Kelsall v R

[2017] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Kelsall v R [2017] NSWCCA 240
Hearing dates:	21 August 2017
Date of orders:	06 October 2017
Decision date:	06 October 2017
Before:	Price J at [1]; Bellew J at [85]; Hamill J at [86]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – murder – whether sentencing judge erred in the assessment of the applicant’s prospects of rehabilitation – whether error in the sentencing judge’s assessment of a psychiatric condition – whether error in the sentencing judge’s findings that the offence was committed for no reason other than to serve some irrational purpose known only to the applicant and there was no conclusive explanation for the applicant’s heinous conduct – whether sentencing manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW), s 61L Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases Cited:	Cramp v R [2016] NSWCCA 305 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Huynh v R (2008) 188 A Crim R 287; [2008] NSWCCA 216 King v R [2015] NSWCCA 99 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v Kelsall [2015] NSWSC 480 R v Nakash [2017] NSWCCA 196 Vandeventer v R [2013] NSWCCA 33
Category:	Principal judgment
Parties:	Daniel Jack Kelsall (Applicant)  Regina (Respondent)
Representation:	Counsel: Mr B Hughes SC, Ms M Curry (Applicant) Ms S Dowling SC (Respondent)   Solicitors: Mr R Funston – Legal Aid NSW (Applicant) Mr C Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/302108
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law – Criminal Citation: R v Kelsall [2015] NSWSC 480 Date of Decision: 29 April 2015 Before: R A Hulme J File Number(s): 2013/302108

Judgment

1. PRICE J: Daniel Jack Kelsall (“the applicant”) was found guilty by a jury of the indecent assault and murder of Morgan Huxley at Neutral Bay on 8 September 2013.

2. The maximum penalty for indecent assault, being an offence contrary to s 61L of the Crimes Act 1900 (NSW) is imprisonment for 5 years. The maximum penalty for murder is imprisonment for life with a standard non-parole period of 20 years.

3. R A Hulme J (“the judge”) sentenced the applicant for the indecent assault to imprisonment for 1 year commencing from 8 October 2013, and for the murder to imprisonment for 40 years, comprising of a non-parole period of 30 years with a balance of term of 10 years commencing on 8 January 2014.

4. The overall sentence is 40 years 3 months. The earliest date that the applicant will be eligible to be released to parole is 7 January 2044.

5. The applicant seeks leave to appeal against the severity of the sentences upon the following grounds:

“Ground 1: The sentencing Judge’s findings as to the applicant’s prospects of rehabilitation were not supported by the evidence of Dr Adam Martin, Dr Pulman, Dr Saad, and Dr Nielssen.

Ground 2: The sentencing Judge erred in finding no special circumstances under section 44 of the Crimes (Sentencing Procedure) Act in order to reduce the proportion of the non-parole period to the head sentence.

Ground 3: The sentence imposed for murder was, in all the circumstances, manifestly excessive.”

Facts

6. The judge found the following facts: R v Kelsall [2015] NSWSC 480 at [3]–[20] (“Kelsall”):

“[3] Morgan Huxley, a 31 year old single man, lived in a two storey unit located on the ground floor of a unit complex in Watson Street, Neutral Bay, a short distance from Military Road. He shared the unit with his flatmate, Jean Redmond. Mr Huxley and Ms Redmond had separate rooms which were upstairs and adjacent to each other. He owned a company called Huxley Marine where he worked as a wharf engineer.

[4] The offender worked as a kitchen hand at the Sydney Cooking School which is located on Military Road, Neutral Bay, opposite The Oaks hotel. He lived with his parents in Spruson Street, Neutral Bay, less than 1.5 km away.

[5] The offender told a doctor in May 2012 that he had experienced intrusive (in the sense of recurring and persistent) thoughts about killing people with a knife on his way home at night. He said there was no real reason for it and he had not thought about the consequences. He said he had taken a knife home late one night but had not met anyone. The following month he told a psychiatrist that he had experienced thoughts about killing someone with a knife and that it would be ‘for the thrill of it. The victim would be someone he described as ‘a total random’. He said he had no idea why he had these thoughts and that he did not want to kill anyone.

[6] On the afternoon of 7 September 2013 Mr Huxley drove to Lane Cove to attend an engagement party for some close friends. He was at the party for a number of hours, drinking alcohol and socialising. At the end of the party, at around 12.30am, he and two friends caught a taxi to Neutral Bay. Mr Huxley got out of the taxi on Watson Street and walked alone, towards The Oaks hotel on the corner of Military Road and Ben Boyd Road for one last drink.

[7] The offender finished work in the early hours of 8 September 2013 and went to some take-away food shops on Ben Boyd Road opposite the hotel. He encountered Mr Huxley, who was a stranger to him, when he entered a convenience store to buy a drink and where Mr Huxley was attempting to use an ATM. They spoke briefly. The offender said in his evidence in the trial that he could smell alcohol but could not tell if Mr Huxley was drunk. He said he thought Mr Huxley was good looking but he did not find him ‘overly attractive’.

