R v Kelson
[2018] VSC 442
•10 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0251
| THE QUEEN | |
| v | |
| THOMAS KELSON | Accused |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 August 2018 |
DATE OF SENTENCE: | 10 August 2018 |
CASE MAY BE CITED AS: | R v Kelson |
MEDIUM NEUTRAL CITATION: | [2018] VSC 442 |
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CRIMINAL LAW – Sentence – Murder – Plea of guilty – Offender struck deceased to head with knuckledusters – Offender disposed of body of deceased in disused mineshaft – Various factual matters in dispute – Where co-offender gave evidence in contested plea – Whether offender had intention to cause death or really serious injury at the time of offence – Serious instance of murder – Sentence of 24 years’ imprisonment with non-parole period of 19 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M J Rochford QC | Mr J Cain, Office of Public Prosecutions |
| For the Accused | Mr S R Johns QC | Valos Black & Associates |
HIS HONOUR:
Introduction
Thomas Kelson, you have pleaded guilty to the murder of a 17-year-old child, Cayleb Hough (‘Hough’), whom you killed by striking repeatedly to the head while wearing knuckledusters. The maximum penalty for murder is life imprisonment. You have also admitted prior convictions contained in a criminal record filed in this matter.
Circumstances of Offending
Your murder of Hough occurred in exceedingly strange circumstances. The two of you were friends, you being 26 years old at the time, and Hough being 17. Both of you had been users of drugs, including cannabis and ice, for some time leading up to the events in question. Whilst there was some evidence of previous conflict between the two of you,[1] other evidence points to a somewhat protective attitude you took towards Hough.[2]
[1]Statement of Amy Wright (12 January 2016) 2 (Depositions 390).
[2]See, eg, statement of Jemima Mogueis (3 March 2016) 3 (Depositions 312).
Events on 18 and 19 December 2015 leading up to the murder
On the evening of Friday 18 December 2015, you both attended a party at a residential address in Skye. The party continued off and on until the early hours of Sunday 20 December 2018. You both remained at the Skye address for much of that period. You both consumed alcohol and used drugs during the course of that time. Both of you were observed to be on edge and significantly drug-affected as time went on. You and Hough were described by one of those at the party as appearing ‘scattered and all over the place’[3]. You were seen in possession of a large bag of ice and also a set of knuckledusters that you showed to people.[4] One witness said that you and Hough were using ice and stayed up all night on the Friday. All in all, the evidence of those at the party is suggestive of your having used cannabis, ecstasy and ice during the party, and of your behaviour having substantially deteriorated as a result.
[3]Statement of Amy Wright (12 January 2016) 2 (Depositions 390).
[4]Statement of Kirra Paterson (25 February 2016) 5 (Depositions 413).
On the day of the murder and subsequently, including to the psychiatrist Dr Adam Deacon, you claimed to have had a belief that you were slipped some GHB while at the party in Skye and to have felt affected by this substance. Indeed, on 24 December 2015, a few days after the murder, you telephoned a friend, Ashleigh Pitura, and accused her of having ‘juiced’ you up. She denied this allegation. There is no evidence that supports the belief that you apparently had of being secretly fed an illicit drug by another person. Nor is there anything to suggest that, if you did have such a belief, it had any bearing on the commission of your eventual crime.
On 20 December 2015, in the early hours of the morning, you and Hough left the Skye party in your blue Ford XR6 motor vehicle and then, at about 5.00am, attended at the home of the Morgan family in Highett. You both went to the front door, waking the occupants with your knocking. When Scott Morgan answered the door, Hough said that he needed to speak to Morgan’s son, Reave, and that he and you were in trouble and needed help. Mr Morgan noticed that you were both badly affected by drugs, were out of control, and were talking in riddles.[5] The two of you were not seen to be aggressive. One of you asked to use a mobile phone. A phone was provided and seemingly used by Hough. You were told by the Morgans to leave the location, and you drove off. Within an hour, you and Hough returned. After some further time there, the two of you departed again.
[5]Statement of Scott Morgan (13 January 2016) 2 (Depositions 88).
Events at Dight Street Collingwood on 20 December 2015
Later that morning, at a time which is unclear, the two of you attended at a residential address in Dight Street, Collingwood, which was the home of a friend of yours, Nathan Bordonaro, and his mother, Debra Brincat. Present at the house at the time were Bordonaro, his mother, and Bordonaro’s two children. Bordonaro noted that your behaviour was not normal.[6] He smoked ice with you a number of times during the course of your stay at the premises.
[6]Statement of Nathan Bordanaro (21 April 2016) 2 (Depositions 212).
