R v Kelson - [2018] VSC 442

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…

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 Kelson

Details

AGLC: R v Kelson [2018] VSC 442
Case: [2018] VSC 442
Decision Date: 10 August 2018

CaseChat Overview and Summary

The case before the court was an appeal against sentence in a matter of murder. The appellant, Kelson, had pleaded guilty to the murder of a man who was struck on the head with knuckledusters and whose body was disposed of in a disused mineshaft. The co-offender in the case gave evidence in the contested plea and provided various factual details that were in dispute. The central legal issue before the court was whether the appellant had the intention to cause death or really serious injury at the time of the offence. The court had to consider the seriousness of the crime, the appellant's level of participation, and the circumstances surrounding the offence in order to determine an appropriate sentence.

The court found that the murder was a serious instance, with the appellant striking the deceased on the head with knuckledusters and disposing of the body in a disused mineshaft. The court considered the appellant's level of participation and the intention behind the act, as well as the factual matters that were in dispute. In particular, the court focused on whether the appellant had the intention to cause death or really serious injury at the time of the offence. Ultimately, the court found that the appellant had the necessary intention and sentenced him to 24 years’ imprisonment, with a non-parole period of 19 years.

The court's reasoning was based on the seriousness of the crime and the appellant's level of participation. The court found that the appellant's actions demonstrated a high level of premeditation and planning, and that the disposal of the body in a disused mineshaft showed a clear intention to conceal the crime. The court also considered the factual matters in dispute, including the co-offender's evidence, in order to determine the appropriate sentence. The court found that the sentence of 24 years’ imprisonment, with a non-parole period of 19 years, was appropriate given the seriousness of the crime and the appellant's level of participation.

The final orders of the court were that the appellant's sentence of 24 years’ imprisonment, with a non-parole period of 19 years, was upheld. The court found that the sentence was appropriate given the seriousness of the crime and the appellant's level of participation. The court also noted that the sentence reflected the need to deter the appellant and others from committing similar crimes in the future. The appeal against sentence was therefore dismissed.

Orders