[8] The offender lingered on the footpath for the next half an hour or so chatting to a security guard. He saw Mr Huxley cross the road and attempt to enter the hotel via one entrance but he was turned away by security staff. He watched as Mr Huxley went back across Ben Boyd Road but then returned to the hotel and entered by a different door. The offender remarked to the security guard that Mr Huxley was not wearing shoes.

[9] CCTV footage showed Mr Huxley entering The Oaks hotel at 1:01am, drinking a beer, leaving at 1.28am, and walking in the direction of his home. The footage also showed the offender leaving his location in Ben Boyd Road a short time after Mr Huxley left the hotel. He followed Mr Huxley, at times breaking into a jog so as to catch up. He was immediately behind Mr Huxley as he crossed at the lights at the Military Road and Watson Street intersection. It was not captured on camera but I am satisfied that the offender followed Mr Huxley on his short walk along Watson Street to his ground-floor unit and observed him entering the unit.

[10] Ms Redmond gave evidence of hearing Mr Huxley come home and go to his bedroom at about 1.30am. She tried to get back to sleep. The next thing she heard was what she thought was a knock on the front door but she was not sure. She then heard a second and louder knock. I think it is reasonable to infer that this was the offender knocking, probably not realising at that point that the door was unlocked. (Mr Huxley was in the habit of leaving his front door unlocked.) Ms Redmond chose to ignore the knocking, assuming that it was a friend of Mr Huxley's, and tried to get back to sleep. I am satisfied that the offender must have tried the door handle, found it was unlocked, and then entered.

[11] After entering the unit, the offender went upstairs where he found the deceased lying on his bed either asleep or incapacitated by alcohol. He stabbed Mr Huxley repeatedly in his back, head and neck with a knife that I am satisfied he had been carrying in his bag. Mr Huxley must have been alert to what was happening as he sustained some defensive wounds. The offender also pulled down Mr Huxley’s shorts and in some fashion touched his penis. The parties agree that the indecent assault preceded the stabbing.

[12] The offender left Mr Huxley’s apartment and returned to his home in Spruson Street, Neutral Bay. He disposed of the knife at a time and place unknown.

[13] The next thing Ms Redmond heard was at about 2:30am. She heard some shuffling around in Mr Huxley's room and noises she likened to the scratching of chalk on a blackboard. There was a fall or a thump and some mumbling noises. She then heard snoring noises, but they were louder than what she thought would be normal. This continued for about 5 minutes so she decided to get up and investigate. She found Mr Huxley covered in blood and with a stab wound to his neck, lying on the floor in the doorway of his bedroom. His shorts were pulled down exposing his penis.

[14] The noises Ms Redmond heard must have been caused by Mr Huxley getting up from where he had been stabbed on his bed, shuffling towards the doorway and then collapsing. He would have been struggling to breathe.

[15] Ms Redmond attempted to perform CPR until ambulance officers arrived. The officers observed a large puncture wound to the neck and a number of stab wounds on the torso, upper arms, back and head. There was also a significant amount of blood on the bed. Mr Huxley was taken to Royal North Shore Hospital but was pronounced dead shortly after arrival.

[16] An autopsy examination determined that Mr Huxley had died as the direct result of multiple stab wounds inflicted by a sharp knife. The forensic pathologist was able to identify more than 20 discrete stab wounds to the middle and upper back, neck and head. The injuries included internal haemorrhaging, penetration of the chest cavity, injury to the lungs, severing of the carotid artery and damage to the jugular vein. A post mortem x-ray revealed a small piece of metal deeply embedded in the skull. A routine toxicology test revealed a blood alcohol level of 0.220.

[17] Police recovered CCTV footage from wherever it was available in and around The Oaks hotel. They quickly determined that a male had followed Mr Huxley as he walked home from the hotel. On 24 September 2013 they succeeded in identifying the male as Daniel Kelsall who worked nearby at the Sydney Cooking School and who was not previously known to police. They went to his home and spoke with him. He agreed to accompany them to North Sydney police station where he voluntarily participated in an interview.

[18] The offender adopted an air of helpfulness but he told the police what were later conceded to be a series of lies regarding his movements after he finished work on 8 September. He claimed that he returned to the Sydney Cooking School after being at the take-away shops on Ben Boyd Road because he had forgotten to turn off a light. He said that he just happened to walk behind the deceased along Military Road as he went back to work. He said that he was cold, which is why he could be seen jogging outside The Oaks hotel on the CCTV footage. He said that on his way home he took a circuitous route, stopping to look through items which had been left on the street by householders for an imminent council clean-up. (He has since explained that he told this lie in anticipation that his parents, with whom he lived, might tell police he was later than expected arriving home or that security cameras at his unit complex would be checked.) He denied ever having been in the deceased’s unit or knowing anything about the murder.

[19] The offender was arrested on 8 October 2013 on which occasion he declined to be interviewed. In the intervening period, police had determined that his DNA was on the deceased's penis, his fingerprints were on the bedroom door and that spots of blood from the deceased were on his shoulder bag. He had made an unsuccessful attempt to clean the spots from the bag.

[20] The offender's evidence in the trial entailed him giving a version that was markedly different to that which he had told police. He claimed that he had been invited by Mr Huxley into the unit. They were engaging in consensual sexual activity in the bedroom when one or more intruders entered and attacked Mr Huxley. The offender said that he simply fled and told no-one. It is little wonder that the jury rejected this account.”

