R v Ely
[2016] VSC 254
•18 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0074
| THE QUEEN |
| v |
| KIRT MATTHEW ELY |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6, 13 May 2016 |
DATE OF SENTENCE: | 18 May 2016 |
CASE MAY BE CITED AS: | R v Ely |
MEDIUM NEUTRAL CITATION: | [2016] VSC 254 |
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CRIMINAL LAW – Sentence – Intentionally cause serious injury – Prisoner and victim involved in long drinking session – Prisoner and victim intoxicated – Victim repeatedly attacked prisoner – Guilty plea – Depression – Good prospects of rehabilitation – Sentence of imprisonment combined with Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gibson | Office of Public Prosecutions Victoria |
| For the Accused | Mr D. Holding | McNamara & Associates |
HER HONOUR:
Kirt Ely, you have pleaded guilty to intentionally causing serious injury to Michael Leder on Wednesday, 31 December 2014, at Tooradin in Victoria.
You were arrested on that day and have been in custody since that time.
Michael Leder died in hospital a day after your offending. However, you were not charged with causing Leder’s death.
Circumstances of the offending
Briefly described, the circumstances of your offending are as follows.
On 30 December 2014, you were living in an onsite caravan at the Tooradin Caravan and Tourist Park. You had been living there for approximately three weeks, since being discharged from hospital following an episode of depression. You were living separately from your partner, Lisa Walker (now Lisa Ely), and children. At the time, you and Ms Walker had two small children. A third child was born approximately 9 months ago, since you have been in custody.
On the day in question, Ms Walker came to Tooradin to visit you and the two of you spent the day quietly together. At around 6 o’clock in the evening, you invited Leder and another man, John Rafter, to your caravan for dinner. Leder and Rafter also lived at the Tooradin Caravan Park. Neither was well known to you. You, Ms Walker and your two guests ate dinner and drank together (although Ms Walker did not consume alcohol). You remained together talking and drinking late into the night.
At around 1.00 am, Rafter left your caravan to return to his own caravan. You, Walker and Leder continued to talk, and you and Leder continued to drink, seated together on a couch in the annex to your caravan.
About half an hour after Rafter’s departure, Leder got up off the couch, stood in front of you and started to slap or hit you. You pushed him down onto the couch and asked him what he was doing. Leder said he was just playing around. He then resumed talking and drinking, but approximately half an hour later, Leder again stood up in front of you and punched and/or slapped you. You again pushed Leder back onto the couch. You told him that he was not showing respect, given that you had fed him and provided him with alcohol. Leder then asked for more wine, which you poured for him. In her statement to the police, Walker said this happened several times over the course of the night. She said that Leder’s moods were changing very quickly. You, on the other hand, were described as being happy and showing no signs of a bad mood.
At about 3.00am, you told Leder you were going to walk him home because you did not think he would make it on his own. By then, both you and Leder were intoxicated.
Ms Walker went to bed, leaving you and Leder alone.
At approximately 3.30am, you walked Leder back to his caravan, which was only a short distance away. You went inside together and continued to talk, drink and, at times, argue.
Neighbours reported hearing arguing and yelling coming from Leder’s caravan throughout the night. The yelling came and went. One neighbour reported hearing yelling and screaming at about 6.25am, which included Leder telling someone to get out. Then everything went quiet again. The neighbour could hear two male voices talking inside Leder’s unit, but said that at that point it sounded ‘civilised’ again.
Very shortly afterwards, at around 6.40am, another neighbour heard banging coming from Leder’s caravan and went to investigate. He found Leder slumped unconscious on the ground inside the annex to his caravan, and saw you walking away. Leder was not breathing and was bleeding heavily from injuries to his head. The neighbour called ‘000’ and commenced ‘CPR’.
Police and, eventually, an ambulance arrived. Leder stopped breathing, despite the police, and later, paramedics, attempting to revive him. He was eventually conveyed by air ambulance to the Royal Melbourne Hospital, where he was placed in an induced coma in a life-threatening condition.