Shortly after your arrival there, you started talking about bikies, your father, and of the proposition that Hough might have had something to do with your father’s disappearance. For some reason which is not clear, you accused Hough of being involved. According to Bordonaro, Hough neither admitted nor denied such involvement, but apparently indicated that he had some knowledge of your father having been kidnapped. Keen to avoid his children witnessing the scene that you were creating, Bordonaro told you to go to the laundry to ‘sort it out’.
The three of you did go to the laundry, and Bordonaro described you as having ‘lost it’ there, during the course of a continuing argument with Hough, in which you continued to make accusations against him. Over a period of time in the laundry, you struck Hough repeatedly to the head, causing a blood nose on one occasion. Bordonaro tried to reason with you and to have you stop the continuing assaults upon Hough, but you would not see reason. Bordonaro described you as hitting Hough so that you could get an answer out of him. He said that Hough kept changing his answer, and ‘didn’t help his cause’. Throughout the time in the laundry, you said things indicating that you believed your father was missing or dead.
After a time, Bordonaro decided to take his children to a friend’s house in Northcote to get them away from what was happening. He left the house with his children. At that time, according to Bordonaro, Hough had not made any admissions of involvement in kidnapping or harming your father. Bordonaro dropped his children off in Northcote, purchased some takeaway food in Clifton Hill, and returned home.
By this time, you and Hough had returned to the lounge room. You were on your feet, ‘ranting and raving’ at Hough, who was seated on a couch. Again, as Bordanaro observed it, Hough was neither denying nor admitting your repeated accusations, was being ‘cheeky’ towards you, and was ‘not helping his cause at all’. Bordonaro tried to calm you down, without success.
Shortly after Bordonaro’s return to the house, you took Hough back into the laundry, continuing your repeated demands to know where your father was, and what he had done with him. Sometimes, Hough denied any knowledge of what had occurred; other times, he indicated that he had some knowledge. In the laundry, you struck him again, and cut him with a kitchen knife which was in the room, causing a deep gash to his forearm. Bordonaro and Brincat cleaned up the cut with alcohol and tissues and wrapped it in a T-shirt or cloth and, later, in a tea towel. By that time, a third person, Fred Shanks,[7] had arrived at the house. Bordonaro, Brincat and Shanks all told you that Hough should be taken to hospital.
[7]The identity of this person is the subject of a suppression order. To ensure that the person cannot be identified, a pseudonym has been adopted in the place of his name.
Debra Brincat, the mother of Bordonaro, was also present at the house as these events had unfolded, but it is apparent that there is much that she did not observe. She claimed that she had seen only one punch by you of Hough, that she did not see you stab him, and that she did not go into the laundry where much of the continuing assault took place.[8] She observed some of the continuing argument between you and Hough and saw you becoming very agitated with Hough because of your belief that he had in some way ‘gone to the enemy’. You apparently had concerns about the wellbeing of your father and brother and were suspicious that he had some knowledge of their fate. After you had punched him in the living room and then stabbed him in the laundry, you said to Hough, ‘My Dad’s missing. Go on, Cayleb, you tell them what’s happened … Tell how you’ve gone to the enemy … Go on, tell them about my Dad. Is my Dad alive or what?’ According to Brincat, the allegations and denials were going ‘back and forth over a few hours’. Eventually, after the arrival of Fred Shanks, Hough admitted knowledge of and involvement in the disappearance of your father, and even that he had been sexually assaulted. Some mention was also made of your brother, about whom you also had concerns. You became increasingly distressed as these revelations, which were entirely false, were made by Hough under the pressure you brought to bear on him.
[8]Transcript of recorded witness interview with Debra Brincat (Depositions 99–210).
As I mentioned, a third person present at the house in Collingwood during some of these events was Shanks.[9] Shanks, who lived in Ballarat, had received a phone call from Bordonaro in the morning requesting his attendance at the house. Shanks drove from Ballarat to Collingwood. On his arrival, events between you and Hough were already well advanced. You had already struck Hough and inflicted the cut upon his arm. Hough also had facial swelling and two black eyes. Shanks observed you to be drug-affected and ranting and raving. All efforts of Shanks and others to calm you down, including his providing a joint to you, failed. You listened to no one. Shanks heard Hough, after denials, admit to having raped and shot your father due to some situation concerning bikies. This admission took place in the context of repeated accusations by you and also repeated punches by you to the head and body of Hough. You were seemingly both upset and angry at the revelations of Hough.
[9]See Statement of Fred Shanks (22 May 2017) (Depositions 250–65).
Shanks, in the statement he made to police on 22 May 2017, indicated that, after these admissions were made by Cayleb Hough, you said to him, ‘You’re gunna die today. You killed my dad. Where’s me dad? Is the rest of me family alright? You’re gunna die today. You’re gunna die today. I’m gunna kill ya.’[10] This evidence was one of the areas of dispute in your plea hearing.
[10]Statement of Fred Shanks (22 May 2017) 6 [25] (Depositions 255).