The applicant’s personal history

7. The applicant did not give evidence during the proceedings on sentence. A psychiatric report of Dr Olav Nielssen was tendered in his case. The Crown tendered a psychiatric report of Dr Adam Martin, a psychological report of Dr Susan Pulman, and a statement by the applicant’s former treating psychologist Dr Abdul Saad.

8. In the judge’s remarks on sentence, his Honour in some detail referred to the applicant’s personal history and the history of his mental health. His Honour noted that the applicant, who had been born in New Zealand, was 20 years old at the time of the offences. He was adopted at birth and had an older brother and younger sister, who were also adopted. His Honour observed that the applicant had been brought up in a loving and caring environment and remained close to his parents.

9. As to the applicant’s education, the judge recounted that the applicant reported difficulties at school, but that these seemed to have been confined to separation from his friends. The applicant’s secondary education ended when the school he was attending closed and his attempts to complete his education by correspondence failed, apparently because of concentration issues.

10. He enrolled in a one year food preparation and culinary arts certificate before commencing an apprenticeship as a chef. The applicant was 17 years old at the time. When his parents and sister moved to Sydney half way through the year, his Honour noted that the applicant said that he found this period of separation difficult and became depressed.

11. After completing the course, the applicant joined his family in Sydney. He attempted to pursue a career as a chef but had difficulties understanding measurements and ultimately was employed as a kitchen hand and cleaner.

12. His Honour said that the applicant told Dr Nielssen that he became aware of his homosexual orientation in early high school, however, did not become sexually active until his late teenage years. He had not had a long-term relationship and none of his sexual encounters had resulted in any kind of danger or violence.

13. His Honour referred to the applicant’s description of himself as a “nerd” or a “geek” and observed that the applicant’s father had agreed with this description in his evidence in the trial.

14. The applicant did not have any prior criminal convictions in Australia.

The applicant’s mental health history

15. The judge noted that Dr Nielssen reviewed the applicant’s medical records from New Zealand, which included the records of a general practitioner and psychiatrist who the applicant had consulted in late 2010. The general practitioner’s notes included discussion of sleep disturbance, thoughts of suicide, and the notation that the applicant stated he “has enjoyed inflicting pain on others in the past”. The applicant was prescribed an antidepressant and an urgent referral was made to a mental health team.

16. His Honour related that the psychiatrist was inclined to a diagnosis of bipolar disorder and prescribed a low dose of Seroquel. The applicant was discharged from crisis team care in early December 2010. The psychiatrist had noted that the low dose of Seroquel had been helpful. After moving to Sydney, the applicant continued to take Seroquel and increased the dose on medical advice.

17. The applicant’s consultation with Dr Susan Allman in May 2012 was included in his Honour’s summary of the applicant’s visits to general practitioners. His Honour observed that the doctor’s notes included the possibility that the applicant might have Attention Deficit Hyperactivity Disorder (“ADHD”) and “mild Asperger’s with co-morbid depression”. The doctor’s notes also recorded an account of the applicant having experienced intrusive thoughts about killing people with a knife on his way home at night.

18. Dr Allman referred the applicant to Dr Matthew Boulton, a psychiatrist. Dr Boulton’s notes of the applicant’s consultation with him in June 2012 included the applicant saying that he had experienced thoughts of killing someone. He told Dr Boulton “it sounds psychopathic” and that he experienced these thoughts when his depression had been at its worst; it had helped that he was on antidepressants prescribed over the past month by Dr Allman.

19. Dr Boulton referred the applicant to Dr Abdul Saad, a psychologist. The applicant’s first session with the psychologist was on 19 June 2012, which was followed by another assessment session and ten treatment sessions; the last of which was on 17 September 2013, nine days after the murder.

20. His Honour recounted that Dr Saad stated that from his first session with the applicant, he found him somewhat difficult to engage. Dr Saad thought that the applicant was someone for whom anger was part of his internal psychic world; a sort of defence mechanism to keep him from feeling his emotions; but that it did not crossover into real life and pose a threat to himself or others.

21. It should be noted that, whilst Dr Saad was not very clear on where the applicant fell diagnostically, by the end of the first session he was not convinced that the applicant had ADHD, nor did an Autism Spectrum Disorder strike him as a diagnosis that could adequately explain his presentation.

22. Dr Saad stated that during the course of the treatment sessions, the applicant denied any significant feelings of anxiety or depression and there was no evidence of thoughts of self-harm or homicidal ideas.

23. The judge observed that based on the applicant’s presentation during the course of the treatment sessions, his self-reporting and background history, Dr Saad assessed the applicant’s risk status to himself and others as low. However, after being informed that the applicant had been charged with Mr Huxley’s murder, Dr Saad said that if the charge was proved, then “considerable weight would be added to the view that [the applicant] exhibits significant callous-unemotional traits”. He added that “such traits are not an integral aspect of either an ADHD or Autism Spectrum Disorder” (Kelsall at [38]).

The psychiatric and psychological reports

24. In his analysis of the experts’ reports, the judge remarked that Dr Nielssen made three diagnoses: possible bipolar disorder, possible Autism Spectrum Disorder, and possible emerging psychotic illness.

