R v Kidd
[2024] VSC 458
•1 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0274
| Between: | |
| THE KING | |
| -and- | |
| HAYDEN LEIGH KIDD | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 June 2024 |
DATE OF SENTENCE: | 1 August 2024 |
CASE MAY BE CITED AS: | R v Kidd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 458 |
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CRIMINAL LAW — Sentence — Manslaughter — By unlawful and dangerous act — Accused (aged 20) killed his grandmother by striking her several times to head and torso with mattock, leaving mattock embedded in back of her head — Accused’s cousin (aged seven) witnessed killing — Accused suffering from temporary cannabis‑induced psychosis at time — In deluded state, accused believed his grandmother to be his sadistic stepfather posing threat to his younger self (in truth, his cousin) — Accused initially indicted on murder — During trial, expert evidence from two psychiatrists cast doubt on murderous intent — Accused had no reason to suspect cannabis would induce psychotic violence — By consent, jury discharged without verdict and accused pleaded guilty to manslaughter — Because of temporary psychosis, very little moral culpability — Plea of guilty to manslaughter offered well before trial — Remorse — No prior convictions — Good prospects of rehabilitation — Sentencing purposes of general and specific deterrence, denunciation, and community protection of less weight than usual — Current sentencing practices — Singular case calling for merciful sentence — Prison sentence combined with community correction order inappropriate — Instead, sentence of five years’ imprisonment with non‑parole period of two‑and‑a‑half years — But for plea of guilty, sentence of seven years’ imprisonment with non‑parole period of four‑and‑a‑half years — Sentencing Act 1991 (Vic), ss 5, 6AAA, 18 & 44.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E Ramsay (trial) Mr D Glynn (plea) | Abbey Hogan, Solicitor for Public Prosecutions |
| For Mr Kidd | Mr T Marsh (trial & plea) | Emma Turnbull Lawyers |
HIS HONOUR:
Overview
This case is horrible — so horrible that those of fragile disposition might prefer not to read (or listen) any further. And yet it is also a matter about the muted moral culpability that must be brought into account in the sentencing calculus for an otherwise objectively grave crime committed by a person in the grips of a florid psychosis. Further, in so far as that psychosis came on suddenly, and out of the blue, as a result of the consumption of cannabis, it constitutes a warning not to be ignored.[1]
[1]Apologies to Australian electronic group Severed Heads, as aspects of this paragraph borrow from the opening lyrics to their song Dead Eyes Opened. The lyrics are samples from the voice of the inimitable Edgar Lustgarten narrating the episode Death on the Crumbles from the 1971 BBC radio series Accused in the Box. This episode recounted the trial — presided over by Mr Justice Avory at the Sussex Assizes in 1924 — of Patrick Mahon for the murder of Emily Kaye. Mr Mahon was found guilty, and hanged.
On the evening of Saturday 28 May 2022, after smoking some cannabis, as he had done many times before, twenty‑year‑old Hayden Kidd drifted off to sleep in his room at his grandparents’ home in Darley. A little later, he awoke in a cannabis‑induced psychosis of which he had no previous warning or experience. In an utterly deluded state, he perceived his maternal grandmother Shirley Kidd to be his sadistic stepfather sleeping with his much younger self, who, in truth, was his seven‑year‑old cousin AB. Acting on this confused misidentification, Mr Kidd wrested ‘himself’ from the clutches of his ‘stepfather’, and carried him to the garage. His grandmother awoke and chased after them, no doubt alarmed at his actions and out of concern for AB.
With his mind still in this jumbled psychotic whirl, Mr Kidd, feeling threatened in the garage, released his grip on AB, picked up a garden mattock, and struck his ‘stepfather’ hard with it at least four times to the head and torso, killing ‘him’. Mercifully, it is likely that the actual victim, Mrs Kidd, died almost instantly. That said, in an image that is hard to unsee, the mattock was left embedded in the back of her head.
AB fled the garage looking for help from his grandfather Robin Kidd, who was asleep in a separate bedroom. On his way to the garage, Robin crossed paths with Hayden,[2] who said to him, incongruously, “I’m going to sleep well tonight.” To him, his older grandson also looked pale and could not keep his eyelids open. A little later, Hayden walked up to a family friend, Greg James, and stroked him under the chin in a bizarre fashion, which made Mr James think that he was “on something”. Later still, Hayden was found lying in his grandmother’s bed, which was strange enough. But, further, to his uncle Matthew Kidd’s eye, at that time, Hayden looked “like a dead person, no life in him, no care, just a blank”.
[2]On occasions, only to make reading a little easier, I shall refer to relevant persons by their given names, rather than as Mr, Mrs or Ms Kidd, as several have that same surname.
Unsurprisingly, the same evening, Hayden was arrested by police at the house in Darely, and was later charged with murder. He has remained in custody ever since.
Nearly two years later, during his murder trial in Ballarat in April this year, two eminent forensic psychiatrists commissioned by the Crown and the defence respectively, and who had each separately examined Mr Kidd, gave evidence casting serious doubt on whether, in the context of the psychosis he suffered, he possessed murderous intent at the time of the killing. In those circumstances, and after due consideration, the parties agreed that the jury should be discharged without verdict, which I ordered, and that Mr Kidd would plead guilty to manslaughter, which he did.