You apparently used a mobile phone to contact family members, but were unable to contact anyone, at least to receive any assurance as to the safety of your father.
Shanks observed Brincat trying to calm you down, saying, ‘Think about what you’re doing … Are you sure you know what you’re doing mate? … Have a good think about it.’ Such efforts to calm you down went for several hours. All efforts failed.
Eventually, according to Shanks, you asked him if he knew a location where Hough could be put. As you said to him, ‘You’re always in the bush. You’ve got to know somewhere.’ Shanks claimed he informed you of a shallow mine shaft of which he became aware when taking part in a forest operator licence course in the Lerderderg State Forest.[11] This evidence is another area of dispute.
[11]Statement of Peter Trew (18 May 2016) 2 (Depositions 722).
According to Shanks, at a time when Bordonaro had left the premises, but Brincat was still present, you bound Hough with the use of grey duct tape, some of which was used to secure his hands together at the front of his body, and some of which was placed over his mouth. You did this in spite of Shanks and Brincat continuing to ask you to consider what you were doing. Whether you taped up Hough is another disputed fact in this case.
Departure from Dight Street and the murder of Cayleb Hough
You asked Shanks to bring your car to the front of the premises. Before leaving the house with Hough, you said to him, ‘If you fuck around out the front I’m gunna stab you.’ You then led Hough from the house and out to your car, placing him in the rear seat. At that point, Hough was well and truly alive, and sitting up in the rear compartment of your car.
Shanks said that he told you of the route to take, namely, the Ballarat Road, and that he then drove his vehicle in convoy with your car, with his vehicle the following vehicle, until he took the front position after the Bacchus Marsh turn-off. He also indicated that he had received a phone call from Bordonaro before leaving the Collingwood address and then picked up Bordonaro on the way.
Although the account of Shanks did not indicate an occasion on which your car stopped during the journey, on your account given to the psychiatrist, Dr Deacon, Hough kicked you in the back of the head while you drove along. You stopped the car and struck him to the head with the knuckledusters, killing him. You described yourself as having ‘lost it’ and having gone ‘ballistic’ during the assault, with thoughts of what had happened to your father. In the police interview,[12] you said, ‘He was kicking me. I just snapped … It was the brass knuckles that killed him. He knew when I hit him. I’m not sure how many times I hit him, I just lost it. I was thinking about my dad getting…’.[13] When asked where the attack had occurred, you said, ‘He was in the back of my car … We were fighting, just lost it.’[14] When asked where the car was at the time, you said, ‘In a road somewhere in Melbourne travelling around.’[15] When asked how you knew that Hough was not just unconscious after this attack, you said, ‘No, he was dead. He was cold, like, he was fucked.’[16]
[12]Transcript commences at page 3949.
[13]QQ 184-186.
[14]Q 136.
[15]Q 137.
[16]Q 190.
On the plea, the version of events on which your counsel relied was the version given to Dr Deacon of your having stopped the car and having struck Hough to the head with the knuckledusters, losing it, and causing his death in that fashion. I am prepared to sentence you on that basis.
The disposal of the body of Cayleb Hough
The evidence of Shanks indicated that he drove to a secluded area of the Lerderderg State Forest with which he was familiar. You followed him to that location. Evidence contained in the depositions indicates that the area was within a logging coupe near the Bacchus Marsh-Gisborne Road several kilometres from Bacchus Marsh. There was a disused and incomplete mine shaft that had been shown to him by a colleague the previous month when he had been engaged in the forestry course to which I have already referred.
Shanks said that, upon his arrival at the Lerderderg scene, both cars were stopped and he saw you drag Hough from the rear of his vehicle. He believed Hough to be deceased. There was still duct tape around his hands, mouth and head. You then asked Shanks to help you drag Hough, whom you had already placed on some sort of tarpaulin that you had also removed from your vehicle. You said Hough was too heavy for you to drag on your own. Being frightened of meeting the same fate as Hough, Shanks complied with your request for assistance, and the two of you dragged the body of Hough to the shallow mine shaft. On the way, Shanks heard you saying, ‘You shot me dad. You raped me dad. You’re a dog.’ You pushed the body of Hough into the mine shaft and climbed down there yourself. While in the mine shaft, according to Shanks, you cut the tape off Hough. You were heard to continue to rant and rave about your father. Shanks left at this point and returned to his vehicle, in which Bordonaro had remained. Shanks and Bordonaro left the scene in Shanks’s vehicle. You departed separately in your own vehicle.
Your conduct in the aftermath of the murder
Having left the scene at Lerderderg State Forest, you returned to Melbourne. You disposed of the knuckledusters in a drain in an unknown location.[17] You made a prompt decision to leave the country. You drove to Sydney and, from there, you flew to Argentina where you remained for a month or so, intending, initially, never to return. In the end, you decided to return and were arrested at the airport on 26 January 2016.[18]
[17]Q 208.