25. Dr Nielssen based the diagnosis of possible bipolar disorder on the applicant’s history of periods of depression and of elevated mood triggered by taking antidepressant medication, his history of some improvement after treatment with sedating antipsychotic medication, and his abnormally elevated mood at the initial interview in October 2013.

26. The judge noted that the basis of the possible Autism Spectrum Disorder was the applicant’s history of learning and social adjustment problems in his childhood and adolescence, the reported diagnosis of his treating psychologist and at least two psychiatrists, and aspects of the applicant’s presentation during the three interviews, where Dr Nielssen assessed the applicant’s communication and emotional responses as incongruous to his situation. His Honour said that Dr Nielssen did note the applicant’s fluency in conversation was not a typical feature of autism, but that the applicant’s condition might be best described as Autism Spectrum Disorder, which can be accompanied by a reduced capacity for empathy.

27. His Honour recounted that although the applicant did not report symptoms of schizophrenia around the time of the offence or in the year since his arrest, Dr Nielssen based the diagnosis of possible emerging psychotic illness on the applicant’s history of adoption, learning problems in childhood, an assessment by an early psychosis service in New Zealand, his history of mood and neurological symptoms that often precede the emergence of psychosis, and his “odd affect” (Kelsall at [43]) that the psychiatrist considered could indicate an underlying neuropathy of a schizophrenic illness.

24. His Honour said that Dr Martin also considered that the applicant “could probably be diagnosed with having Autistic Spectrum Disorder according to DSM-5 criteria” (Kelsall at [45]), but that he found no evidence of a major mental illness such as schizophrenia or bipolar disorder. It is convenient to note that Dr Martin explained that this would be referred to as Asperger’s Syndrome in DSM-IV terminology, which was essentially a less severe autistic disorder.

25. When referring to Dr Pulman’s report, the judge said that he found her report particularly thorough and helpful. His Honour remarked that “[r]efreshingly, she questioned the history she was provided by [the applicant] and indicated where it conflicted with other material, such as the histories set out in the reports of other doctors or the evidence in the trial” (Kelsall at [46]).

26. The judge remarked that the psychometric tests administered by Dr Pulman “yielded some interesting results” (Kelsall at [47]). The applicant’s overall level of intellectual functioning fell within the “superior range” which was at a level equal to or better than 95 per cent of the normal population.

27. The judge observed that when undertaking the vocabulary subtest, the applicant was asked to provide the meaning of the word “terminate”, and he responded immediately with “to kill”. Dr Pulman questioned the applicant about his response, as other individuals typically respond with definitions “to end, to finish, to stop”, and the applicant replied “to completely extinguish the life source”. His Honour noted Dr Pulman’s subsequent comment that “this was an atypical response, even within the incarcerated population with a history of antisocial and aggressive behaviour" (Kelsall at [48]).

28. The judge related that Dr Pulman’s testing of the applicant’s ability to deal with new and unusual tasks that require a person to reason, problem solve, check if they are proceeding correctly, and modify their behaviour if necessary also resulted in a ‘high-average’ range score. His Honour noted the applicant’s ‘superior’ range score at the 97th percentile in a task testing measurement, planning, and organisational ability. The applicant additionally scored ‘high-average’ range scores in tests assessing his ability to learn and remember.

29. His Honour also noted that testing of the applicant’s attention span and ability to concentrate and process information resulted in ‘high-average’ and ‘superior’ range scores, leading Dr Pulman to conclude that there was no evidence that the applicant had any difficulties with attention, which is a characteristic of individuals with ADHD.

30. The Depression, Anxiety and Stress Scales or DASS-21 test administered by Dr Pulman did not reveal any symptoms of depression, anxiety, or stress outside of normal limits, which his Honour said was interesting given that the testing was carried out a little more than a week before the applicant was due to appear for sentencing on a charge of murder (Kelsall at [52]).

31. Dr Pulman’s assessment of the applicant was quoted by the judge (Kelsall at [53]):

“[53] … [The applicant] was articulate, fluent in his conversation, and there was no evidence of any autistic features or symptoms consistent with ADHD or depression. On the contrary, his attention and concentration abilities fell in the Superior range and his mood upbeat, insofar as he appeared to be enjoying the attention and challenge the interview and testing provided.”

36. His Honour referred to Dr Pulman’s observation that whilst the applicant demonstrated obsessive traits and restricted or idiosyncratic behaviours, these were known to occur in more gifted individuals. The psychologist, his Honour said, had raised doubt about the possible diagnosis of autism and suggested a personality disorder with psychopathic traits. His Honour quoted the following passage from Dr Pulman’s report (Kelsall at [55]):

"[55]… Whilst [the applicant] demonstrates an understanding of empathy from a cognitive perspective, he appears to have limited emotional resonance or connection with other's emotional experiences. He is detached and composed in his behaviours and, although may appear similar to autistic type behaviours, it is in my professional opinion more consistent with a personality disorder characterised by psychopathic traits. Although there is no prior antisocial history that the writer is aware of, he has described feelings of rage originating in childhood. He reported to medical practitioners experiencing thoughts of harming others, although he reported no intention of acting [on] these thoughts."