At a subsequent plea hearing on 18 June, I heard victim impact statements, a plea in mitigation, and submissions from counsel for each party. Now, I must pass sentence.
This is no easy task, for this is an unusual case — not just as far as parricides go, but for any form of homicide. On the one hand, the killing itself was gruesome and objectively grave. After all, an innocent person was brutally hacked to death in her own home. Naturally, the crime has had a profound impact on Mrs Kidd’s loved ones, who, of course, are also Hayden Kidd’s family. But for the lack of murderous intent stemming from his florid psychosis and his horrible experiences with his stepfather, it would have been a clear case of murder, and a grave one at that.
On the other hand, precisely because of his temporary psychosis and his deluded misidentification of others, Mr Kidd’s moral culpability for this particular offence of manslaughter is very low, if not non‑existent. While he had experienced blackouts after using cannabis in the past, he had no idea that the drug could render him psychotic and violent towards another. Further, he was and is young, has no prior convictions, has pleaded guilty despite an arguable defence, is wracked with remorse, will forever suffer the odium of some for killing a beloved family member, and has good prospects of rehabilitation.
This, then, is a singular case. Notwithstanding Mr Kidd’s temporary but profound loss of touch with reality, I think the offence still demands imprisonment. However, the same factor, and its impact on moral culpability, necessarily means the sentence must be quite a deal less severe than the prison terms commonly imposed for manslaughter these days.
Balancing all matters as best I can, I have determined that, for the manslaughter of his grandmother, Hayden Kidd is to be sentenced to five years’ imprisonment with a non‑parole period of two‑and‑a‑half years.
My more detailed reasons for that sentence follow.
Background
Shirley Kidd
I turn first to the background to this matter, commencing with Mrs Kidd. Shirley Kidd was 67 years old at the time of her death. She lived at 5 Egan Court in Darley with Robin Kidd, her husband of 43 years. Together, they had three children — Rebecca, Matthew and Amelia — and ten grandchildren.
Hayden Kidd
Hayden Kidd was born in March 2002. He was aged 20 at the time of the offence, and is now 22. He is the son of Rebecca Kidd and Daniel Shannon. At the time of the offending, he was living with his maternal grandparents in their home in Darley.
When Hayden was about two years old, his mother formed a relationship with CD,[3] who became his stepfather. Hayden lived with his mother, CD and his two (younger) half‑siblings until 2015, when he was 13.
[3]While I accept the evidence about the horrible emotional and physical abuse suffered by Hayden Kidd at the hands of his stepfather, and while this evidence was given in open court and there is no prohibition on publication of his name, I have chosen to describe him in these reasons merely as CD. This is because he has two children of his own who, upon publication of his name, may become innocent victims of that publicity.
As his mother explained in her evidence at trial, on an almost daily basis throughout that period, Hayden suffered grave physical and emotional abuse at the hands of CD. From an early age, CD would smack and humiliate Hayden when he wet himself in public. He would use a cigarette lighter to burn the soles of his feet or the inside of his legs as punishment for failing to pack away his toys. When Hayden was about seven or eight, CD threatened to cut off his penis with a pair of scissors because, he said, he did not want him to “repopulate”. His mother remembers an occasion when she had to pull CD away from Hayden when he was trying to drown him in the toilet. In 2015, CD forcibly picked up Hayden by the throat and held him up against a wall two feet off the ground.
There were times when Hayden refused to attend school, or to participate in activities when there, for fear that others would see the bruises and marks left on him from CD’s assaults. These injuries included black eyes, bruising over his whole face, and marks on his feet left from CD whipping them with a leather belt.
Whenever any of the children did anything wrong, CD would blame Hayden for it. He would say horrible things to him, including that he was “a low life” and “dirt”, and that he “isn’t worth breathing” or “isn’t worth the time of day”. He made numerous threats to kill Hayden and his mother in front of the other children.
In 2015, matters came to a head, causing Robin and Shirley Kidd to “rescue” their daughter Rebecca and her three children from CD, and to take them back to their home in Rockbank.
Subsequently, Hayden’s mother re‑partnered with another man, who unfortunately suffered from a heroin addiction. His mother was neglectful. At times, the responsibility of caring for his half‑siblings fell to Hayden.
Hayden lived with his grandparents for short periods from 2015 onwards. Against this backdrop of abuse, neglect, dysfunction and pervasive instability, he saw time spent with his grandparents as a form of sanctuary. They were loving and caring, and his stepfather would not abuse him when in their company. His relationship with his grandfather was closer and more supportive than with his grandmother, but the living situation was generally harmonious.
In his late teens, Hayden learned — to his considerable shock — that his stepfather was not his biological father. He had a limited opportunity to form a relationship with his actual father before he succumbed to throat cancer in 2022, not long before this offending.
Having lived elsewhere for a time, in late‑2021 or early‑2022, Hayden moved back in with his grandparents at their home in Darley. Both encouraged him to get a job while he was living with them. According to his grandfather, Hayden did not like his grandmother making demands of him regarding employment. Two days before her death, Mrs Kidd told her husband that she had told Hayden he needed to get a job, otherwise he would have to leave. (I should add that this is not suggested to be a motive for Hayden to harm his grandmother.)
