R v Blackwell - [2013] VSC 499

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2012 0114

THE QUEEN
v
KELLY BLACKWELL	Accused

---

JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2013
DATE OF SENTENCE:	13 September 2013
CASE MAY BE CITED AS:	R v Blackwell
MEDIUM NEUTRAL CITATION:	[2013] VSC 499

---

CRIMINAL LAW – Manslaughter by negligence – Attempt to obtain property by deception – Pleas of guilty – duty of care owed – savage, prolonged bashing by co-accused – No intervention despite duty of care – Attempt to access deceased’s bank account using his ATM card – Deprived and troubled background – Diagnosed with depression, anxiety and post-traumatic stress disorder – Expression of remorse and regret – TES: 4 years’ imprisonment with a non-parole period of 2 ½ years’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gibson	Office of Public Prosecutions
For the Accused	Mr R Thyssen	Victorian Aboriginal Legal Service

HER HONOUR:

Kelly Blackwell, you have pleaded guilty to one count of manslaughter and one count of attempting to obtain property by deception, and have admitted prior matters, none of which are relevant for these purposes.

In September 2011, you had known the deceased, Leon Douros, for approximately 12 months. He had separated from his wife and two children, and you and he had been living at his parents’ house in Ellen Street, Springvale, for 3½ months while they were overseas.

You described yourself as Mr Douros’ partner. You accompanied him on access visits to his children and assisted him in his endeavours to obtain greater access to them. In August 2011, you accompanied Mr Douros to his GP, where he sought treatment for depression and alcohol dependence. On 7 September 2011, you again accompanied Mr Douros to his GP and, on this occasion, a Centrelink carer’s allowance form was completed by the doctor on your behalf and that of Mr Douros. The role of carer was explained to you by the doctor, and subsequently you sent that form to Centrelink. They in turn acknowledged receipt of and requested the completion of further documentation in order to commence making payments to you. The Crown relies on the totality of this evidence as indicative of the nature of your relationship with Leon Douros. It was such that, at the time of his death, you owed him a duty of care.

In the week preceding 24 September 2011, Damien Van Zoelan, whom you had known for some 18 months and had previously been his registered carer, came to stay with you and Leon Douros at the Ellen Street house. It appears that in that time there was some tension between he and Leon Douros. On 21 September 2011, apparently in order to escape that tension, you booked a room at the Parkside Inn Motel, Bundoora. The booking was made for three nights. You and Van Zoelan had stayed there many times before, and on that day, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Blackwell

Details

AGLC: R v Blackwell [2013] VSC 499
Case: [2013] VSC 499
Decision Date: 13 September 2013

CaseChat Overview and Summary

The case before the court involved the defendant, Blackwell, who was charged with manslaughter by negligence. Blackwell and his co-accused had been involved in a savage, prolonged bashing of a man, leading to the victim’s death. Blackwell attempted to obtain property by deception by using the deceased’s ATM card to access his bank account. Blackwell pleaded guilty to the lesser charge of manslaughter by negligence. The case required the court to determine the appropriate sentence for Blackwell, taking into account his background, mental health issues, and expression of remorse.

The court was tasked with determining whether Blackwell owed a duty of care to the victim and if he breached this duty, which led to the victim’s death. Additionally, the court needed to assess Blackwell’s background, mental health issues, and expression of remorse in the context of sentencing. The court also had to consider the role of Blackwell’s co-accused in the incident and how this impacted Blackwell’s culpability.

The court found that Blackwell owed a duty of care to the victim and breached this duty by not intervening in the bashing. The court considered Blackwell’s deprived and troubled background, his diagnosis of depression, anxiety, and post-traumatic stress disorder, and his expression of remorse and regret in sentencing. The court acknowledged the role of Blackwell’s co-accused but found Blackwell’s actions in attempting to access the deceased’s bank account to be significant. Ultimately, the court determined that a total effective sentence of four years’ imprisonment, with a non-parole period of two and a half years, was appropriate.

The final orders of the court were that Blackwell be sentenced to four years’ imprisonment, with a non-parole period of two and a half years.

Orders