R v Kitchin

[2001] VSCA 66

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 154 of 2000

THE QUEEN

v.

TROY ALLAN KITCHIN

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JUDGES:	WINNEKE, P., BROOKING and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2001
DATE OF JUDGMENT:	14 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 66

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Criminal law - Evidence - Concert and aiding and abetting - Conduct after crime relevant.

Criminal law - Sentence - "Assisting an offender" - Aggravating features of principal offence relevant - Murder as principal offence - Assistor possible participant in murder - Proper sentencing approach.

Crimes Act 1958, s.325.

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	S.Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr M. Taft	Andrew George

WINNEKE, P.: 

1  Brooking, J.A. will give the first judgment in this appeal.

BROOKING, J.A.: 

2  On 28 March 1999 Elijah Wolf Ross was murdered in horrifying circumstances.  He was a cultivated man of wide interests and unusual background - dealt with in the judge's reason for sentence - who travelled about the country in a small campervan.  He did nothing to contribute in the slightest degree to the brutal attack which led to his death.  He was one of four men working as pickers at a tomato farm.  The other three were David John Scott, Troy Allan Kitchin and John Geoffrey Swallow.  Scott often went by the name of Bob Mann because he had absconded while on bail in Queensland for sexual offences against children.  Scott and Kitchin had become friends some months before the killing.  They had come down together from the Northern Territory, working in various labouring jobs.  They shared a tent on the tomato farm at Strathallan.  Swallow too had a tent.  The victim, Ross, lived in his campervan, which was parked a short distance from the tents, but closer to Swallow's than to the two- man tent.  The two tents were in diagonal corners of a high open shed.

3  On the night of 27 March 1999 the four men sat around a camp fire in the shed, talking.  Kitchin was drinking cask wine, but none of the other three was drinking alcohol.  Ultimately Swallow went to his tent to sleep and Ross to his van.  The other two, Scott and Kitchin, remained talking by the camp fire for hours.

4  As dawn was breaking Swallow was awoken by a terrible scream coming from the campervan.  He quickly emerged from his tent, but was tackled and brought to the ground by Kitchin, who said to him, "Don't go over there or you will get killed".  Scott had attacked the sleeping Ross in his van, opening the sliding door and leaning in and stabbing him repeatedly with a 70mm bayonet.  (the bayonet belonged to Kitchin.)  Despite his injuries Ross managed to close the door and lock it. 

Scott then approached Kitchin and Swallow and said, "Find me a bit of wood or rock to smash the window.  The coward has locked himself in".  Neither man moved, and Scott walked off, saying to Swallow, "Don't run or I'll catch you".  Scott then found a piece of timber, smashed the window of the van, opened the sliding door and resumed his stabbing of Ross.  While this was going on Kitchin sat beside Swallow on the ground.  Scott then told Swallow to look for the keys in the van.  Swallow and Kitchin got into the back of the van and Kitchin told Scott that they had to take Ross to hospital.  Very shortly after this Ross stopped breathing.  Either Scott or Kitchin found the keys to the van.  Scott locked Swallow in the back of the van with Ross, Kitchin got into the passenger seat and Scott started to drive the van away.  Scott then discovered that the van was nearly out of fuel and told Swallow to go back and get some money from his (Swallow's) tent.  Swallow got out of the van and did as he was told.  Kitchin went with him.  Kitchin told him, "Don't be worried, I won't let him hurt you".  Scott then locked Swallow in the back of the van again and they drove off, with Kitchin again in the passenger seat.  After they drove off the second time Swallow heard the two men in the front seat discussing whether to get fuel first or to dump the body first.  They were also discussing what to do with him.  He got the impression that Scott wanted to kill him but that Kitchin was telling him not to.

5  After they refuelled at a service station on the way to Echuca Kitchin drove and Scott became the front-seat passenger.  At the service station Swallow had, on Scott's instructions, given his keycard and pin number to Kitchin and Kitchin had used them to pay for fuel and cigarettes.