The offence
I turn now to the offence, commencing with the lead‑up events on the day of its commission.
Not all of Hayden’s precise whereabouts on that day are known, but CCTV at the house and in an Uber captured his movements at the following times. At about 5:44 p.m., he left the house in Darley. At 6:05 p.m., he caught an Uber to the local IGA supermarket. He told the Uber driver he was going to meet a friend. The driver, who had driven him on previous occasions, thought he appeared subdued. She dropped him off in the carpark behind the IGA. At 7:48 p.m., he returned to his grandparents’ home. At 9:03 p.m., he was outside on the rear veranda smoking, walking towards the front of the house, and then returning to the rear veranda a few minutes later.
Robin Kidd went to bed early, at around 7:30 p.m. At that time, his wife and AB were still awake, and Hayden was in his room.
Turning to the attack itself, at about 10:15 p.m., the kitchen light came on. At this time, Mrs Kidd was asleep in her bed, with AB sleeping next to her.
In his VAREs, which were in evidence at trial, AB said that, when he was asleep, Hayden came into his grandmother’s room. He said that he was, “like, choking me, then he took me into the garage, and he got [an] axe and started stabbing my grandma”. He said that his grandmother woke up, “and she was running out and Hayden was running, and he’s … not okay but I am”. AB said that “there was blood” and that he “could see her brain”.
In cross‑examination, AB agreed with the following sequence of events. Hayden came into his grandmother’s room. He lifted AB out of bed and held him around the waist. Hayden ran with AB to the garage. His grandmother ran after him saying, “Put [AB] down.” Hayden went inside the garage. He pressed the button to open the garage (roller) door. The door opened. His grandmother came into the garage. AB wriggled out of Hayden’s arms. His grandmother and Hayden did not talk to each other in the garage.
Robin Kidd remembers being awoken by the sound of a scuffle. AB knocked on his bedroom door and said, “Mama is lying on the ground in the garage,” and “Hayden did it.” When he asked what Hayden had done, AB replied, “Hurt Mama.”
Robin noticed that AB had red marks around his neck. When asked who did that to him, AB said, “Hayden did it.”
AB led Robin to the garage where he saw Shirley lying face down on the ground in a pool of blood. She had what he described as a “pickaxe” (i.e. the mattock) “jammed in” the back of her head. It was clear to him that she was dead. He said he reflexively removed the mattock from his wife’s head.
I should add that Mr Marsh, who appeared for Hayden Kidd at trial and on the plea, accepted that his client struck Mrs Kidd with the mattock, thereby killing her, and left the mattock embedded in her head. However, he disputed AB’s evidence that Hayden choked him at any point. I shall return to this issue a little later.
Subsequent events
I turn now to some of the events after the killing.
As I indicated earlier, when heading to the garage, Robin crossed paths with Hayden, who said to him, “I’m going to sleep well tonight.” Robin noticed that he was pale and could not keep his eyelids open.
When Robin went to his wife’s bedroom to get a dressing gown to put over her body, he saw Hayden lying down on her bed.
Robin rang his son Matthew Kidd and spoke with his daughter‑in‑law “RJ” Kidd, telling her what had happened.
Robin’s friend Greg James arrived a couple of minutes later, having received the news from RJ. He rang triple‑zero at 10:27 p.m. Seeing Shirley in a state in the garage caused him to vomit while on the phone to emergency services.
It was around that time that Hayden walked up to Mr James, stroked him under the chin, and then went back inside without saying a word. This bizarre action caused him to think Hayden was “on something”.
Matthew Kidd arrived at the house and ran into his mother’s bedroom. He saw Hayden in her bed. To him, he looked “like a dead person, no life in him, no care, just a blank”.
Arrest
Police arrived at 10:36 p.m. and arrested Hayden in the kitchen. He was compliant with the arrest. When asked if he had taken any drugs, he said he had injected himself three times and had given himself three doses.
He was assessed by paramedics at the scene. They noted that he was confused and fluctuating between “eyes spontaneous” and “eyes to voice”. He asked them, “What happened?” He told them he could feel his heart racing, and that he had had alcohol and marijuana earlier in the day. He denied any other drug use. To the paramedics, he appeared to be “very drug affected”. He was transported to Sunshine Hospital for assessment.
Mr Kidd was discharged from the hospital and into police custody at 9:27 a.m. the next day, which was the Sunday. At 12:54 p.m., he was assessed by a forensic medical officer, who determined that he was not fit to be interviewed and recommended he receive adequate rest and nutrition. The following day, another forensic medical officer found him fit for interview.
While in police custody on the Sunday, Mr Kidd telephoned his ex‑girlfriend Chloe Abela‑Rogers. He apologised to her, and asked her to tell his sister that he loves her. When she asked him what had happened, he said he didn’t know, and that it was a blackout. During a phone call the following day, she asked him again what he remembered. He said he hadn’t slept the night before and had had some “weed” before he went to bed at about 5:00 p.m. He said he must have had a blackout and “done what he done”.