Some findings by the judge

37. The judge found that “it was not an unprecedented thought to do what [the applicant] did – he had thought of following someone home after work one night and killing them with a knife before – although the selection of Mr Huxley as a victim was quite random” (Kelsall at [62]).

38. The judge was not satisfied that the applicant made the selection of Mr Huxley as a potential victim before or whilst he was in the hotel, but was satisfied that the thought occurred to him at least by the time Mr Huxley emerged from the hotel and the decision was taken to follow him.

39. His Honour was not satisfied that the applicant had formed an intention to kill as he followed Mr Huxley home, but was satisfied that he followed Mr Huxley with a view to seeing what opportunity might arise.

40. The judge found that the applicant was armed with a knife and entered the home for the sole purpose of killing Mr Huxley. As to the indecent assault, his Honour found that this was entirely opportunistic and did not play any part in the applicant’s thinking when he entered the unit.

41. Another finding by his Honour was that the killing was rendered more serious as it was committed by an intruder into the victim’s home whilst the victim was incapacitated.

42. The judge said that “this is a most chilling case of murder” (Kelsall at [68]), which was utterly senseless and needless. His Honour was satisfied that Mr Huxley was murdered “for no reason other than to serve some irrational purpose known only to [the applicant]” (Kelsall at [68]).

43. His Honour considered that community protection and a concern about future dangerousness were problematic given the inability of the psychiatrists to express any firm view. His Honour said that there was “no conclusive psychiatric explanation for [the applicant’s] conduct” and “no identifiable diagnosis of a psychiatric condition that is amenable to treatment” (Kelsall at [71]).

44. His Honour said that there was enough about the circumstances attending the killing of Mr Huxley, considered in the light of the applicant’s thoughts conveyed to doctors more than a year before, together with the assessment of the experts, particularly Dr Pulman, “to give rise to a very real concern” of future dangerousness (Kelsall at [72]).

45. Having given consideration to the Crown’s submissions about the murder falling into the worst category, or that the community interest could only be served by a life sentence, the judge said that although there were quite a number of features pointing in that direction, he did not see the case as being that extreme.

46. The judge observed that the applicant was young, 20 years old at the time of the killing and 22 years old on sentence, but did not consider that the applicant’s crimes were in any way the product of immaturity. However, his Honour took into account that the applicant was not long into adulthood as part of his overall subjective case.

47. The judge also considered that, as the applicant had no previous convictions, he “must be regarded as a person of otherwise good character” (Kelsall at [75]).

48. His Honour found that the applicant was not remorseful and his prospects of rehabilitation were, at least, questionable.

49. Another finding made by the judge was that the applicant’s mental health issues were not of such a type and significance that called for any amelioration of sentence.

50. The judge did not find special circumstances warranting a variation of the statutory ratio between the balance of term of the sentence and the non-parole period.

Dealing with the appeal

51. During the hearing of the appeal, Senior Counsel for the applicant informed this Court that specific error could not be established in Grounds 1 and 2, but that those grounds were “part and parcel” of the complaint that the sentence for murder was manifestly excessive (Tcpt, 21 August 2017, p 4).

52. In view of Senior Counsel’s concession, I propose to deal with Ground 3, which asserts that the sentence for murder is manifestly excessive.

Argument

53. It was contended for the applicant that the term of the sentence and non-parole period were manifestly excessive. In reminding the Court of the importance of consistency, the applicant argued that neither the circumstances of the crime nor his subjective circumstances justified the severity of the sentence. The Court was referred to a number of sentences in other cases and to statistics from the Judicial Information Research System (“JIRS”). Particular emphasis was placed upon the decisions of this Court in King v R [2015] NSWCCA 99 (“King”) and Cramp v R [2016] NSWCCA 305 (“Cramp”). The applicant’s argument was that his sentence was impermissibly high by reference to the sentences imposed in the whole body of cases notwithstanding the varying subjective cases of the offenders.

54. The applicant submitted that there were compelling reasons which warranted a finding of special circumstances and his Honour’s disinclination to make such a finding resulted in a crushing sentence.

55. Another submission was that the judge’s findings that the offence was committed “for no reason other than to serve some irrational purpose known only to the [applicant]” (Kelsall at [68]); that the applicant’s “prospects of rehabilitation are, at least, questionable” (Kelsall at [76]); that there was “no identifiable diagnosis of a psychiatric condition that is amenable to treatment” (Kelsall at [71]); and, that there was “no conclusive explanation for [the applicant’s] heinous conduct” (Kelsall at [71]), were not supported by or open on the evidence. The applicant argued that the judge had failed to take into account the opinions of Dr Martin and Dr Pulman that a more defined diagnosis of the applicant’s mental health issues is likely to emerge through regular close monitoring and assessment.

56. The applicant contended that of particular importance was the future likely progress of the applicant’s mental and emotional disorder, especially in light of his relative youth. The applicant pointed to his history of seeking treatment for various diagnoses including depression, ADHD, autism, bipolar, and possible emerging psychotic illness. The applicant complained that his Honour’s findings said nothing of what, on the balance of probabilities, he will achieve at some stage during the non-parole period.