6  Kitchin drove the van to Echuca so that money could be withdrawn from the $1000 or so which Swallow had in a bank account.  Scott told Swallow to get as much money as he could from the account and Kitchin accompanied Swallow to an automatic teller machine, telling him to stay calm and not try anything silly.  Swallow withdrew $500 from his account and they went back to the van and Swallow gave the money to Scott.  They drove off, with Kitchin still at the wheel.  Swallow heard the two men discussing which roads to use and where they would dump the body.  They also discussed whether to leave Swallow with the body and give themselves a head start or take him with them.  Kitchin drove to an area with which he was apparently familiar, near Lake Eppalock, saying that it was a good spot, and stopped the van in a secluded area of bushland.  Scott told Swallow to remove the body from the van, which he did, and Scott told Swallow to cover the body.  Swallow did this, with the assistance of Kitchin, so that the body was covered with a sleeping bag and then sticks and leaves.

7  When they drove off, Kitchin was still the driver.  Before they reached the next town Scott threw the bayonet out of the van's window into the bush.

8  When they reached a town Kitchin told Swallow that he wanted to get some grog and asked him for his keycard, which he was given.  Kitchin then walked into a shopping centre, Scott staying with Swallow.  Kitchin returned with some liquor, saying that he had tried to get some more money out but could not because the machine would not let him.  It later appeared that after buying the liquor Kitchin had tried to make an eftpos withdrawal of $400 without success and had then succeeded in making a $200 withdrawal.

9  According to Swallow, it was after this incident that Kitchin, who was still driving and drinking rum and cola, made a telephone call on Ross's mobile phone, arranging to drop off some money which he owed.  Later Kitchin pulled up at the house and a man came out and Kitchin gave him some money, and a walkman which belonged to Ross.  (According to Kitchin's record of interview, this incident occurred before the body had been disposed of).

10  As well as giving his creditor Ross's walkman, Kitchin kept for himself Ross's pocket organiser.  Kitchin asked Scott for, and was given, half of Swallow's money that had been obtained.

11  Scott and Kitchin left Swallow in the city of Melbourne, Scott threatening him as they did so.

12  By his own account, Kitchin remained in Scott's company for about two weeks after the killing.

13  According to Swallow he was in fear for his life at all times and therefore did not report the crime to the police.  He was questioned by police on 10 April 1999, making a false statement.  Four days later he made another statement, which the judge accepted as true.

14  On 12 April 1999 the police inspected the bloodstained van, which had been found abandoned in New South Wales.  On the same day police contacted Kitchin's mother and as a result he telephoned the investigating officer and when questioned said he knew nothing about the fate of the deceased.  Later that day he was arrested and told, "You are under arrest for the murder of Elijah Ross".  He was questioned by the police on 12 and 13 April, and so before the making by Swallow of his statement of 14 April in which, as the judge found, he told the truth.

15  In the first of his interviews Kitchin said that after Swallow and Ross went to bed:

"...it was just me and Dave left there and he told me he didn't like Elijah and that he wanted to kill him and I just figured it was just talk and a couple of times durin' the night - I'm not too sure on what time I went to bed because I had had a few drinks, but a couple of times durin' the night Dave approached Elijah's van and opened the door and Elijah asked what he wanted and he said, 'A coffee,' and I think Elijah knew somethin' was suss, because there was coffee in the camp anyway...Just before the sun came up Dave had woken me up.  He was in the tent and he said, 'I'm gonna do it,' and he was outside the tent.  I got - I came - I got up.  I came outside the tent and he opened Elijah's door and he had a 70 centimetre World War 2 bayonet and he just started stabbing Elijah.  He was yelling and screaming and John come flyin' out of his tent to see what was goin' on and I went straight over to John and as he was coming up out of his tent I just pushed him with the palm of my hand and told him to sit down and not go anywhere over there or, you know, he'd get himself killed."

16  In the second interview he asserted again (question 46) that he did not realise that Ross was to be killed until Scott woke him up.  His case put by counsel on the plea was that he "didn't know anything was coming".