[18]Report of Dr Adam Deacon (13 October 2017) 5.
You were interviewed for the first time by the Homicide Squad on that day, and exercised your right to make no comment to allegations that were put to you. You were released from custody on that day, and nominated a location in Doveton where you claimed you had last seen Cayleb Hough.
Discovery of the body and autopsy
On 10 March 2016, a member of the public discovered the remains of Cayleb Hough where you had disposed of him some two-and-a-half months earlier. It was in an area that was not visible from the road and was obscured by low shrubs and vegetation. On an examination of the scene, police found a large bundle of grey duct tape on the ground 44 metres from the mine shaft. Another smaller length of tape was located a few metres from the main bundle of tape. The DNA of Hough was located on some of the tape.
An autopsy was carried out on 15 March 2016 by the pathologist, Dr Wu.[19] The body of Hough was largely skeletonised with limited soft tissue remaining. Hough was still partially clothed. The autopsy examination and a further examination by a Forensic Anthropologist, Dr Blau, revealed the existence of a fracture to the maxilla (upper jaw) and a fracture to the mandible (lower jaw). Dr Wu considered these injuries to be the result of blunt force trauma and the absence of healing changes to the injuries to be suggestive of the fractures having been caused close to the time of death. The cause of death could not be ascertained due to the very substantial decomposition of the body.
[19]See Autopsy Report (24 June 2016) (Depositions 227).
Second interview with police
You were interviewed for a second time by the Homicide Squad on 1 June 2016.[20] You admitted to having killed Hough, but in a number of respects your answers were not truthful.
[20]Transcript commences at 3949.
Disputed facts
As outlined in a document provided to the Court entitled ‘Circumstances of offence and disputed facts’ and expanded upon in submissions by Mr Johns QC on your behalf, there were three main factual matters in dispute on the plea. I will deal with each of these in turn. Before doing so, I note that the factual disputes having been brought to the attention of the prosecution, the prosecution called Fred Shanks to give evidence during the plea. Having been sentenced on 20 September 2017 by Beale J for assisting an offender, Shanks was then called by the prosecution at the committal hearing in this case on 19 October 2017. He attested to the truthfulness of his statement and was cross-examined by Mr Johns. I have read the transcript of that cross-examination. I then observed Shanks give evidence before me, during which he was challenged in a number of respects by Mr Johns. I carefully took into account those submissions of Mr Johns that were aimed at dissuading me from accepting the evidence of Shanks in proof of the disputed areas of evidence on the plea.
I will expand on this as I deal with the individual matters, but I can indicate generally that I found Shanks to be an impressive witness whose credit was not harmed during cross-examination despite Mr Johns’ best efforts. In my view, that accords with the way in which the witness gave evidence at the committal hearing. I consider his overall account as set out in his statement and detailed in his evidence to be a truthful and accurate one. I also note that I considered the account of Shanks not in isolation but in the context of all the other evidence in the case, some of which was supportive of the correctness of his account and some of which was not.
For completeness, I mention the fact that you did not give evidence on the plea hearing. I raised with counsel whether that fact could be used by me when it came to deciding the facts in this case. Both your counsel and the prosecutor urged me to make no use of your failure to give evidence on the plea in reaching my decisions on the disputed facts. In the circumstances, I have not made any use of your failure to give evidence on the plea.
I now turn to the individual matters in dispute.
The taping up of Cayleb Hough
In his statement, Shanks spoke of your having used grey duct tape to bind the hands of Hough together and to his side, and of your having placed further tape around his mouth and head. In his evidence before me, he described the tape in a way that was consistent with the appearance of the grey duct tape found near the mine shaft where you disposed of the body of Hough. It is of great significance that, in his statement, Shanks described you getting down into the mine shaft to cut off the tape. Also of great significance is the fact that a large bundle of used duct tape was found 44 metres away from the body, with a smaller section nearby. The circumstances of the location of these sections of tape and the finding of the DNA of Hough on some of the tape is compelling evidence that this tape was used to bind Hough before his death.
Mr Johns sought to explain the presence of the tape at the scene by its being consistent with having been used by Brincat to tape a tea towel to the arm of Hough to stem the bleeding from the cut inflicted by you. One problem with that is that there was no evidence from Brincat or any other person that a tea towel or cloth was taped to your arm, as opposed to being simply wrapped around it. Another is that, as Mr Rochford QC for the Crown put it, there was an amount of used tape that would far exceed that which could sensibly have been required to secure a tea towel to an arm. A further difficulty with Mr Johns’ contention is that, if tape had been used to bind a cloth or tea towel to your wounded arm, there would have been no reason for you to cut the tape off and to discard it some distance from the body when you left the scene. If, on the other hand, you had bound Hough with tape, as Shanks attested, you might have seen the desirability of removing the tape when you left the body and discarding it some distance away so that it would not be apparent in future that Hough had been bound with tape when you had murdered him.
