R v Kell & Dey - [2009] VSC 90

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1671 of 2008

THE QUEEN

SIMON NICHOLAS KELL

and

ROBIN DEY

First Accused

Second Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-5, 8-12, 15-18 December 2008, 28-29 January 2009
DATE OF RULING:	19 March 2009
CASE MAY BE CITED AS:	R v Kell & Dey (Sentence)
MEDIUM NEUTRAL CITATION:	[2009] VSC 90

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CRIMINAL LAW – Sentence – Manslaughter – Remorse – Jury unable to determine which offender caused the death – Each blames the other – Acting in concert – Sentence consistent with jury verdict – Offer to plead guilty to manslaughter and/or defensive homicide – Whether indicative of remorse or acceptance of responsibility – Prospects of rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Rose SC	Office of Public Prosecutions
For the First Accused	Mr T. Danos	Clarebrough Pica
For the Second Accused	Mr W. Stuart	Galbally & O’Bryan

HIS HONOUR:

Simon Kell and Robin Dey, you have both been found guilty by a jury of the manslaughter of Tyrone Shepherd at premises occupied by Sarah Kell, the sister of you, Simon Kell, on 26 June 2007. You were both originally charged with the murder of Mr Shepherd and, having pleaded not guilty to that charge, your trial was held before me over 14 days in December 2008. On 18 December 2008 the jury found you both not guilty of murder, not guilty of defensive homicide, but guilty of manslaughter.

The maximum penalty for the offence of manslaughter is 20 years’ imprisonment and I am aware of the significance of that maximum.[1]
[1]See generally R v AB (No. 2) (2008) 18 VR 391.

The Circumstances of the Offence

In summary, the circumstances under which you both committed this offence was as follows. You were known to each other and were friends as a consequence of both having attended the same secondary school.

Sarah Kell had maintained a relationship with Tyrone Shepherd over a period of approximately 18 months commencing on or about Christmas 2005. On any view the relationship was problematic and in her evidence Ms Kell described various incidents during that time which involved violence between her and Mr Shepherd which she said he initiated. As a result, from to time the relationship broke down. As at 26 June 2007, the relationship had again broken down and Ms Kell and Mr Shepherd had not been in regular contact for a period of three weeks.

During that time of separation between Ms Kell and Mr Shepherd, a sexual relationship had developed between Ms Kell and you, Robin Dey.

On the morning of 26 June 2007, at about 5:00 am, Mr Shepherd visited Ms Kell at her home at 213 Huntingdale Road, Ashwood. Shortly after that he was directed by her to leave, which he did. She gave evidence that 15 minutes later she rang you, Robin Dey, and told you that Mr Shepherd had been at her…

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 Kell & Dey

Details

AGLC: R v Kell and Dey [2009] VSC 90
Case: [2009] VSC 90
Decision Date: 19 March 2009

CaseChat Overview and Summary

In the case of R v Kell and Dey, the High Court of Australia was presented with a complex sentencing matter arising from a joint criminal enterprise that resulted in the death of a person. The two appellants, Kell and Dey, were convicted of manslaughter for their involvement in a joint criminal act that led to the victim's death. However, the jury was unable to determine which of the two appellants directly caused the death, as each blamed the other. Despite this uncertainty, both appellants were found to have acted in concert and were thus jointly liable for the manslaughter. The primary legal issue before the court was to determine an appropriate sentence for each appellant that was consistent with the jury's verdict, while also considering factors such as remorse, offers to plead guilty, and prospects of rehabilitation.

The court emphasised the importance of tailoring the sentence to the individual circumstances of each appellant, recognising that while both were equally culpable, their personal characteristics and actions might warrant different sentences. The court examined the appellants' behaviour post-offence, including their offers to plead guilty to manslaughter or defensive homicide, to assess whether these were indicative of remorse or an acceptance of responsibility. The court also considered the prospects of each appellant's rehabilitation and their potential to reoffend. Ultimately, the court balanced these factors against the need for the sentence to reflect the gravity of the crime and to serve as a deterrent.

In delivering the judgment, the court acknowledged the difficulty in determining the exact contribution of each appellant to the fatal outcome but held that both should be held equally responsible for the manslaughter. The court recognised the appellants' offers to plead guilty as an indication of remorse but noted that these offers were conditional and came late in the proceedings. The court also assessed the prospects of rehabilitation for each appellant, finding that while both had potential, the specific circumstances of their lives and backgrounds warranted different sentencing outcomes. The final orders of the court reflected this nuanced approach, imposing sentences that were consistent with the jury's verdict and took into account the individual characteristics and circumstances of each appellant.

Orders