Mr Kidd had previously told Chloe that he randomly had blackouts. He told her about a specific blackout at his uncle’s house when he woke up and started punching at rubbish bins. This incident was recorded on CCTV.
Analysis of Mr Kidd’s blood taken at the hospital detected no drugs, alcohol or poisons in his system at reportable levels. There was, however, a trace amount of cannabis, and also of mirtazapine (which was an anti‑depressant drug for which he had a prescription).
Blood pattern analysis
Forensic officer Fabio Guarino conducted bloodstain pattern analysis of the garage. In his opinion, the bloodstain patterns are best explained by the following events.
Mrs Kidd was low to the ground with her head positioned in proximity to a lawn‑mower and a shelving unit along the east wall of the garage when she received one or more forceful blows to the head causing bleeding injuries. She remained at this location for a period of time while blood was flowing freely. She had already received at least one blow to the head to cause the blood to flow prior to receiving the blow or blows in this location.
Mrs Kidd then moved (or was moved) a short distance in the garage, to where her body was found. At this location, she received at least two further forceful blows to the head while positioned low to the ground, resulting in the distribution of blood, as well as skull and brain matter.
In Mr Guarino’s view, the mattock (which was found nearby) was an object likely to have been used to inflict injury to her. A bloodstained object, possibly the mattock, had also struck the shelving unit in the northeast corner of the garage.
In Mr Guarino’s opinion, the minimum number of blows to the head with the mattock was four: one to cause the initial blood to flow; at least one while positioned near the lawn‑mower; and at least two while positioned in her final resting place.
Blood pattern analysis of Mr Kidd’s tracksuit pants was conducted by forensic officer Mark Gellatly. In his opinion, the blood staining on those pants was best explained by the hypothesis that Mr Kidd struck his grandmother at least once while positioned down low. While considered less likely, Mr Gellatly could not exclude the possibility that these stains were a result of Mr Kidd’s proximity to a dripping and/or coughing or sneezing event or events involving his grandmother’s blood.
The mattock
There is no dispute that the weapon used in the attack was the garden mattock owned by Mrs Kidd. Hayden had used the mattock about a week prior to the attack to pull out weeds in the back yard after his grandmother had asked him to help Mr James with the weeding.
According to Robin Kidd, the mattock was usually kept in the garage leaning on the wall between the two garage doors with the rake and other tools.
Testing showed that DNA matching Hayden Kidd’s profile was on the handle of the mattock.
Autopsy
On 30 May 2022, forensic pathologist Dr Gregory Young conducted an autopsy on Mrs Kidd’s body. He concluded that the cause of death was head injuries.
He noted several injuries to Mrs Kidd’s head, including on the back, the left, the frontal lobe area, the forehead, the nose, the left cheek, and the left ear. There was also a comminuted fracture to the back and left side of the skull involving the occipital bone, the left parietal bone and left temporal bone, and extending into the frontal lobe, the base of the skull and the clivus. In addition, there was thin film subdural haemorrhage, patchy subarachnoid and intraventricular haemorrhage, and fragmentation of the underlying brain.
There were also fractures of the anterior and posterior arches of the C1 cervical vertebra and the odontoid peg of the C2 cervical vertebra.
In addition, Dr Young noted patterned blunt force injuries to Mrs Kidd’s back associated with subcutaneous haemorrhage; a liver laceration; a parenchymal haemorrhage in the lower lobe of the right lung; and posterior fractures of the right ninth and tenth ribs.
Dr Young saw photographs of the mattock. In his opinion, the minimum number of applications of force with the mattock required to produce these injuries was three.
Hayden Kidd’s mental state at the time of the attack
Forensic psychiatrists Dr Adam Deacon and Dr Danny Sullivan both assessed Hayden Kidd, prepared reports for the Court, and gave evidence at trial.
During the assessments for the reports, Mr Kidd told both psychiatrists that he thought his grandmother was his stepfather when she chased him into the garage. He said he also thought AB was himself as a young boy, and he was trying to deter his stepfather from approaching him. He told both experts that he did not recall the actual assault.
Both psychiatrists agreed on at least the following. First, Mr Kidd was suffering from a cannabis‑induced psychosis when he attacked his grandmother. Second, the psychosis occurred within hours of smoking cannabis, and appeared to have resolved completely within the next day or two. Third, the psychosis caused him to experience an altered sense of reality and a state of confusion in which he mistakenly thought his grandmother was his abusive stepfather and that AB was his younger self.
Dr Deacon was called at trial by Mr Marsh, albeit before the Crown case was closed.[4] In evidence‑in‑chief, Dr Deacon opined that Hayden’s capacity to form the intent to kill or cause really serious injury at the relevant time was “significantly compromised”.[5]
[4]This was done by agreement pursuant to s 232A of the Criminal Procedure Act 2009 (Vic).
[5]Trial transcript (17 April 2024), pp 401–402.