57. The applicant submitted that his mental health issues, particularly in combination with his youth and capacity to receive treatment and participate in rehabilitation programs, warranted a more favourable finding as to his prospects of rehabilitation. Particular criticism was directed at the judge’s finding that the applicant’s crimes were not in any way the product of immaturity.

58. The Crown’s response was that taking into account the objective seriousness of the offence, the applicant’s subjective case, the heightened need for specific deterrence and protection of the community, and the legislative guideposts, a sentence of 40 years imprisonment with a non-parole period of 30 years could not be regarded as so unreasonable or plainly unjust as to warrant intervention by the Court. The Crown pointed to matters of distinction between the present case and what were said to be comparable cases identified in the applicant’s submissions.

59. The Crown argued that there was no error in his Honour’s approach to the applicant’s prospects of rehabilitation, nor was there evidence that the applicant had a major mental illness. His Honour took into account that the applicant was a young adult as part of the overall subjective case. The Crown submitted that all of the findings made by the judge were open on the evidence.

60. As to the applicant’s complaint that a finding of special circumstances should have been made, the Crown contended that such a finding is discretionary and no error has been demonstrated.

Consideration

61. The applicant must show that the sentence was unreasonable or plainly unjust in order to make good his complaint that the sentence is manifestly excessive: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] (“Markarian”). Intervention by this Court is neither warranted simply because it might have exercised the sentencing discretion in a manner different to the sentencing judge: Markarian at [28]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [57], nor simply because the sentence is markedly different from other sentences that have been imposed in other cases: Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59] (“Hili”). Whilst prior decisions and sentencing statistics are helpful when they assist in identifying a range or pattern of sentences for a particular offence, each case must be considered in the light of its own facts. No two cases are the same and there is no single correct sentence. Consistency in sentencing practice is achieved by consistency in the application of principle and not by numerical equivalence: Hili at [48]; R v Nakash [2017] NSWCCA 196 at [9].

62. When considering whether the applicant has established that his sentence was manifestly excessive, the maximum penalty of life imprisonment and standard non-parole period of 20 years are the legislative guideposts to be borne in mind.

63. There is no merit in the applicant’s complaints that the judge’s finding that the applicant’s “prospects of rehabilitation are, at least, questionable” was not supported by or open on the evidence, and the judge did not give sufficient consideration to the applicant’s mental health issues in combination with his youth. The first point made by his Honour was that the applicant was not remorseful and continued to deny his guilt. The second was that there was nothing to indicate that he had shown any empathy for the murder. His Honour went on to say (Kelsall at [57]–[60]):

“[57] Dr Nielssen found it impossible to provide any meaningful prediction about the question of future offending or rehabilitation. He noted that the offender was of normal intelligence and would appear to be capable of participating in counselling and other rehabilitation programs. There was no pattern of antisocial conduct prior to the offence and no history of alcohol or substance abuse. Dr Nielssen said the main area of concern that would warrant further attention in counselling before the offender’s eventual release was his reported account of having experienced fantasies of killing a stranger with a knife. Dr Nielssen considered that it would be expected that the offender complete the Violence Prevention Program, or that a similar program of intensive counselling should occur, before consideration of parole release.

[58] Dr Martin was also similarly guarded about making any prediction about future offending. One of his concerns was that he suspected that ‘there are many unknown issues which are yet to be disclosed around the offending‘ and that ‘it is impossible to know exactly how or why the murder occurred’. He did not think the issue of autistic tendencies adequately explained the violence, noting that the overwhelming majority of people with autism do not violently offend and then lie about their whereabouts to the police as the offender had done. Dr Martin wrote:

‘In conclusion, my view is that, at this stage, it is not easy to understand the motivation for the murder of Mr Huxley. It is not clear to me, from a psychiatric perspective why or how the murder took place. He certainly presents as emotionally detached, and this makes it hard to know his true mindset, either at the time, or now.

At this stage what I think can be said is that the murder did not occur in the context of psychosis or major sustained mood disturbance. The violence did not appear to be driven by delusions, hallucinations, or disorganised behaviour suggestive of a mental illness such as schizophrenia. I do not think that psychiatric medication is likely to have been a material factor influencing the violent behaviour.’

[59] It was Dr Martin’s opinion that an assessment of future dangerousness could only be made on the basis of a ‘longitudinal assessment of the psychological issues’. He noted that there were limits on making such an assessment on the basis of a single interview and a review of various documents. He added:

‘At this stage, it is not possible to offer the opinion that repeat offending will not occur, or that the risk can be reduced significantly with psychological treatment. Hopefully, in the future more information will be forthcoming such that issues such as motivation or other psychological factors might become more apparent and understandable.’

[60] Dr Pulman was even more pessimistic about the offender's prospects of further offending:

‘Given Mr Kelsall is denying any responsibility for the murder for which he has been convicted and continues to maintain his innocence, the motivation for the offence is difficult to determine. Without any remorse and with the motive for the crime remaining unknown, it is likely that Mr Kelsall will require ongoing review during his period of incarceration. Through regular and close monitoring it is likely that a more defined diagnosis will emerge as to whether he has a mood disorder or an emerging mental illness such as schizophrenia or a personality disorder.