You remained at the scene, where you were arrested by police and conveyed to the Narre Warren police station.
On Thursday, 1 January 2015, Leder was pronounced dead by the medical staff at the Royal Melbourne Hospital.
On 2 January 2015, Dr Michael Burke of the Victorian Institute of Forensic Medicine conducted a post-mortem examination. The examination revealed widespread bruising and facial fractures, including bruising to the larynx and muscles overlying the larynx. There were a large number of facial lacerations.
It was established that Leder died of cardiorespiratory arrest leading to hypoxic brain injury. According to Dr Burke, the cause of Leder’s initial collapse is problematic. There were widespread injuries indicating a physical altercation. However, the cardiac arrest may have been contributed to by intoxication. The facial fractures could also have contributed to hypoxia by the presence of blood in the airway.
The Crown conceded that the possibilities that alcohol contributed to the death and that you may have acted in excessive self-defence could not be excluded.
The victim
Michael Leder was born on 29 February 1956 in Bairnsdale, Victoria. At the time of the incident that led to his death, he was 58 years old.
At a young age, Leder lived in the Frankston area where he attended a local primary school, and then went to Monterey Secondary College. After he left school, Leder was employed in a variety of jobs, including in retail and labouring. He was also a hobbyist photographer, doing occasional photography jobs and selling printed photographs at a stall at Tyabb Market from time to time.
About ten years before his death, Leder separated from his wife and had not been in any long term relationships since that time. He spent the last six years of his life living at the Tooradin Caravan Park, in an onsite caravan and annex. Leder was known to drink heavily.
Objective seriousness of offending
Intentionally causing serious injury throws up a great variety of circumstances concerning culpability. In sentencing you, I must have regard to the nature and gravity of the offence, and to your culpability and degree of responsibility.
The Crown submits that in assessing the seriousness of the offending, the Court should take into account the following factors:
(a) it was a sustained, protracted, vicious assault;
(b) the victim was vulnerable, given his age and state of intoxication;
(c) the offence occurred in the sanctity of the victim’s home;
(d) there was a breach of trust, given that you and the victim were friends; and
(e) the victim suffered multiple injuries.
I do not accept that the assault can be described as sustained or protracted, or that Leder was a vulnerable victim. The pattern of behaviour described by Ms Walker is that Leder was erratic and periodically hit and/or slapped you, before making light of it and resuming drinking and talking peaceably. It is open to infer, and I do infer, that there was the same or a very similar pattern of behaviour in Leder’s caravan after you had walked him home. That is, there was periodic arguing and fighting, initiated or largely initiated by Leder, followed by relative calm and the continuation of drinking and talking. In your record of interview, you said that the early fights were ‘just bullshit fights, just wrestles’, involving throwing things and so on. It was not until the last one that things got serious and that you felt like you had to knock Leder out because he just was not going to stop.
The fact that fighting took place in Leder’s caravan is in no way an aggravating factor given the pattern of behaviour described. You went to Leder’s caravan to accompany him home because he was intoxicated. Both of you were drinking heavily and both of you were intoxicated. In this context, the ‘sanctity’ of Leder’s home was already well compromised.
Nor do I accept that there was a breach of trust based on a friendship between you. You did not know one another well. You had met some time during the three week period that you had lived at the Tooradin Caravan Park. Leder was a recent acquaintance who you invited to dinner, having prepared too much food.
On the other hand, Leder suffered a number of injuries that were the product of the altercation or altercations with you. He had numerous lacerations on his face and head, facial fractures and bruising to many parts of his body. Judging from the photographs tendered on your plea, Leder was very bloodied from the fighting. Parts of you, particularly your jeans, were also covered in blood.