Mr Johns made the point that no witness other than Shanks observed the duct tape on Hough. That is true, but it does little to take away from the force of Shanks’s account. In the case of Bordonaro, he had left by the time the tape was applied. As for Brincat, there are many things that occurred in the house that night that she did not observe. There is no evidence that she was in the immediate vicinity when the tape was applied. As for her failure to observe the tape when she saw you taking Hough out to your car, she may have witnessed that event from a position and in circumstances including darkness or fading light where she may simply have not seen it. Alternatively, bearing in mind that Brincat had been present for many hours that day when Hough was being assaulted in her house and she did nothing to report it or bring it to an end, and that the account of Shanks indicated that Brincat’s son, Bordonaro, was actually present at Lerderderg when the body was disposed of, there may have been good reason for Brincat to be less than frank when describing the events of that day and night.
All in all, I am satisfied beyond reasonable doubt that you did apply tape to the person of Cayleb Hough as indicated by Shanks and that the tape was still in place at the time you murdered Hough. That you beat a young person to death while the person was bound by tape, rendering him less able to resist, is a significant aggravating feature of your crime.
The threats to kill by you at Collingwood
The evidence of Shanks of the threats that you made to Hough to kill him needs to be seen in the context of all the surrounding evidence, including the extreme animosity you bore towards him on that day, the substantial violence you showed towards Hough before and after the threats, and the fact that, within a relatively short space of time after the alleged threats, you had beaten him to death in a brutal fashion.
On all of the evidence, I am satisfied beyond reasonable doubt that you did utter these threats, which, whether you intended to act on them or not, must have caused extreme alarm and fear to your young victim from the time the threats were made up to the time of his eventual murder.
The plan to go to Lerderderg before the death
Shanks gave a very clear account of having been asked by you to provide a location for the disposal of the body of Cayleb Hough, and of his having provided the location where you eventually disposed of the body. His account explains the otherwise extraordinary event of you and Shanks heading off in convoy towards Bacchus Marsh with Hough bound by tape in the rear seat of your vehicle. The scenario that was put on your behalf in this Court that when you left the Collingwood house your intention was to take Hough to hospital, but that after you had killed him on the spur of the moment you then were provided by Shanks with the location in Lerderderg, is unrealistic in the extreme. First, I believe that it is implausible to think that it was ever your intention to take this young person to hospital. You had resisted all attempts of Brincat and others to calm you down and desist from your continuing assault of Hough. You had inflicted a sustained beating upon him that day, including the use of a knife to cause a serious cut to his arm. You believed that he may have been responsible for the death of your father. You were exceedingly angry at him. The last thing on your mind was obtaining medical assistance for Hough. That would have been totally contrary to every feature of the way you treated Hough that day and night in Collingwood, where you showed a complete lack of concern for his welfare. Furthermore, to take him to hospital would have been to risk exposing your violent criminal conduct towards him. I am satisfied that this was never your intention. Secondly, if no location had been suggested by Shanks while you were both still at Collingwood, there would have been no reason for Shanks to have driven off from Dight Street in convoy with you, which he clearly did. Thirdly, your version now is completely different from the account you gave to the police as to how you ended up at Lerderderg. In the interview, you denied having been directed to that location by anyone else and said that you had found the location with the use of a Melway map.[21]
[21]Q 197.
Taking into account all of the evidence, I am satisfied beyond reasonable doubt that, before your departure from Collingwood, and, therefore, before your murder of Cayleb Hough, you asked for and were provided by Shanks with a location at which to dispose of the body of Hough.
Reckless murder or ‘normal’ murder
When you eventually pleaded guilty to murder in this case, you did so on the basis that you accepted guilt of reckless murder, but disputed that you had an intention to cause death or really serious injury at the time of your crime. The prosecution contends that you should be sentenced on the basis of having had an intention to cause death or really serious injury at the time of your acts that caused the death of Cayleb Hough.
Essentially, the submissions of Mr Johns on the issue of the form of murder of which you are guilty were that the killing occurred as the culmination of what he described as a completely bizarre and inexplicable chain of events, that you lost your temper in the car before the final attack, and that your mind might have been so clouded by the effects of distress, drugs and irrational thinking that your state of mind fell just short of the normal intention required for murder.[22]
[22]Transcript of Plea Hearing (Supreme Court of Victoria, Tinney J, 2 August 2018) 74.