In the interim, the writer is unable to comment as to whether his risk of reoffending is likely to be reduced by psychological treatment and psychopharmotherapy. The assessment of future dangerousness will require longitudinal analysis of his behaviour and psychological condition. However, given he is young man of superior intelligence with a known history of deceit and emotional detachment, it is my opinion that he remains dangerous and accordingly the risk of future dangerousness remains high.’”

64. It is evident from all of the judge’s sentencing remarks that his Honour carefully considered the applicant’s relative youth, mental health history, the possibility of a definitive diagnosis of mental illness in the future, and future treatment, when considering his prospects of rehabilitation. However, the nature of the murder, the applicant’s thoughts recorded by Dr Allman and Dr Boulton, the significant callous-unemotional traits noted by Dr Saad, his lack of remorse, and the opinions of Dr Martin and Dr Pulman inevitably lead to a very real concern that the applicant will re-offend by committing serious acts of violence in the future.

65. In all the circumstances of this case, a compelling consideration is the need to protect the community. However, as his Honour said, “a sentence cannot be increased from what is proportionate to the gravity of the crime for this reason” (Kelsall at [72]).

66. As to the applicant’s submission about the judge’s finding that there was “no identifiable diagnosis” of a psychiatric condition “amenable to treatment”, it was never put to his Honour that any of the experts had made such a diagnosis. In oral submissions on sentence, the applicant’s counsel accepted that there was “no clarity” or “agreement” between the experts as to a diagnosis of the applicant’s mental health. However, counsel’s submission on sentence was that “all that material indicates is that he does have some type of issue with his mental health” (Tcpt, 29 April 2015, pp 14–15).

67. In any event, there was no conclusive evidence that the applicant was suffering from a psychiatric condition. Dr Nielssen’s diagnoses were confined to three possibilities; Dr Martin found no evidence suggestive of a major mental illness, but found that the applicant could “probably be diagnosed with Autistic Spectrum Disorder”; whereas the opinions of Dr Saad and Dr Pulman placed doubt on a probable diagnosis of an autistic disorder. Dr Pulman suggested a personality disorder characterised by psychopathic traits. It was open to his Honour to make such a finding upon the evidence before him.

64. In my opinion it was also open to the judge to find that the offence was committed for no reason other than to serve some irrational purpose known only to the applicant and that there was no conclusive explanation for his heinous conduct.

65. Although the murder was not regarded by his Honour as being so extreme that the community interest could only be served by a life sentence, the gravity of the applicant’s offending is close to the highest level. The applicant randomly selected the deceased, with whom he had no prior association, and followed the deceased in the early hours of the morning to his home unit, with a view to seeing what opportunity might arise to kill him. The applicant was armed with a knife. Taking advantage of the unlocked front door, the applicant entered the home unit for the sole purpose of killing the deceased, who was in his bedroom incapacitated by sleep, intoxication, or both. After entering the bedroom, the applicant mercilessly attacked his innocent and defenceless victim. The deceased was indecently assaulted and stabbed multiple times, suffering terrible wounds. He was 31 years old when he died. As his Honour said, “this is a most chilling case of murder” (Kelsall at [68]).

66. There are seven cases in the applicant’s schedule of what are said to be comparable sentences for murder. Cramp and King received detailed attention in submissions. These cases are judgments of this Court, unlike the other five in the schedule.

67. In Cramp, the offender, who was 37 years old at the date of the offence, was sentenced after trial to 40 years imprisonment with a non-parole period of 30 years for the murder of a former work colleague. The offender went to his former work place carrying two knives in a small bag. At the time, the deceased was working the night shift. The offender attacked the deceased from behind, stabbing him through the left side of the neck, using one of the knives with sufficient force to completely sever the deceased’s spinal cord. The offender left the deceased alone and bleeding on the ground and fled the scene.

68. The objective seriousness of the offence was found to be “very high” (Cramp at [49]). At the time of the murder, the offender was on conditional liberty for an offence of assault occasioning actual bodily harm. His prior criminal history included offences involving violence.

69. There was insufficient evidence to establish that the offender was affected by illicit drugs such as to warrant any amelioration of the seriousness of the crime. The offender displayed no contrition for the murder. No motive for the killing was identified and his prospects of rehabilitation were poor. The offender’s sentence was reduced on appeal to this Court to 34 years imprisonment, including a non-parole period of 25 years 6 months.

70. In Cramp, the Crown relied upon the sentence imposed by his Honour in the present case as a comparable sentencing decision. This Court (Gleeson JA, Fagan and N Adams JJ) distinguished the present case at [51]–[52]:

“[51] The two comparable sentencing decisions relied upon by the Crown are of assistance. R vKelsall was a case in which motive remained obscure and where protection of the community was an important consideration in determining the appropriate sentence. That offender was sentenced to 40 years’ imprisonment including a non-parole period of 30 years for the stabbing murder of a complete stranger to him, in that person’s home. The circumstances raised a significantly more pressing concern for the protection of the community than the present case. The offender in that case had reported to a doctor 16 months before the homicide that he experienced intrusive and persistent thoughts of killing people with a knife. He told a psychiatrist at about the same time that he had thoughts of stabbing a person to death ‘for the thrill of it’ ([5], [33], [34]). Psychiatric opinion included that the offender exhibited ‘significant callous-unemotional traits’ and ‘a reduced capacity for empathy’ ([38], [42]).