In my view, your offending falls in the low to mid-range of seriousness for the crime with which you have been charged. Leder suffered injuries that can only be described as serious that were inflicted by you. However, I accept that Leder behaved erratically and initiated the arguing and physical altercations that took place between you throughout the night. These altercations were not serious until the end, when, as you said, things did get serious and you threw your elbow at Leder’s face a number of times before leaving. You told the police you did this in order to get away, as Leder had ‘lost the plot’.
A number of mitigating factors were raised on your behalf, including your remorse, to which I will turn presently.
I move first to consider your personal history and circumstances.
Personal history and circumstances
You have been the subject of a psychiatric assessment by Dr Danny Sullivan, who prepared a report dated 22 April 2016 which, among other things, details your personal history and circumstances.
You were born on 1 January 1979 and were 35 years old at the time of your offending. You were born in Nambour, Queensland and moved to Victoria when you were two years old. Shortly after the move, your parents separated.
You told Dr Sullivan that you had only sporadic contact with your father throughout your childhood but that you have recently had some contact with him. You got on well with your mother, but in recent years you have lost contact with her. She worked as a dental nurse and, after separating from your father, re-partnered with a man you described as being violent and as having problems with alcohol. You told Dr Sullivan that you were treated cruelly as a child and were often beaten for small things. You ran away from home on numerous occasions, although child protection services were never involved.
You grew up in Essendon and Keilor, attending Airport West Primary School, where you had minor behavioural problems but were never suspended, expelled or required to repeat. You then attended Niddrie and Essendon High Schools, leaving halfway through Year 11.
After school, you did factory work and worked as a labourer in plastering and painting. You qualified as a chef and worked in kitchens. You developed an interest in computers and worked for a while fixing gaming machines. However, you had difficulty maintaining long term employment due to substance abuse as well as medical problems. You had significant periods of unemployment, particularly when you were struggling mentally and physically. At the time of your offending, you were unemployed and in receipt of Centrelink benefits.
You have been in a long term relationship with Ms Walker for more than 13 years and together you have three children, aged seven, five and nine months.
In November 2014, just before your offending, you spent four weeks in the psychiatric ward at Casey Hospital receiving treatment following a suicide threat. When you left Casey Hospital, you moved to the Tooradin Caravan Park on your own.
Psychiatric report of Dr Danny Sullivan
In his report, Dr Sullivan also detailed your medical and psychiatric history.
You have a bad back and you are awaiting neurosurgery to treat a range of neurological conditions, including pain in your left leg and foot. You also have a history of diverticulitis, which causes infections of the intestine, and irritable bowel syndrome. These medical conditions are relevant to the hardship that you have suffered in custody on remand and that you will continue to suffer when serving a term of imprisonment.
As to your psychiatric history, Dr Sullivan states that you first reported depression at the age of 18 or 19 and that you were prescribed anti-depressants, which you stopped taking due to unwanted side effects. However, when you stopped taking the anti-depressants, your mental state deteriorated. You stopped going to work and withdrew socially. You have a history of self-harm and have been voluntarily hospitalised on three occasions following incidents of self-harm.
You are currently taking medication to reduce gastro-oesophageal problems and mirtazapine, an anti-depressant. You rated your mood as 2/10 at the time of Dr Sullivan’s report.
You told Dr Sullivan that you started drinking alcohol at the age of 15 and by the time you were 16 you were drinking every day. You have acknowledged that you are an alcoholic and, while you have stopped drinking on a number of occasions, you have been unable to remain abstinent. You also reported using cannabis, cocaine, LSD, ecstasy and GHB, and at times abusing prescription medication, but you have only persisted with the use of cannabis and alcohol.
Dr Sullivan states that you have a clear diagnosis of polysubstance abuse and dependence in relation to cannabis and alcohol and a history of past amphetamine abuse. He also made a provisional diagnosis of recurrent depressive disorder, and a mixed personality disorder with borderline (emotionally unstable) antisocial and narcissistic traits, the latter of which occur in the context of intoxication and withdrawal.
