R v Kellisar - [2001] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 206 of 1999

THE QUEEN

TONY KELLISAR

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JUDGES:	WINNEKE, P., BROOKING and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2001
DATE OF JUDGMENT:	4 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 224

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Criminal law - Sentence - Premeditated and carefully planned murder of wife - Premeditated destruction of body in acid bath - Heartless lies and pretences - Entire absence of remorse - Sufficient weight given to applicant's cultural isolation in prison - Disposal of body aggravating factor - 22 years with non-parole period of 18 upheld - Applicant lucky to escape life sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. and Mr M.J. Croucher	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.E. Dean, S.C.	Victoria Legal Aid

WINNEKE, P.:

I will invite Brooking, J.A. to give the first judgment in this application.

BROOKING, J.A.:

Tony Kellisar murdered his wife on 16 November 1997. He disposed of the body in an acid bath, using a big plastic rubbish bin as the container. Convicted after a trial that went for 22 sitting days, he was on 2 September 1999 sentenced to imprisonment for 22 years, with a non-parole period of 18. He sought leave to appeal against his conviction, but abandoned that application last month. And so it is not until today that his application for leave to appeal against sentence comes before us. Up to a fortnight ago, the only ground was manifest excess. But, by amendment, that ground has been relegated to third position, preceded by one ground asserting that the judge did not give enough weight to the applicant's isolation in prison from family, culture and society, and another ground alleging that the judge gave too much weight to the use of the acid bath.

The reference to isolation from his family is, of course, not a reference to the wife he killed or his stepchildren, who have lost their mother. It means his parents in Iran, a country he left some time in the 1980s, going to India. He arrived in Australia in 1990. On the plea, his only friends in Australia were said to be in New South Wales, so that he was alone in this State. That is the consequence, so far as his New South Wales friends are concerned, of his killing his wife in Victoria in the hope that his murderous visit here would never become known.

That flying visit, and the planning of it and of the murder, and his premeditated destruction of the body, and the steps taken by him to escape detection, both before and after the killing, including his heartless lies and pretences, and his entire absence of remorse and constant denigration of his victim, all mark this case off very much from many killings of wives, husbands and companions and

make it a bad, indeed I would say very bad, case. Having said that I had…

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 Kellisar

Details

AGLC: R v Kellisar [2001] VSCA 224
Case: [2001] VSCA 224
Decision Date: 4 December 2001

CaseChat Overview and Summary

In the case of R v Kellisar, the defendant was convicted of the premeditated murder of his wife, which included the disposal of her body in an acid bath. The case was heard and determined by the court of appeal. The central dispute was the appropriate length of the sentence for the defendant's heinous crime, specifically whether the sentence imposed by the lower court was adequate given the severity of the offence.

The legal issues before the court involved the assessment of aggravating and mitigating factors in the sentencing process. The court had to consider the premeditation and brutality of the murder, the absence of remorse shown by the defendant, and the disposal of the body as an aggravating factor. Additionally, the court evaluated the defendant's cultural isolation in prison as a mitigating factor. The primary concern was whether the lower court had appropriately balanced these factors in determining the sentence.

The court of appeal found that the lower court had correctly identified and given sufficient weight to the aggravating factors, particularly the premeditation and disposal of the body. While the court acknowledged the mitigating factor of cultural isolation, it determined that this did not outweigh the severity of the crime. The court held that the sentence of 22 years with a non-parole period of 18 years was appropriate, given the circumstances. The court expressed that the defendant was fortunate to avoid a life sentence, given the nature of his crime and the lack of remorse.

Orders