[52] In R vKelsallat [62]–[64], it was found that the offender had followed the deceased to the latter’s home with the thought that he might kill the deceased should the opportunity arise, albeit without a firm intention to kill from the outset. The learned judge accepted that once the offender had entered the deceased’s home he did so for the sole purpose of killing him if he could. The victim was incapacitated by sleep, intoxication or both. At [68], the learned sentencing judge said that, ‘despite the psychiatrists being unable to fathom a reason for it, [the homicide] must have been the doing of a very disturbed individual’. Thus in R v Kelsall there were specific circumstances justifying a very long prison sentence in the interests of protecting the community, which are not present in the case now before this Court.” [Emphasis added.]

75. In King, the offender, who was 25 years old at the date of the offence, was sentenced after trial to 32 years imprisonment with a non-parole period of 24 years for the murder of his partner. The offender and the deceased had had a volatile relationship that was marked by violence by the offender toward the deceased. In the hours leading up to the murder, the offender had consumed alcohol and smoked ice, although there was no evidence of the amounts he had consumed or smoked. The offender had also made threats to kill the deceased in numerous phone calls throughout the evening of the murder. Later in the evening, the offender and the deceased were seen entering the deceased’s apartment complex on CCTV footage, and the applicant was then seen exiting the apartment complex approximately half an hour later. The deceased was murdered during this time. Photographs of the crime scene showed the deceased’s apartment in complete disarray, with furniture upended and broken, clothing of the deceased strewn about the apartment, and blood staining throughout. A forensic pathologist gave evidence that the cause of the deceased’s death was blunt force trauma injuries to the liver and heart caused by repeated stomping, and resulting in the right side of the deceased’s heart being torn. A few minutes after leaving the deceased’s apartment, the offender called emergency services from a public telephone but gave the wrong address and no ambulance arrived.

76. There are significant differences between King and the present case. In King the sentencing judge assessed the objective seriousness of the offence as “above the mid-range” (King at [28]). At the time of the murder the offender was on conditional liberty, which the judge found was a matter of aggravation. His Honour also found that the offender’s intoxication should be regarded as an aggravating factor, given that the offender continued to take ice with the knowledge that it increased his aggression. These factors of aggravation are not present in the applicant’s case.

77. In King the offender was part indigenous and had an unfortunate background. He had expressed genuine remorse for his actions in sworn evidence before the sentencing judge. He had accepted responsibility for the death of the deceased, and shown acknowledgement and understanding (albeit belated) of the circumstances which had brought about his conduct. The opinions of the psychiatrists pinpointed the offender’s issues with substance abuse, impulsivity, and anger as critical to his rehabilitation. The sentencing judge observed that the offender had some prospects of rehabilitation, which were dependent upon how he particularly dealt with the issues identified by the psychiatrists.

78. None of these mitigating factors are present in the applicant’s case. Furthermore, the facts of the respective cases establishes that considerations of the offender’s future dangerousness and protection of the community were not as important in King as they are in the case before this Court.

79. In King, the offender’s appeal against the severity of his sentence was dismissed.

80. It has often been said that the practice of approaching sentencing appeals by a comparison with sentences passed in other cases is neither helpful, nor is it the way this Court determines whether a sentence is manifestly excessive: Huynh v R (2008) 188 A Crim R 287; [2008] NSWCCA 216 at [61]; Vandeventer v R [2013] NSWCCA 33 at [45]. In King, the Court (Hoeben CJ at CL, Hidden and Beech-Jones JJ) explained at [80]:

“[80] The reliance on four specific sentencing judgments in other matters, as a means of establishing some kind of benchmark against which the reasonableness of this sentence is to be measured, is not particularly helpful. Murder, like manslaughter, has been aptly described as a protean offence. Each case, to a large extent, depends upon its own facts. Axiomatically, differences in facts and circumstances will often lead to differences in the resulting sentence.“

81. There are clear matters of difference in the cases cited by the applicant to the facts and circumstances in the present case. I find it unnecessary to detail the JIRS statistics upon which the applicant placed some reliance. Neither those cases cited nor the JIRS statistics persuade me that the applicant’s sentence is manifestly excessive.

82. During the proceedings on sentence, it was submitted to the judge that the applicant’s health, age and first time in custody meant that special circumstances should be granted with the aim of integrating the applicant back into “main stream society” at some point in the future. His Honour’s conclusion that a parole period of 10 years was sufficient and the overall non-parole period of 30 years 3 months appropriately reflected “all relevant matters, including the objective seriousness of the offence”, was a legitimate exercise of his Honour’s sentencing discretion (Kelsall at [80]). I am not persuaded that his Honour’s failure to find special circumstances has resulted in a crushing sentence.

83. In my opinion, the applicant has not demonstrated that his sentence was unreasonable or plainly unjust.

84. Accordingly the orders I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

85. BELLEW J: I agree with Price J.

86. HAMILL J: I also agree with Price J.

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Amendments

09 October 2017 - added "whether sentencing manifestly excessive" to Catchwords

Decision last updated: 09 October 2017