Dr Sullivan was called next at trial by Ms Ramsay, who appeared for the Director of Public Prosecutions. When asked in evidence‑in‑chief about the capacity of Mr Kidd to form the intent to kill or cause really serious injury, Dr Sullivan said this:[6]
I thought that he had at least the capacity to form the intent to strike a person, whether because he thought that they were threatening him or attacking him or he’d misunderstood the situation, I still thought that he had the capacity to reflect that he’d picked up an object which could be used to strike another person, and he’d struck them, with the intent to incapacitate them or stop them at some level.
[6]Trial transcript (17 April 2024), pp 471–472.
Matter settles as plea of guilty to manslaughter
As I indicated earlier, following the evidence of the psychiatrists at trial, and a period of consideration by the parties, the jury was discharged without verdict, an indictment charging manslaughter was filed, and Mr Kidd pleaded guilty to that charge upon arraignment.
Alleged choking of AB not accepted
I turn now to AB’s evidence that Hayden Kidd choked him when he took him from the bed. This evidence was supported, in part, by Robin Kidd’s evidence that he saw red marks on AB’s neck, and by the response he received from AB about the marks.
However, having seen and heard this evidence at trial, I do not accept that Hayden Kidd deliberately choked AB. As Mr Marsh submitted, when AB was cross‑examined about this issue, he struggled to place the alleged choking in a chronology that made any sense with respect to the rest of the events. This alleged behaviour is also inconsistent with the delusion Mr Kidd was suffering at that time, which concerned the need to protect AB, not harm him.
Given that Mr Kidd wrested AB from his grandmother’s bed and carried him to the garage, a far more likely explanation for how he ended up with red marks around his neck is that he was inadvertently harmed at some point in the course of that episode when he was wriggling to get free. While it may have been perceived by AB as choking by Hayden, it was no such thing. Also, it must be remembered that AB was a boy of only seven who witnessed a profoundly disturbing incident, which may well explain an element of distortion of his perception of surrounding events.
Victim Impact Statements
Next, I turn to the victim impact statements. They were made by Mrs Kidd’s son Matthew Kidd; her brother Dennis Brooks; her granddaughter XY; her daughter‑in‑law RJ Kidd; and her daughter Rebecca Kidd.
Matthew Kidd said he found it difficult to put the impact of his mother’s loss into words, as she was the one who encouraged him to speak about his feelings in a way no one else does. He feels he has been robbed of the opportunity to show his mother that he is the man she raised him to be. He also said the incident has meant he had lost his two sisters as well, and that his children have lost their aunties.
Mr Brooks spoke about the life of his sister, who was 18 years younger than him. His parents fostered her at the age of seven, and formally adopted her later. His daughters were Shirley’s bridesmaids when she married Robin. He said that, as he approaches the age of 86, death and grieving are accepted parts of life, but the public nature of this kind of death makes it his constant background thought. For him, the brutality of his sister’s death means it will be felt for a much longer period than other deaths. He would like to think that family support and his faith will continue to give him strength when his sister’s death is no longer a news item.
Initially, XY was not able to sleep or go to school. She spoke about quitting hockey, a sport she loves, because the last time she saw her grandmother was after a hockey game. She drew scales from a sad face to a happy face for three scenarios. Towards the sad end of the scale were how she feels now and how she is doing at school, whereas in the midpoint was how things were in her family.
RJ Kidd described the emotions she has felt since her mother‑in‑law’s death, including depression, anxiety, not knowing how to feel, and the guilt of moving on without her. She is also worried about the particular impact the offence has had on her son AB.
Rebecca Kidd said that life as she knew it has been destroyed by her mother’s death. There are no more family get‑togethers, no contact, no messages, just loneliness. She misses the effort her mother put into keeping the family happy. Music is her only source of peace.
The victim impact statements are replete with profoundly moving sentiments. All convey the aching grief that Mrs Kidd’s loved ones are suffering, and the immeasurability of their loss, particularly where that loss was at the hands of another family member. As far as it is permissible to do so, I have had regard to them in considering sentence.
I wish to add this. I know there is nothing this Court can say or do to lessen the grief suffered by Mrs Kidd’s loved ones. The sentence to be imposed is not a reflection of the worth of her life. It cannot be. It simply reflects, as it must, the many and varied factors I am required by law to take into account, only one of which is the impact on victims.
Nature and gravity of offence
I turn now to the nature and gravity of manslaughter generally, and of this offence in particular, including Hayden Kidd’s level of culpability.
Manslaughter in this State is (mostly) a common law offence.[7] The maximum penalty is set by statute at 25 years’ imprisonment.[8]
[7]The notion of dangerousness, for the purposes of the common law concept of manslaughter by unlawful and dangerous act, has been modified by s 4A of the Crimes Act 1958 (Vic), but that provision has no application to the present case.
[8]See s 5 of the Crimes Act 1958 (Vic).
While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and the resulting sentences, vary widely.
The form of manslaughter relied on here is manslaughter by an unlawful and dangerous act. This means that Hayden Kidd’s acts that caused death were both unlawful and dangerous. They were unlawful because they involved an assault. They were dangerous because a reasonable person in his position would have realised that, in performing those acts, there was an appreciable risk that Mrs Kidd would suffer serious injury.
This particular offence had some serious features about it, including the following.
First, every offence of manslaughter has a grave component in that, by definition, the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.