In the outline filed in respect of the disputed facts, Mr Johns acknowledged that the proposition that the Crown is unable to prove at least an intention to cause really serious injury would be more difficult to sustain if the Shanks evidence was accepted, but that it would still be viable. I do not agree. The findings that I have made on the disputed facts, along with the other surrounding circumstances, make it entirely clear that you must have had at least an intention to cause really serious injury at the time of the final attack. Indeed, I would go further than that.
In my view, my acceptance of the evidence of Fred Shanks generally, and in respect of the contested areas in particular, leads inexorably to the conclusion that, at the time of your departure from Dight Street with Cayleb Hough in the back seat of your vehicle, you harboured the intention to murder him and to dispose of his body at the location which had already been revealed to you at that time by Shanks. I am satisfied beyond reasonable doubt that you had formed the intention to kill. I can see no other reasonable way in which to view your proven conduct and statements. It is one thing for it to be asserted that Shanks may not have believed that murder was what was going to occur; that he may have considered what you said and did as being no more than a ruse to further frighten Hough or, at least, something that you did not actually intend to follow through with. It is quite another to consider that you yourself did not have the intention that your words and actions so clearly indicated.
In reaching this conclusion as to your state of mind at the time of your departure from Dight Street, I carefully considered the submissions made this morning by Mr Johns, in which he asserted that I should not be satisfied beyond reasonable doubt on this matter. Forceful though these submissions were, I do not accept them.
Within a relatively short time of your departure from Dight Street, you acted on that intention that I am satisfied you had already formed to kill Hough. On your own admission, you stopped the car at some point, must have put on the knuckledusters that were in your possession, and inflicted multiple blows to the head of Hough while he was still bound and, in effect, helpless in the rear of your vehicle. The number of blows is unclear, but at least two of the blows were of sufficient force to cause separate facial fractures.
At the plea hearing, Mr Rochford did not urge me to reach the view that you necessarily had an intention to kill at the time of your acts that caused the death of Hough. He put it in terms of there being evidence of at least an intention to cause really serious injury. On the further plea this morning, Ms Harper for the Crown submitted that I should be satisfied beyond reasonable doubt of an intention to kill at the time of the actual murder. Such a finding would be contrary to the submissions made by Mr Johns both this morning and on the day of the original plea hearing. I have listened carefully to the submissions made on your behalf in this regard. I do not accept them. In my view, the evidence is abundantly clear that, at the time of your final brutal attack upon Cayleb Hough, you intended to bring about his death. Your earlier formed intention continued unchanged, and now you acted on it. I am satisfied beyond reasonable doubt of that fact.
I should make it clear that even had I not decided the three contested facts adversely to you, I would still have been perfectly satisfied that your murder was one in which you had an intention to cause death or at least really serious injury, as opposed to foresight of the probability of death or really serious injury taking place. As the prosecutor put it on the plea, on your account in the interview, with no reference to the contested evidence of Shanks, I could be satisfied at least of an intention to inflict really serious injury. You had, after all, repeatedly hit Hough to the head while wearing a pair of knuckledusters until he was dead. I agree with that analysis, and I make the additional point that the final fatal attack did not occur in isolation. It occurred following a protracted and violent assault by you upon your victim over a course of many hours, in which your extreme anger towards him was manifest. Even without my findings as to the disputed evidence of Shanks, I would have been satisfied beyond reasonable doubt of an intention to inflict at least really serious injury.
Your personal background
Your personal background was set out in the plea outline filed on your behalf which became Exhibit 1 on the plea, and was further detailed by Mr Johns on the plea. In short, you were born on 1 July 1989 and are now 29 years old. Your parents separated when you were 11. You left school in year 8, by which time you were already using cannabis regularly and abusing alcohol. Behavioural issues had surfaced by the time you left school, especially relating to anger management. After leaving school, you did odd jobs. You had a room in your father’s house, but spent a good deal of time staying with friends and associates. You started getting in trouble with the police from about the age of 14. You had worked as a labourer and held other jobs, but had been unemployed for two years leading up to this crime. No doubt this was related to your burgeoning drug use, which became worse from your late teenage years. You commenced the use of amphetamine and ice at the age of 20 and were a regular user of ice at the time of your offence. No doubt for you, as for so many offenders who come before this and other courts, your drug use has blighted your life.
At the time of this murder, you were in a relationship with a female named Emma. Your son was born a matter of weeks before your arrest. No doubt, the fact that for many years you will be removed from the regular contact with your son that you might otherwise have hoped to maintain would be a cause of great sadness to you.