Dr Sullivan also states that you are likely to be suffering a mild-moderate post-traumatic stress disorder, involving nightmares and flashbacks.
Dr Sullivan recommends further trials of medication to improve your level of functioning, and intensive drug and alcohol treatment involving absolute abstinence. Dr Sullivan also recommends that you be assessed for a moderate to high intensity violence intervention program and that a formal personality assessment be conducted through Corrections Victoria.
It is plain that you have a number of psychological problems that need to be addressed, including drug and alcohol issues.
Your prospects of rehabilitation are linked to those problems being successfully addressed.
Previous offending
You have had a number of previous interactions with the criminal justice system.
Your criminal record lists 18 offences from eight court appearances over some 15 years, involving a number of convictions for assault. These convictions are relevant to the need for specific deterrence, as well as to your prospects of rehabilitation.
On 21 March 1997, you were convicted of robbery and assault with intent to rob. Your counsel told the Court that this incident occurred when you were working in a plastics factory where you had formed a friendship with a female colleague. She had complained about a man who was sexually harassing her at the factory. You and a friend assaulted this man in the street and, for some reason, you also took his wallet. Your counsel states that this incident was associated with drinking and that you were only about 18 years old at the time.
You were given a community‑based order for this offending but did not complete the order, due to a lack of stable accommodation, drinking too much and using cannabis. You were given a three month suspended sentence for the same offences in 1999.
You were convicted of assault on 1 July 2002 and given a $3,000 fine. Your counsel told the Court that you cannot remember the circumstances of this offending.
On 27 April 2004, you were convicted of intentionally destroying property. Your counsel told the Court that the incident occurred when the father of a woman to whom you had formed an attachment called you a ‘good‑for‑nothing’. An argument escalated and you kicked, and presumably destroyed, a letter box.
Of significance is your conviction in 2008 for recklessly causing injury. You instructed your counsel that the conviction related to an incident involving your then landlord. The landlord attended the premises without notice to carry out an inspection and you argued with him about whether he had to give notice. You were in a towel, having just got out of the shower. You and the landlord went out onto the street, and the argument escalated, ending with you assaulting the landlord.
You were also convicted of assault for an incident on 21 August 2012, when you made threats to your partner, Ms Walker. You were placed on a bond to complete a men’s behaviour change program.
The Court was informed this morning of further charges against you arising from an incident in April 2014 involving police and ambulance officers who attended when you threatened to commit suicide. You have been charged with threatening to kill a police officer and the Magistrates’ Court has deferred dealing with that matter pending the outcome of this sentencing hearing.
Remorse
Your counsel submitted that your guilty plea should be regarded as a plea at an early stage that is consistent with remorse. He submitted that your remorse is further evidenced by the fact that you remained at the scene, where you were arrested. You also expressed remorse in your interview with the police.
I accept this submission. I find that you are genuinely remorseful for your actions in seriously injuring Mr Leder. Your remorse is relevant to the need for specific deterrence and to your prospects of rehabilitation, to which I now turn.
Prospects of rehabilitation
Your counsel submitted that this is the first time that you have been placed in custody immediately upon offending, and that the experience has had significant value as deterrence. You are regretful of your actions and keen to reform.
You have the strong support of your partner, Lisa Walker (who now goes by the name ‘Ely’ to emphasise the stability of your relationship). Ms Walker has relocated to Geelong in order to support you while you are in custody. She has written a letter to the Court pledging her support for you and stating that you are an excellent father to your children, always putting their needs above your own.
Ms Walker/Ely has made it clear that she and the children are there to support you, whether you are in prison or in the community. Upon your return to the community you will have a stable home, and responsibilities as a partner and parent which, by all accounts, you will relish – provided that you receive treatment for your substance abuse and depression and do not relapse.