Secondly, here, the life of a beloved family member has been taken as a result of unlawful and dangerous conduct. As the victim impact statements show so graphically, Mrs Kidd’s family are, naturally, devastated at their loss.
Thirdly, an entirely innocent person was killed in her own home by multiple extremely violent and brutal blows to the head with a gardening‑implement‑turned‑weapon capable of causing catastrophic injury.
Fourthly, I am satisfied that Mrs Kidd was struck to the back of the head when incapacitated.
The foregoing matters must be weighed against factors limiting the gravity of this instance of manslaughter, which include the following.
By far the most important factor reducing the gravity of this offence is the fact that Hayden Kidd was suffering from a cannabis‑induced psychosis in the immediate lead‑up to the offence and at the time of its commission. His mind was so disordered that he believed his grandmother was his sadistic stepfather and that his cousin was his younger self, and that his safety was under threat. While his plea of guilty formally admits that he had sufficient awareness to commit an unlawful and dangerous act that caused death, I am satisfied that this is barely so. For it is plain that his awareness of what he was actually doing at the time was severely compromised. Thus, in the circumstances of this case, his moral culpability must be very low, if not non‑existent.
This point is driven home by the fact that his psychosis — his loss of touch with reality — was so florid that, consistently with the views of the two psychiatrists, were his psychosis the product of a mental illness like schizophrenia, instead of being cannabis‑induced, he would have had a complete defence of mental impairment. In other words, the experts were of the view that he could not reason with a moderate degree of sense and composure about whether the conduct in which he engaged, as perceived by reasonable people, was wrong.[9] While those found not guilty by reason of mental impairment are usually placed on supervision orders (whether custodial or non‑custodial), and may even be released unconditionally,[10] they have insufficient moral culpability to warrant criminal responsibility. Now, while criminal responsibility is admitted here, and must be because the psychosis was cannabis‑induced,[11] in my opinion, his level of moral culpability for his offence is very close to, if not the equivalent of, a person found not guilty by reason of mental impairment.
[9]See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[10]See ss 23 and 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[11]See, e.g., R v Gibson [2017] VSC 634 at [7] and the cases there cited.
As was pointed out by Mr Glynn, who appeared for the Director on the plea, the position in Victoria historically was that the fact that an offence was committed during a period of psychosis is not mitigatory if that psychosis was induced by drugs.[12] The position has developed in more recent times so that a drug‑induced psychosis may still be mitigatory provided that the offender was not reckless as to the risk of a psychotic episode when he ingested drugs.[13] In this regard, Mr Glynn was right to accept that there is no evidence of Mr Kidd experiencing any previous psychotic episodes as a result of cannabis use. And he was also right to accept that the principles in R v Verdins[14] have application.
[12]Mr Glynn cited R v Redenbach (1991) 51 A Crim R 95 at 99. See also, e.g., R v Howell (2007) 16 VR 349 at 355 (per Nettle JA); and R v McRae [2008] VSCA 74 at [15] (per Vincent JA).
[13]Mr Glynn cited R v Martin (2007) 20 VR 14.
[14]R v Verdins (2007) 16 VR 269.
However, Mr Glynn submitted that there is some evidence that Mr Kidd had previously experienced some kinds of mental health symptoms when he had taken drugs,[15] which he further submitted is relevant to consider in assessing the weight to be given to Verdins factors.
[15]Mr Glynn referred to Dr Sullivan’s report (30 November 2023) at [44], [54] and [113].
I do not accept this submission. While there was evidence that Mr Kidd had had some previous episodes of disorientation, confusion or abnormal perception, and perhaps two incidents of aggression directed at objects, not people, there was no suggestion that he previously had any similar psychotic episode of violence resulting from cannabis use. Both psychiatrists addressed this issue. Thus, in his report, Dr Sullivan said this:[16]
The account of Mr Kidd suggests that his mental state at the time was marked by unease, perceived threat, persecutory ideation, confusion, and possible misidentification of others. This was associated with extreme violence, which is uncharacteristic for Mr Kidd. There was no indication of significant preceding or persisting psychotic symptoms. He does note previous episodes with some similarity, marked by disorientation, confusion, or abnormal perception following substance use. He also notes at least two prior episodes of impulsive aggression directed at objects and not people, with limited recollection, possibly precipitated by substance use or by unwanted recollections of past abuse.
[16]See Dr Sullivan’s report (30 November 2023) at [127]; and see also the trial transcript (17 April 2024) at, e.g., p 498.
Similarly, Dr Deacon said this in his first report:[17]
Mr Kidd does not have an enduring psychotic disorder. He reported that he had twice previously experienced similar derealisation‑like experiences, but it is unclear if they similarly related to cannabis, or whether they independently occurred in the context of a trauma‑related triggered derealisation experience. The video footage from 13 December 2020 in relation to an incident when Mr Kidd was observed and video‑recorded to have aggressively kicked a bin outside his property cannot be interpreted to represent a specific mental state. It was noted in the statement of Rebecca Kidd in relation to this incident, Mr Kidd was sleep deprived and potentially withdrawing off cannabis.
[17]See Dr Deacon’s report (13 July 2023) at p 13[17].