17 I have just mentioned the plea and I have not yet recorded the fact that Kitchin, having been told that he was being arrested for murder, was at the end of the second police interview told that he would be charged with being an accessory to murder. He pleaded guilty to "assisting an offender", contrary to s.325(1) of the Crimes Act 1958, at his committal, and on 21 April 2000 he and Scott were arraigned in the Supreme Court, when Scott pleaded guilty to a count of murder and he himself pleaded guilty to a count of assisting Scott, contrary to s.325(1). The pleas were heard consecutively and in sentencing the offenders the judge emphasized that he would distinguish between the evidence admissible against one and that admissible against the other. His Honour sentenced both men on 14 June 2000. He found that Scott had an IQ which put him in the range of mild intellectual disability, that he was highly suggestible and that Kitchin had been aware that the murder would take place and had indeed induced or encouraged Scott to commit it. Scott was sentenced to 17 years' imprisonment with a non-parole period of 12. Kitchin was sentenced to seven years with a non-parole period of five years.

18 Against that sentence he appeals pursuant to leave granted on 20 November 2000 under s.582 of the Crimes Act.  There are now three grounds of appeal: 

"1.     That the Learned Sentencing Judge erred in concluding that the applicant was not entitled to have his co-operation with the police considered as a mitigating factor in reduction of sentence.

2   That the Learned Sentencing Judge erred in engaging in speculative reasoning and thereby took into account irrelevant matters in drawing factual conclusions forming the basis of sentencing as it was not open on the evidence for the Learned Sentencing Judge to reasonably come to the view as to the applicant's 'story' being 'demonstrably' false.

3.       That the sentence is manifestly excessive."

19  The third ground has not been pursued.

20  Early in the plea on the appellant's behalf the judge mentioned that the appellant had been arrested for murder.  In the course of that and the following day, the judge discussed at length with counsel for the appellant and the Crown prosecutor the role played by the appellant shortly before the killing and for some time after it and observed that if it was permissible to take a certain view of the facts the appellant was guilty of murder.  I shall not summarise this lengthy discussion or the evidence bearing on it.  To do this satisfactorily would require a lengthy summary.  The appellant, as I have said, told the police that before he and Scott retired for the night Scott had said that he did not like Elijah and wanted to kill him.  The appellant went on to tell the police of a couple of incidents later that night when Scott opened the door of the van and, finding Ross to be awake, asked for a cup of coffee.  The appellant said to the police, "I think Elijah knew something was suss", since coffee was available at the camp fire.  This might be regarded as an admission by the appellant that Scott had been taking the first steps in an attempt to murder.  Further, it might be argued that by his conduct the appellant showed that he knew at once what was meant by Scott when Scott woke him with the words, "I'm gonna do it" and that this was significant.  Moreover, conduct after the crime is often properly relied on in support of a Crown case of concert or aiding and abetting[1].

[1]See, for example, R. v. Dunn (1930) 30 S.R.(N.S.W.) 210; R. v. Clarke & Wilton [1959] V.R. 645 at 652; R. v. Knorpp (Unreported) Court of Criminal Appeal, 8 February 1985, per Starke, J. at p.6.

21  But it is unnecessary to consider whether the Crown might have succeeded in putting together a case of murder against the appellant based on concert or aiding and abetting.  It is enough to say that the applicant's own account of what had taken place by the time the bayoneting began and the numerous other circumstances discussed by counsel with the judge are to be borne in mind in considering the first ground of appeal, which complains of the judge's observation:

"Your attempt on 13 April 1999 in the presence of the police to find the body was a genuine one.  However, I do not consider your apparent cooperation on 12 and 13 April 1999 with the police betokens remorse.  Rather, it was an attempt by falsehood to save yourself from being charged with murder.  Accordingly, I do not take your apparent cooperation with police into account in reduction of sentence.  (I do not of course take it into account in increase of sentence, for you are to be sentenced for accessory not for murder)".