Your friend Christopher Manie also gave evidence on your behalf. He has known you for many years and spoke highly of your personal qualities. He too described you as ‘a fantastic father’, and as a ‘warm’ and ‘caring’ person who is ‘generous to a fault’. Mr Manie gave evidence of your skills with computers. He said that once you are released he may be able to offer you work on a casual basis fixing and/or rebuilding computers and that when he is in a position to hire in his new IT business, he would like to offer you work more stable work.
Based on the evidence from Ms Walker/Ely, Mr Manie and Dr Sullivan, I am satisfied that you have good prospects of rehabilitation. However, this will require you to receive proper treatment for substance abuse and depression.
Sentence
The offence of intentionally causing serious injury carries a maximum penalty of twenty years’ imprisonment.
In sentencing you, I must consider the objective nature and gravity of your offending and your moral culpability.
I have found your offending to fall in the low to mid-range of seriousness for the offence of intentionally causing serious injury. Your moral culpability is not as high as in many other cases of offending of this kind.
I accept that you are remorseful for your actions and that, with treatment, not withstanding your criminal history, you have good prospects of rehabilitation. This lessens the need for specific deterrence.
Your counsel submitted that your chronic back pain, diverticulitis, irritable bowel syndrome and depression make imprisonment particularly burdensome for you.
I also accept this submission.
However, general deterrence is an important sentencing consideration in this case. In sentencing you, the court must send a clear message that behaviour of this kind is unacceptable. Just punishment and denunciation are also relevant sentencing considerations.
Your counsel submitted that a Community Correction Order in conjunction with a short term of imprisonment would be an appropriate disposition. I agree. Having regard to the recommendations in Dr Sullivan’s report, your psychological difficulties, your long history of substance abuse and the nature and extent of your previous convictions, I consider that your rehabilitation would be greatly assisted by the programs, treatment, and supervision available through a Community Correction Order.
You would not have such opportunities in prison. As a result, the imposition of a Community Correction Order is in the interests of the community as a whole, in that, with suitable conditions, it offers you a real chance of rehabilitation. With an appropriate condition for unpaid community work, a Community Correction Order will also serve the end of further punishing you for your offending.
The Court asked for you to be assessed to determine your suitability for a Community Correction Order. Community Correctional Services has assessed your general risk of re-offending as medium. However, you have been assessed as suitable for a Community Correction Order with an unpaid community work condition, a treatment and rehabilitation condition and a supervision condition recommended. The treatment and rehabilitation condition would include drug assessment and treatment, alcohol assessment and treatment, mental health treatment and offending behaviour programs.
Balancing all of these considerations and your plea of guilty, which has utilitarian value as well as reflecting your remorse, I sentence you as follows.
You are convicted of intentionally causing serious injury to Michael Leder on 31 December 2014.
I sentence you to a term of one year and nine months imprisonment and, pursuant to s 37 of the Sentencing Act 1991, order you to serve a Community Correction Order for two years commencing on the date of your release from prison.
A term of imprisonment combined with a Community Correction Order for a period of two years, with an unpaid community work requirement of 100 hours, a treatment and rehabilitation order and a supervision order, is an appropriate disposition, in that it serves both the purposes of general deterrence and just punishment, and promotes your rehabilitation and re-integration into the community by giving you access to specialist treatment and rehabilitation programs and sufficient time in which to complete them. Such a sentence is, in my view, proportionate to the gravity of your offending and your moral culpability.
The Community Correction Order will include the following special conditions:
(a) You must perform 100 hours of unpaid community work over a period of 24 months as directed;
(b) You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed;
(c) You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed;
(d) You must undergo mental health assessment and treatment, including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed;
(e) You must engage in any program that addresses factors related to your offending behaviour, as directed; and
(f) You must be under the supervision of a Community Corrections Officer for a period of 24 months.
I declare that the period of pre-sentence detention reckoned as having been served is 504 days up to but not including today and direct that this declaration and the period be entered into the records of the Court.
I further declare pursuant to s 6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a term of imprisonment of 24 months with a non-parole period of 23 months and a Community Correction Order of the same duration.
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