R v Christie
[2015] VSC 769
•22 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0063
| THE QUEEN |
| v |
| PAUL STEVEN CHRISTIE |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 December 2015 |
DATE OF SENTENCE: | 22 December 2015 |
CASE MAY BE CITED AS: | R v Christie |
MEDIUM NEUTRAL CITATION: | [2015] VSC 769 |
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CRIMINAL LAW – Murder – Sentence after trial – 17 years’ imprisonment with a non-parole period of 14 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K J Doyle | Office of Public Prosecutions |
| For the Accused | Mr T E Wraight QC with Mr A P Halphen | Victoria Legal Aid |
HIS HONOUR:
On 17 November 2015, after a trial lasting nine days you, Paul Christie, were convicted of the murder of Paul Kennelly. That was the tragic result of events which occurred at 8B Walsh Street, Noble Park, on 21 November 2014.
Karen Camilleri lives at that address and you were living there for between one and two weeks prior to the date of these events. You had been out during the afternoon and evening, and Cheree Smith and Paul Kennelly had come to the house believing that they had Karen Camilleri’s permission to stay the night. Karen Camilleri is intellectually disabled, but with support is capable of operating in the community, although it is clear that her ability to reason with perception is limited.
Karen Camilleri, Cheree Smith and Paul Kennelly shared a meal. They were later joined by Frank Mazzacca, who had previously been in a relationship with Karen Camilleri. He gave evidence that he had seen you at Coles in Noble Park. You arrived not long after Mazzacca, at about 10.15 pm. What happened next is not entirely clear, but it appears that Karen Camilleri asked you to get Cheree Smith and Paul Kennelly to leave the flat. Karen Camilleri treated you as being in charge and having been, as it were, appointed to that position by her carer. You told Paul Kennelly to leave. He was then lying on the floor between the couch and what might be called the dining room table. Paul Kennelly responded telling you to “fuck off”, or words to that effect. You then attempted to remove him and pulled him up from a prone position. It seems clear that you did punch Paul Kennelly at some stage during this part of the events and that he probably did punch you. After he got to his feet, there was a struggle which ended near the front door, and you went to the kitchen. Paul Kennelly then said words to the effect, “Come on, mate, let’s go.” He went towards you in the kitchen and struck you to the back of the head about three times. At about that time you armed yourself with a steak knife. As Kennelly started punching you, you started stabbing him. You were later to say that you kept stabbing him until he stopped punching you. You inflicted a number of stab injuries upon him. There were eight stab injuries described by the pathologist, including one injury which had four different aspects to it. Some of the wounds were largely superficial, but there were at least three serious penetrating injuries to the stomach and lower intestine. There was also a less serious injury, penetrating the diaphragm.
An ambulance was called and you could be heard in the background as Cheree Smith is speaking in the call to the ambulance services. You repeat a number of times that he should not have hit you to the back of the head. It is fair to say that you might be described as being both angry and agitated during that call. You did try to give reasonable assistance in the circumstance, but not unsurprisingly Ms Smith did not want you anywhere near Mr Kennelly and that was a complication.
I am satisfied that there was a clear element of self‑defence in your actions, but the jury probably took the view that either the use of the knife or the number of times the knife was used were an unreasonable response to the threat that you thought you faced. I think it is also possible that the jury did not accept that you believed you were faced with a threat of death or really serious injury, even though you were definitely faced with some threat. I think it is likely that the jury proceeded on the basis that you intended to cause at least really serious injury, and I proceed to sentence you on the basis that you did not intend to kill Mr Kennelly.
On the night you were upset and angry that Mr Kennelly, because he would not leave when you told him to in circumstances where you thought you did have the authority to tell him to go. You also believed that you were entitled to stay at the flat and that Paul Kennelly and Cheree Smith were not, and probably believed you could not all stay there.
The knife you used came from the kitchen. It was at hand. If you had not gone back into the kitchen at the end of the first fight or if the fight had continued in the living room, this death might never have occurred. I do not proceed on the basis that you went back into the kitchen to deliberately arm yourself.
It should also be noted that, although there are a number of stab wounds, they were delivered very quickly and this incident from the very beginning was a very fluid one. The evidence of the pathologist seems to make it clear on the other hand that Paul Kennelly could not still have been striking you to the back of the head whilst all the blows with the knife were delivered, but I do accept, as I have just said, that it was a very fluid situation.
In any event, Paul Kennelly died on 2 December 2014 as a result of the stab wounds he received.
On the plea I received in evidence two victim impact statements: from Kevin and Anne Kennelly, the parents of Mr Kennelly, and from Kristen Niven, his sister. The statements were each read to the Court. They were brief, but nonetheless moving, and they remind us of the great loss and suffering for those who are left behind and the extent to which the suffering that they face is ongoing. It is almost impossible, if not indeed impossible, for family members to understand something like this should have happened in such a pointless way. There is little I can say. Sentences are imposed in accordance with the law. I doubt that you will regard any sentence that I impose as being adequate to reflect what has happened to you. I cannot do the one thing that would be important to you, and that is restore your son and brother to you.
Paul Christie, you are now 36 years of age. You are the younger of two children. You are close to your sister who is two years older than you. Your mother left the family home when you were about 18 and you feel betrayed by her behaviour and that is an ongoing difficulty for you. You are reasonably close, if not very close, to your father, and to his new partner. Your father has supported you throughout the trial and he continues to offer you his support. He provided a reference to me which sets out some of your background and the fact that you have been very helpful to your sister and have an excellent relationship with your three nieces. He tells me that you have been a supporter of the underdog, which fits in with the assistance you were giving to Karen Camilleri.
