ngai's report of 29 September 1999 that the injury you inflicted has caused severe pain and considerable physical disability to the victim. It also, not unexpectedly, has caused her severe psychological trauma. At July 1999 Dr Ngai considered that the victim will require medical treatment for a "long period of time". She has a permanent indented scar on her left buttock. Her victim impact statement (filed today) spells out that which one would otherwise expect, namely, her severe trauma from being shot in her own home at close range. I have read the reports of Ms C. Crutchfield, psychologist, of 28 July 1999, and Mr David Zuker, physiotherapist, of 1 August 1999, both exhibited before me concerning Ms Neill. They demonstrate the severe trauma and ongoing physical difficulty your actions have caused the victim.
You, Mr Kelly, are now 44 years of age. You have 22 prior convictions for relatively minor matters between June 1973, when you were 17 years of age, and January 1986, when you were 30. The nature of those prior convictions demonstrates your continuing problem with alcohol over the years. All your prior convictions except two were in the Magistrates' Court; that exception of two occurred in the County Court in September 1978 and did not involve violence. Only two Magistrates' Court convictions - in September 1976 - were for violence (assault) and they were of a limited type. Your last prior conviction was January 1986. Given that significant lapse of time, over 14 years, which stands significantly to your credit, and the nature and level of the convictions, I consider I should now regard you as a person with no relevant prior convictions and I do so.
Mr Kelly, you left school at 15 years of age, having completed Form 2 at a local high school. A report of Mr K. Dungey, psychologist, of 20 April 2000 states that your verbal IQ was assessed at 91. I would expect your overall IQ would be slightly higher than that as the performance IQ was not formally tested on the W.A.I.S. Scale. You have worked over the years, not without difficulty. You have devoted yourself to caring for members of your extended family and also devoted yourself to various other persons through local organisations. A series of witnesses was called before me whom I found most impressive. Singly and together their evidence demonstrates the significant and considerable work you have put into caring for other persons. You are not a person who is self-centred. You have had an afflicted life in a number of unfortunate respects which were eloquently canvassed by your counsel Mr Lovitt before me. You have had a personal and financial struggle over the years, affected significantly by excessive intake of alcohol; indeed by a condition of alcoholism over many years. Your relationship with Ms Neill was characterised by alcoholism as well. Significantly and relevantly, you were devoted to your brother Brian who died in October of 1998, a month prior to these incidents. You had cared for your brother for some 6 months prior to his death in Melbourne, he having come from Darwin, and you were affected by his death as you were devoted to him. No doubt the affliction of your brother's loss made you emotionally even more vulnerable in November 1998, but it does not excuse your conduct.
Evidence before me of Mr Joseph Lamberti, together with his report dated 19 April 2000 exhibited before me, establishes that you have suffered alcoholism over many years and, significantly, that you have made very substantial efforts with Mr Lamberti's assistance to reform from your alcoholism. Your efforts to reform yourself speak very well of you and stand significantly as a harbinger of your rehabilitation.
At the Melbourne Magistrates' Court, at the conclusion of a three-day committal on 16 July 1999, as appears at p.279 of the depositions, you pleaded not guilty to attempted murder and said "I'm willing to a plea of intentionally causing serious injury when a factual agreement has been reached between the prosecution and my lawyers". At the arraignment before Vincent, J. on 1 November 1999 you pleaded guilty to recklessly causing serious injury but not guilty to intentionally causing serious injury. In all the circumstances I consider that I should proceed upon the basis that you have been prepared to plead guilty to intentionally causing serious injury from the earliest practicable opportunity, and I so conclude. Further, your plea betokens genuine remorse for your crime and remorse for the victim and for the consequences you have caused, not just for yourself. That remorse is characteristic of your general demeanour towards and concern for other people rather than for yourself. Further, for the reasons I have stated, by reason of your own efforts you have excellent prospects for rehabilitation and that is reflected in the direction I propose to make of a significantly longer period of parole available to you than otherwise I would have directed.
However, the shooting of Ms Neill at close range was, objectively, highly dangerous. She has both physical and psychological injuries. The physical injuries are disabling and painful. The psychological injuries are severe, and understandably so. Fortunately, Ms Neill's injuries are much less severe than they might have been. The bullet, as the surgeon has stated, could have entered the rectum. Indeed, it was not far from the spine. At least two shots were fired by you. Just as the actual injuries inflicted in a terrible case must not be weighed to the whole exclusion of other factors (see R v. Mallinder CCA, unreported, 27 August 1986, per Murray, J. presiding, at p.3 and Vincent, J. at p.20 - see however, O'Bryan, J. at p.15) so too the good fortune here that the actual injuries are of lesser gravity than they might have been has significant but not exclusive relevance. That is, the good fortune that this victim's injuries are of limited gravity is not the end of the matter. Intention (here, your intention to cause serious injury) and the objective dangerousness of the action you took - firing a sawn-off rifle at the victim at close range - are significant matters to be weighed in the sentencing process. Also of significance in this case is the element of general deterrence. It is an important function of the criminal law in sentencing to reinforce that the law firmly sets its face against domestic violence - and that men who use guns to solve their emotional and personal problems will be appropriately punished.
There are a number of aggravating factors in the count of causing serious injury to Ms Neill. First, the crime was deliberate. You entered the premises with a sawn-off rifle and with ammunition. Second, the shooting was in the home of the victim - where she should have been entitled to protection, not danger. Third, your actions in shooting her at close range and aiming at her with a loaded rival and firing it were, objectively, highly dangerous.
There are also a number of factors in your favour. You have pleaded guilty and for all practical purposes have always been prepared to plead guilty to this charge. Further, you have significant remorse for your offences as demonstrated not only by your plea of guilty, but your general character. Next, you have no relevant prior convictions. Next, you have the benefit of an impressive body of character evidence and you have excellent prospects for rehabilitation. Finally, and most importantly, there is no history of violence by you towards Ms Neill. That factor I regard as of especial importance and is one which distinguishes you from many other persons who come before this court.
The charge of false imprisonment in relation to Mr Sikora is of itself not a minor matter, but as the matters all occurred at one time and with the one causal pathway, I consider that the sentence to be imposed in relation to the false imprisonment should be wholly concurrent with the sentence to be imposed in relation to intentionally cause serious injury.
You have served 54 days of pre-sentence detention and pursuant to s.18(4) Sentencing Act 1991, I declare that period of 54 days as already served under the sentence I impose, and I so certify.
By reason of the highly dangerous conduct which you deliberately undertook in the home of Ms Neill, it is necessary that a term of imprisonment is imposed upon you, to be served by you.
Mr Kelly, on Count 2, intentionally causing serious injury to Ms Neill, I sentence you to five years' imprisonment.
On Count 4, false imprisonment of Kyle Sikora, I sentence you to one year's imprisonment. I direct the that whole of that sentence of one year be served concurrently with the sentence on Count 2, making a total effective sentence of five years' imprisonment.
In particular because of your excellent prospects for rehabilitation and your work already in that regard, I direct that you serve a minimum term of two years' imprisonment before being eligible for parole.
Mr Kelly may be removed. Sine die.
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