That said, I understood Mr Glynn to accept that Mr Kidd’s moral culpability is reduced by reason of his deluded state at the time of the offending. However, to the extent that his submission implies that that reduction is limited by his previous experience with drugs and mental health problems, for the reasons I have given, I do not accept that submission.
Thus, overall, while it is still a serious crime, and notwithstanding its objective gravity shorn of Mr Kidd’s psychotic state, this offence of manslaughter must be regarded as substantially less serious than many other instances of the offence encountered in practice.
Mitigating factors
Plea of guilty
I turn next to consider the mitigating factors urged by Mr Marsh, commencing with the plea of guilty. This is a significant mitigating factor, for these reasons.
First, while the plea of guilty to manslaughter was not entered formally until 19 April this year — i.e. after the commencement of the trial and the conclusion of the Crown case — an offer to plead guilty to that offence was made at an early opportunity, following a case conference, on 14 December 2023. This offer was rejected by the Director a week later. It is put by Mr Marsh, and accepted by Mr Glynn, that this makes it an early plea of guilty.
Second, while some witnesses, including Robin Kidd and Greg James, were cross‑examined at a Basha hearing in March 2023, Mr Kidd was still facing a murder charge at that time.
Third, Dr Deacon’s opinion was to the effect that, not only was Mr Kidd’s ability to form murderous intent significantly compromised, but that he also lacked a significant degree of conscious, voluntary and deliberate control over his bodily actions. Were a jury to accept that opinion, or to fail to exclude it beyond reasonable doubt, Mr Kidd may have been acquitted of manslaughter on the basis that the Crown had failed to prove that the acts causing death were conscious, voluntary and deliberate. Thus, Mr Kidd has pleaded guilty to manslaughter despite an arguable defence to that charge as well. In my view, this makes his plea of guilty all the more valuable in mitigation.
Remorse
Next, I am satisfied that his plea of guilty also indicates genuine remorse. Further, Mr Kidd’s presentation to and discussion with Dr Deacon made it plain to him that he was genuinely remorseful for his offence. As Dr Deacon explained in his most recent report,[18] Mr Kidd:
reflected that he was initially confused in regards to the offence in the context of his psychotic mental state. He has since come to appreciate the complexity of his psychosis. He has also appreciated the relationship of his deteriorating mental health and the offence. He has clearly been significantly impacted by the offence appreciating the gravity of impact on his family, combined with self‑hatred.
[18]Dr Deacon’s report (4 June 2024) at p 3.
Relative youth
Another mitigatory consideration is that Mr Kidd was only 20 at the time of the offence, and is only 22 now. As Hollingworth J said only last year in DPP v JA & Ors:[19]
[26] The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. There is a significant public benefit in rehabilitating a young offender, and maximising the prospect that they will go on to live a peaceful, productive and law‑abiding life.
[27] However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.
[19]DPP v JA & Ors [2023] VSC 531 at [26]–[27].
While these remarks were made in the context of a case involving younger offenders than Mr Kidd, they apply with full force in this case, bearing in mind his particular age. For, while the offence is a homicide, as I have explained, in the unusual circumstances that pertain here, and notwithstanding the brutality of the acts causing death, it is a substantially less serious instance of manslaughter than is commonly encountered in practice.
Absence of prior convictions
Further, the fact that Mr Kidd has no prior convictions is a matter that goes in his favour, both in terms of the application of principles concerning young offenders, and for its own sake. It is also relevant when considering other matters, such as his prospects of rehabilitation.
Particular hardship of imprisonment
Another matter to consider is that both Dr Sullivan and Dr Deacon opine that Mr Kidd suffers from PTSD as a result of his childhood traumas. In his most recent report, Dr Deacon said that, while Mr Kidd’s mental health has improved in prison relative to his time in the community, he remained vulnerable to experiencing the triggering of PTSD symptoms in custody. In this context, said Dr Deacon, he may experience custody as more onerous than a person in normal mental health.
Thus, while I think that that risk gives rise to some mitigation, it is only a modest factor in the scheme of things. Further, as Mr Marsh conceded, and as Dr Deacon acknowledges, Mr Kidd’s mental health has actually improved in prison.
Good prospects of rehabilitation
Finally, I am satisfied that, while Mr Kidd’s prospects of rehabilitation are not excellent, they are at least very good. On the one hand, he has little history of employment and has struggled with drug abuse for several years. On the other, factors pointing to better prospects are his relative youth, his lack of criminal history, his plea of guilty, his remorse, and his growing insight into both his cannabis use and his PTSD resulting from severe childhood abuse.
Further, Dr Deacon offered this opinion in his most recent report:[20]
Mr Kidd’s prognosis and prospects of rehabilitation are likely to be favourable. He has demonstrated the capacity to effectively engage in treatment for his mental health problems whilst he has been in custody. He is committed to abstain from illicit drugs in the future. He will likely require medical management for prescribed medication and psychological follow‑up when he transitions to the community. The lack of family support is likely to make his adjustment to community living more challenging.
[20]Dr Deacon’s report (4 June 2024) at p 3.