You grew up in Noble Park and your schooling was difficult because at least two schools you attended were shut down. You attempted an apprenticeship as an auto‑electrician, but after a year — because of some difficulties with the son of the person to whom you were apprenticed — that came to an end. You did attempt to return to school, but that was unsuccessful. The fact that you then would have been a reasonable bit older than any of the other students in Year 9 would not have helped.
You then did a job for about six months as an acid dripper and during that period you developed an addiction to heroin. That addiction and things that have flowed from it have marred your life ever since. You had a spray painting job for about two years, and have done fruit picking in Queensland and South Australia. You told Ms Lechner, who prepared a report to which I will refer to in a moment, that you have worked for about 30 or 40 per cent of your adult life. You have not worked for about five years, but have not been able to get the disability support pension. You have suffered physical injuries along the way, including a broken leg at a time when you were just really beginning to settle down somewhat.
Just before you did break your leg, you had moved into independent accommodation in a flat. There were difficulties about the flat itself. There were repairs done to the flat, the rent went up, and you were unable to keep renting the premises. In the two years immediately preceding these events you either stayed with friends, or lived on the streets in various kinds of shelters — bus shelters and public toilets and so on. You did at one stage stay with a friend who became psychotic and you had to leave that accommodation. Later you accepted Karen Camilleri’s offer to stay at her place.
You have reported to Ms Lechner suffering a number of head injuries, in particular on two separate occasions; one eight to ten years ago and one five years ago. You were attacked on the second occasion by a group of men armed with a metal pole and on that occasion you were left unconscious and bleeding from a head wound. You said that this made you wary of people coming up behind you. Although I think that is the genesis of what you said in your record of interview about being afraid of finishing up “in a pool of blood”, the difference between the two situations is pretty stark. You have had a lifelong problem with alcohol consumption and with the use of illicit drugs of many kinds, including heroin, methylamphetamine and others, and also with prescription medication. You are now on buprenorphine and you have not really participated in any drug or alcohol rehabilitation program.
You have been diagnosed as suffering from alcohol, cannabis and opiate use disorders and you are suffering from clinical depression. You have managed reasonably well in prison. It is a probability that you have an acquired brain injury, but that matter has not been taken further. You have some features of post‑traumatic stress disorder which may in part reflect your response to not wanting to be left “in a pool of blood”. Nearly all of that material, as I have mentioned in passing, I have gleaned from the report of Carla Lechner, consultant psychologist, dated 4 December 2015, which was tendered on your behalf on the plea.
You have a significant number of prior convictions, although apart from convictions for indecent assault, robbery, and attempted robbery, they are not particularly serious. You have had opportunities to complete community based orders including ones with conditions relating to drugs and alcohol but not availed yourself of those opportunities. Apart from the question of the lost opportunities, the prior convictions are not very relevant to the sentencing of you. In fact, for somebody who finds himself in your position there is a remarkable absence of any prior history of violence.
Your life thus far has been relatively aimless, particularly as a result of your use of alcohol and drugs. In that context, it is difficult to say much about your prospects of rehabilitation, but this long period of incarceration will, I hope, keep you drug‑free and increase your chances in the future when you are ultimately released.
You have been convicted of the crime of murder, the maximum penalty of which is life imprisonment. These actions were spontaneous. There was an element of self‑defence, and from the very first moment that you had any opportunity to say anything about the case you said that your response was the response to being struck on the back of the head. I accept that those previous events occurred and I expect that you were responding, but you were responding in a way that was not appropriate as the law understands it in the circumstances. As the incident began you were reasonably well motivated, but I find that you resented and became angry with Paul Kennelly for rejecting your authority. The actions which took Paul Kennelly’s life occurred probably in what is less than a minute (or if more than a minute, not much more than a minute).
I accept that you regretted what had occurred straight away and that you expressed yourself in those terms throughout the record of interview, in a way which I described during the hearing of the plea as being unusual. You did place some blame on Paul Kennelly for what had happened, I suppose that is not unusual in cases where people claim to have acted in self‑defence but I accept that upon looking at whole of the record of interview, at your actions at the time Mr Kennelly was leaving, being taken from the premises and put in the ambulance, and what I have seen of you in the trial and what happened in the trial, that you are remorseful. I accept that the trial was conducted as reasonably as it could, being confined as it was to your defence of self‑defence and you cannot be criticised for conducting your trial.
In the order of seriousness I regard this case as being in the lower half of seriousness for the crime of murder. That should not be interpreted in any way as devaluing the life of Paul Kennelly. It does not. But I am obliged as a sentencing judge to try and fit the case into the place it falls in relation to all the murders that might occur and that is how I come to that conclusion about it.
I am obliged to have regard to just punishment and general and specific deterrence. I have taken into account all the matters that were put on your behalf in framing the sentence that I have.
I received a written submission from Mr Doyle, counsel for the Director of Public Prosecutions, conceding that — because of the decision of the Court of Appeal in DPP v Walters[1] — “the court in the present matter should sentence without having regard to the baseline sentencing provisions of the Sentencing Act 1991, including s.11A.” Section 11A concerns itself with the fixing of non‑parole periods for baseline sentence offences. I do not necessarily accept that DPP v Walters does determine whether or not s 11A is still of application, but I will, in any event, fix a non‑parole period which would have satisfied the requirements of s 11A without having regard to it. The operational validity of s 11A will have to be left for consideration in some other case.
[1][2015] VSCA 303.
If you would stand up please.
Paul Steven Christie, you will be sentenced to be imprisoned for 17 years with a non‑parole period of 14 years. I fix the period of parole of three years because I believe that that is an adequate time for you to be under supervision if you are released into the community at or near your earliest release date.
I declare that you have served 396 days pre‑sentence detention and I order that this declaration and its details be entered in the records of the court.
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