22 I would have expected an intelligent person (which the appellant plainly was) in the appellant's position to believe, at the time of his police interviews, that there was a danger that he would be charged with murder. I have no doubt that there was such a danger. And indeed the appellant had been told that he was being arrested for murder. I think it may be said that the appellant is lucky that he was not charged with murder. It would not have been wrong to charge him with murder, on the basis that an alternative verdict of assisting an offender would have been open under s.325(2). He obviously had no defence to the charge of assisting an offender and so the case cannot be said to be one in which acceptance of a plea of guilty to the lesser charge ensured that a criminal would not escape punishment altogether.

23  In support of the first ground of appeal Mr Taft relied on a police officer's evidence that the appellant had been cooperative in the interviews and had made a genuine attempt to find the body.  (The judge accepted the latter fact.)  Mr Taft rightly observed that on the plea the Crown had invited the judge to accept the essential truth of the appellant's account.  (The judge was well aware of this.)  Mr Taft challenged the judge's conclusion that the appellant's account was contradicted by Swallow, was demonstrably false and was an attempt by falsehood to save himself from being charged with murder.

24  The first ground can be conveniently considered together with the second, which in terms challenges the judge's view that the appellant's account was demonstrably false.

25  The account characterised by the judge as demonstrably false was summarised by him thus: 

"In essence, Mr Kitchin, you said to the police that you had no expectation that Mr Scott was going to attack the deceased and that when you saw the attack you acted in fear of Mr Scott then and thereafter".

26  There is no doubt that the appellant told the police that he did not expect the attack (see question 26 in the first interview and question 46 in the second and the answers).  It is also true to say that the appellant told the police that he acted in fear of Scott both at the time of the killing and thereafter.  He also gave a number of answers which were either equivocal or inconsistent with the view that he was motivated by fear.  The claim to have acted in fear can be found in the answers to questions 133-141, 159, 533 and 541 in the first interview and to question 36 in the third interview.  I give no references for the numerous equivocal and contradictory answers on this point, which were in themselves enough to warrant the judge's rejection of the claim to have acted in fear, quite apart from the acts done and things said by the appellant at the time of the killing and for a considerable time after it.

27  As regards the judge's rejection of the appellant's claim that he had had no expectation that Scott would attack Ross, the position is not so clear, since the records of interview do not contain the equivocal and contradictory answers which are to be found there on the question of motivation by fear.  Nevertheless, I think it was open to the judge to decline to act on this part of the appellant's account, having regard to what, on the appellant's own account, had been said and done during the night and having regard to the words and conduct of the appellant shortly before, at the time of and after the killing.  Whether it was open to the judge on the material to make an affirmative finding of complicity in the murder is a question I find it unnecessary to determine.

28  For the Crown, Ms Pullen submits that the judge was doing no more than declining to find that the appellant had genuinely and fully cooperated with the police and had done so because of remorse and that his Honour was simply declining to accept the appellant's records of interview as showing genuine and full co-operation, motivated by remorse.  She refers to R. v. Storey[2].

[2][1998] 1 V.R. 359.

29  In relation to both ground 1 and ground 2 Mr Taft relied on what the judge said at paragraph 25 of the reasons for sentence.  Paragraphs 14-16 were under the heading "The Evidence in Relation to Mr Kitchin" and paragraphs 17-26 were under the heading "The Evidence in Relation to Mr Scott".

30  Paragraphs 25 and 26 are as follows: 

"25  Applying the appropriate standard of proof in exculpation (R. v. Storey (1998) 1 VR 359), and conscious of the seriousness of the finding, I am satisfied on the balance of probabilities that Mr Kitchin was the architect of the killing and that you, with your intellectual deficit and dependence, were influenced by him to act as you did.

26  I do not apply those findings in relation to Mr Kitchin, who is before me for accessory, not murder.  I do apply them in relation to you, Mr Scott, in explanation of the crime you committed.  It is probable that Mr Ross died because he was a soldier for Israel."

31  The reference to Ross as a soldier for Israel relates to the judge's view, expressed by him earlier in his reasons, that the appellant, as a "frustrated Army reject", disliked Ross because he had been a distinguished Israeli soldier.  The judge sentenced Scott on the basis that, being of weak intellect and also highly suggestible, he had been induced or encouraged by the appellant to kill Ross because the appellant resented Ross's success as a soldier.  This is what is described as "speculative reasoning" in the second ground of appeal.  Mr Taft submits that there is no sufficient basis in the evidence for the attribution of this motive to his client.