Plea of guilty
The law requires me to have regard to your plea of guilty and the stage at which it was entered or indicated. In this case, your plea of guilty was entered at a late stage, following a contested committal. Your legal representatives indicated on your behalf to the Crown on 3 May 2018 that you would plead guilty on this contested-facts basis, and you were arraigned and pleaded guilty on 2 June 2018. This means that your indication of an intention to plead guilty did not occur until almost two-and-a-half years after you murdered Cayleb Hough and over two years after the discovery of his body. I am aware of the fact that, from the time of your second interview, you were acknowledging you had killed Hough, that your lawyers did explore the possibility of a plea of guilty to manslaughter, and that the possibility of a mental impairment defence was also explored on your behalf. The fact remains, however, that your plea of guilty to murder did come very late in the piece, during which time continuing anguish has no doubt been caused to the many family and friends of Cayleb Hough.
Nonetheless, your plea of guilty is still a very significant matter which I take into account in your favour. It has all the utilitarian benefit considered to flow from a plea of guilty, having saved the need for a trial and avoided some of the continuing torment that such an event would have caused to the many victims of your crime. In addition, it provides at least some evidence of remorse.
Remorse
Your counsel has submitted on your behalf that you are genuinely remorseful for your crime. He referred in particular, to question 228 of your second interview with the police, and paragraph 6 of the report of Dr Pandurangi. I do not consider your actual expressions of remorse as contained in the interview and the psychiatric report to be as clear as would sometimes be the case. Nor has your conduct from the time of the murder indicated strongly your remorse. But the reality is that you killed a young person who was a friend of yours. I accept that you do feel sadness, regret and remorse at what you have done, and I take that into account accordingly.
Psychiatric reports
Two psychiatric reports were tendered on your behalf on the plea. These were from Dr Adam Deacon[23] and Dr Prashant Pandurangi.[24] It could be observed that these reports were not of any great assistance to you. Mr Johns conceded that none of the limbs in Verdins[25] would have any application in sentencing you. Nor did either report point to the existence of any psychiatric illness or personality disorder. Both experts offered opinions about what may have been operating on your mind at the time of the murder.
[23]Exhibit 3.
[24]Exhibit 4.
[25]R v Verdins (2007) 16 VR 269.
Dr Deacon described the belief that you had about Hough having harmed your father as a delusional belief that drove your anger and aggression towards Hough. He even went as far as to say:
Mr Kelson’s false belief appears to have been formed in direct response to Cayleb Hough informing him that he had raped and shot his father. It is unclear if Caleb [sic] Hough delusionally believed that he had raped and shot Mr Kelson’s father, or whether he deliberately bated [sic] Mr Kelson for unknown reasons … Mr Kelson’s adopted delusional belief that Cayleb Hough had raped and shot his father dead could be considered to represent a form of folie a deux (a shared delusional belief following the transmission from one person to the other).
I reject these opinions. They conflict with the opinions of the other expert, Dr Pandurangi, whose view was that the description that you gave of how you reached a conclusion about the death of your father did not have the characteristics of a delusion. As he said, you simply accepted at face value what you were told by Hough. Furthermore, the suggestion of a shared delusional belief is unconvincing. There is no reason at all to consider that Hough had any belief that he had raped or killed your father. His reason for saying what he said to you is no doubt to be found in your suspicions of him, your violent treatment of him before the admissions were made, and the grossly drug-affected state in which he found himself at the time of the disclosures.
One respect in which both psychiatrists agreed was their belief that your strange state at the time of the formation of the beliefs about your father and the carrying out of the murder was a result of the effect of your drug use. As Dr Deacon said, you ‘most likely experienced the acute and chronic effects of sustained cannabis and crystal methamphetamine dependency, combine with the intoxicating effect of alcohol.’ As Dr Pandurangi said, ‘At the time of the alleged offence, in my opinion Mr Kelson was in a paranoid state which was consistent with intoxication with drugs … The paranoid state he was in at the time would have significantly impacted his ability to process the information provided to him or make appropriate judgements.’
Your drug use and the substantial effect that it had on you provides no excuse for your offending, and in no way reduces your substantial moral culpability for this serious crime. The most it does is provide at least some explanation for why you behaved in this outrageous fashion, and make it clear that your commission of this murder was not a well-thought-out, rational and carefully planned crime.
Victim impact statements
Three of the matters that I must take into account under the Sentencing Act 1991[26] are the impact of the offence on any victim of the offence, the personal circumstances of any victim of the offence, and any injury, loss or damage resulting directly from the offence. To that end, I have had careful regard to the ten victim impacts statements filed and tendered on the plea.
[26]Section 5(2)(daa)–(db).
These documents, some of which were read aloud in this Court by the authors or by the prosecutor, others of which were not, represent a powerful body of evidence illustrating graphically the tragic and far-reaching consequences of your crime upon the parents and other loved ones of Cayleb Hough. They bear eloquent testimony to the distress, anguish, devastation, fear and feelings of loss and emptiness brought about by your senseless murder of a much-loved son, relative, or friend. I have taken the contents of all of the victim impact statements into account in arriving at the sentence that I will shortly pass upon you.