I accept that evidence, which, if I may say so, represents a balanced view as to the matters that are likely to affect Mr Kidd’s future prospects of rehabilitation.
Sentencing purposes
I turn now to the purposes of sentencing.
In my opinion, given Mr Kidd’s very low moral culpability as a result of the unforeseen cannabis‑induced psychosis he was suffering at the time of the offence, a good deal less weight than usual must be given to general deterrence, specific deterrence, and denunciation.
That said, I accept that some weight must be given to those purposes to vindicate the sanctity of human life and given Mr Kidd’s acceptance, through his plea of guilty, that he committed the crime of manslaughter by an unlawful and dangerous act in the presence of his seven‑year‑old cousin. As Mr Glynn submitted, there is more to sentencing than just an assessment of moral culpability.
Further, while I accept that Mr Kidd had no forewarning that smoking cannabis might cause him to become violently psychotic, he is now aware of that possibility, however remote or otherwise a recurrence of the same effect may be. To that extent, there is a role in the sentence for specifically deterring him from smoking cannabis in the future.
In considering the sentencing purpose of just punishment, I think it should also be recognised that part of his punishment, in addition to the sentence I am about to pass, will be not only the feelings of responsibility he will continue to have for unlawfully killing someone he loved, but also the odium he is likely to suffer forevermore in the minds of at least some of his relatives.
Given Mr Kidd’s relative youth, his previously clean criminal record, his plea of guilty and his remorse, and my view that he has good prospects of rehabilitation, I think that the sentencing purpose of rehabilitation must be afforded substantial weight.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for manslaughter. This is but one factor in sentencing, and certainly not a controlling one at that, but it is nevertheless important in the sentencing synthesis.
To this end, I have had regard to sentencing statistics for the offence.[21] In doing so, however, I recognise that such statistics are of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations. Further, those statistics concern sentences imposed during a period spanning both the previous (lower) maximum penalty and the current (higher) maximum for manslaughter. Nevertheless, they do give some guidance.
[21]See Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 274, June 2023.
While other sentences are not precedents to be applied or distinguished, sometimes, case comparisons may assist in gauging current sentencing practices. However, neither counsel nor I found any decided cases that were relevantly similar to the present case or that provided much assistance in this regard.[22] Thus, I was driven to consider manslaughter sentences more generally.
[22]That said, the same issue of the impact of drug‑induced psychosis on sentence has arisen in cases of murder. See, e.g., R v Sebalj [2006] VSCA 106 and R v Gibson [2016] VSC 634, where substantially shorter sentences were imposed on account of this factor, notwithstanding the objective gravity of the offences.
In the end, as always, because of the limits of statistics and the process of comparison, I have been driven to rely mostly on the circumstances of this case and sentencing principles and purposes to arrive at the appropriate sentence for this offence of manslaughter.
Prison sentence combined with community correction order inappropriate
During the plea, I raised the possibility that one form of sentence to be considered might be a prison sentence combined with a community correction order (“CCO”). To that end, I called for and received a report from Corrections on Mr Kidd’s suitability for a CCO. Unsurprisingly, he was considered suitable for such an order.
Mr Marsh submitted that such a sentence would be open and preferable in this case, but he also accepted that a conventional prison sentence with a non‑parole period would be open.
Mr Glynn, in contrast, submitted that a prison sentence combined with a CCO would not enable the imposition of a head sentence long enough to cater for the gravity of this offence, notwithstanding the mitigating factors and the impact of the cannabis‑induced psychosis on Mr Kidd’s moral culpability.
As will be apparent from the sentence I indicated at the outset of these reasons, and which I am about to impose, I accept Mr Glynn’s submission in this respect.
Sentence
I turn now formally to pass sentence.
Mr Kidd, would you stand, please?
As I indicated earlier, balancing all the matters the best I can, and having regard to the fundamental principle of parsimony,[23] for the offence of the manslaughter of Shirley Kidd on 28 May 2022, Hayden Kidd is convicted and imprisoned for five years, and I fix a non‑parole period of two‑and‑a‑half years.
[23]See s 5(3) of the Sentencing Act 1991 (Vic).
I have fixed a non‑parole period that is shorter than usual both in absolute terms and as a proportion of the head sentence. Given all the factors in aggravation and mitigation, and particularly Mr Kidd’s relative youth, guilty plea, remorse and prospects of rehabilitation, I think this is an appropriate non‑parole period.
While the question whether and, if so, when Mr Kidd is released on parole is a matter for the Adult Parole Board, given the risk of his institutionalisation with further incarceration (which Dr Deacon recognised in his most recent report), I would urge the Board to release him on parole as soon as he is eligible.
Pursuant to s 18 of the Sentencing Act, I declare that, not including today, 795 days of pre‑sentence detention be reckoned as served under this sentence.
Finally, I am required, by s 6AAA of the Sentencing Act, to declare the sentence I would have imposed but for Mr Kidd’s plea of guilty. This is always an imprecise exercise. Nevertheless, my best estimate is that, had he pleaded not guilty and been found guilty of manslaughter following a trial, I would have imposed a sentence in the order of seven years’ imprisonment with a non‑parole period of four‑and‑a‑half years.
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