Prior convictions
You admitted the matters contained in your criminal record. You have a number of convictions arising from multiple court appearance over the years, including one conviction for assault with a weapon for which you received a fine in 2009, a conviction for possessing a controlled weapon also in 2009, a conviction for carrying a prohibited weapon in 2012, and various drink driving and other matters. In the scheme of things, beyond illustrating that you were by no means of blameless character at the time of this murder, these convictions are not of much significance and did not serve as a warning of the serious crime that you have now committed.
Current sentencing practices
I have taken into account current sentencing practices for the crime of murder. This is one of the matters to which I am required to have regard by s 5(2) of the Sentencing Act 1991. In doing so, I have considered, amongst other things, the applicable Sentencing Snapshot from the Sentencing Advisory Council and the helpful material contained within the Judicial College of Victoria’s Victorian Sentencing Manual, including the murder case collection. I note that no sentence passed in any other case amounts to a precedent for the sentence that I must pass on you.
Gravity of the offence and your culpability and degree of responsibility
Section 5(2)(c) and (d) require me to have regard to the nature and gravity of the offence and your culpability and degree of responsibility. I consider yours to be a serious instance of the crime of murder with a high level of moral culpability on your part. You murdered a 17-year-old boy over whom you were able to exercise control throughout the last hours of his life. At the heart of your decision to carry out this crime was an irrational belief you had formed substantially as a result of the severely drug-affected state to which you had reduced yourself by your use of illicit drugs. While it was by no means a well-thought-out or carefully planned crime, the continuing assaults that preceded the actual murder extended over hours, during which time you, even in that drug-addled condition, had ample opportunity to desist from your violent and criminal actions — something that you were repeatedly encouraged to do by others. The steps that you took at Dight Street to seriously assault Cayleb Hough, to threaten his life, to enquire as to a place to dispose of his body, and to bind him with duct tape, were all steps that should have had you reflecting on the seriousness of what you were doing, and, as earlier indicated, would no doubt have caused considerable fear to him. Further opportunity for reflection was provided by the drive in the direction of Lerderderg. For some of that drive, it seems, Cayleb Hough was still alive. Your eventual assault of him leading to his death was a long way from being a spur of the moment thing. You acted on the murderous intent that you had earlier formed in Collingwood and, to this extent, the crime was a planned one. Hough was still bound at the arms and face at the time of your attack, rendering him helpless. You must have taken the step of putting on the knuckledusters after stopping the car and before the assault commenced. Your repeated infliction of blows to the head of this young man with the use of the knuckledusters was a brutal and completely unnecessary crime, in no way justified by your irrational belief that he had done something to your father. The number of blows administered by you is unknown, but one thing is clear: acting pursuant to your unbridled and irrational anger, and intending to cause his death, you continued to hit him until you had achieved precisely that outcome. Your subsequent disposal of the body was a callous action which is a substantial aggravating feature of your offending.
All in all, as I have said, your crime of murder was a serious one.
Forfeiture order
I earlier made a forfeiture order in respect of your motor car in which the murder was carried out and in which the body of Cayleb Hough was transported to Lerderderg. You consented to this order, and I note that, although your father was the registered owner of the vehicle, I have been informed by the prosecution and the defence and accept that he does not seek to assert any right to possession of the vehicle. I take into account under s 5(2A) of the Sentencing Act 1991 the making of that forfeiture order.
Important sentencing considerations
Mr Rochford for the Crown submitted that just punishment, denunciation and deterrence, both specific and general, are of high importance in your case. I agree. Where denunciation is concerned, the sentence of this Court must make it perfectly clear that the Court deplores the sort of mindless violence that you inflicted upon your 17-year-old victim. His death is an absolute tragedy and, as the prosecutor rightly asserted, this was a totally unnecessary killing. As for general deterrence, the sentence of this Court should bring it clearly home to any person in our community who might be minded to inflict such shocking violence upon any person, in particular, a young person such as Cayleb Hough, that such conduct will be met with strong punishment.
I add to the list of sentencing considerations I take into account, rehabilitation. You are still quite a young man, and, if you can avoid any return to the use of illicit drugs in future, your prospects of rehabilitation may be reasonable, but it is very difficult to form a concluded view on this. The sentence that I will be required to pass upon you, substantial though it will be, will leave for you the hope and prospect of some useful life after its completion. It is to be hoped that you can make use of that opportunity which may be presented to you some years from now.
Sentence
For the murder of Cayleb Hough, you are sentenced to 24 years’ imprisonment. I fix a period of 19 years during which you will not be eligible to be released on parole.
I declare that you have served 711 days by way of pre-sentence detention, up to and including 9 August 2018.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have imposed a sentence of 27 years’ imprisonment with a non-parole period of 22 years.