32  Notwithstanding Ms Pullen's submission, it does seem to me that the judge took the view, not only (as I myself would) that the appellant might properly have been charged with murder, but also (a very different conclusion, of course) that, on the material available against him, he had in fact committed that crime.  Also, the judge did not merely decline to accept the record of interview - a fine distinction perhaps.  Notwithstanding his Honour's repeated emphasis on the need to consider separately the material available on the sentencing of each offender and the fact that paragraphs 17 to 26 of his reasons are headed "The Evidence in Relation to Mr Scott", I think he did make an affirmative finding.

33  I reach the conclusion that the judge affirmatively found that the appellant was a party to the murder by reason especially of two things which his Honour said.  The first is his statement in paragraph 16 that he did not take into account the appellant's attempt by falsehood to save himself from being charged with murder because "you are to be sentenced for accessory, not for murder".  The second is the judge's statement in paragraph 23 that the appellant's actions were inconsistent with his not being a party to the murder, coupled with what is said in paragraphs 24 and 25, and with the statement that "I do not apply those findings in relation to Mr Kitchin, who is before me for accessory, not murder".  All this seems to me to be a finding that, on the material available against the appellant, he was complicit in the murder, coupled with an observation that the finding is not to be used in sentencing him, since he is charged only with assisting.

34  I accept Mr Taft's submission that the judge's finding of a motive on the appellant's part is speculative.  This speculative finding may have been critical to his view that the appellant was a party to the murder.  In any event, it seems to me that principle required that in assessing the role of the appellant in assisting an offender the judge should not treat him as having committed an offence with which he was not charged.  It was one thing, in considering whether to credit the appellant with genuine and full co-operation with the police arising from remorse, to ask whether he was motivated by fear of being charged with murder.  It was altogether another to treat the appellant as one of the murderers in assessing his role as an assistor of an offender.  Mr Taft submits that this is what the judge did, notwithstanding his frequently expressed and no doubt firm intention to sentence the appellant simply as an assistor.  Judges are sometimes obliged to perform strange intellectual tasks.  They may have to sentence for manslaughter someone who on the evidence has committed murder, or to sentence for causing "injury" someone who on the evidence has caused serious injury.  In this case the judge had to ignore, in assessing the appellant's role as an assistor, his view (whether or not well founded) that the appellant was a murderer. 

35  The judge had to consider why the appellant had assisted Scott.  It was necessary for him not to answer "because he and Scott had murdered the man".  This intellectual exercise was possible, but was it in fact performed?  Paragraph 15 of the reasons is important here.  Having in the first sentence described as demonstrably false the story that the appellant was not expecting an attack, was the judge, when he went on to refer to "full knowledge of the circumstances of the crime" and "full knowledge of the facts", excluding the appellant's own participation (in the judge's view) in the murder?  Perhaps he was.  Did he allow himself to be influenced in any other way by his view that the appellant was a murderer?  I need not determine these questions, for even if the judge is shown to have misdirected himself, and to have done so in a way which vitiates the exercise of the sentencing discretion, I do not think that a different sentence ought to have been passed, or that it is appropriate and in the interests of justice to quash the sentence and remit the matter to the trial court.

36 The maximum sentence available was 20 years' imprisonment, which shows how seriously the legislature regards this offence. Section 325(4) of the Crimes Act gears the maximum penalty for assisting an offender to the maximum penalty that may be imposed for the principal offence. It does this by fixing a 20 year maximum where life imprisonment may be imposed for the principal offence and by fixing an arguably inadequate maximum penalty in all other cases of five years but not so as to exceed one half of the maximum sentence which may be imposed on first conviction for the principal offence. But I entertain no doubt that in addition, in considering the gravity of an offence against s.325(1), the judge may have regard to the particular circumstances of the principal offence and say, for example, that, other things being equal, assisting an offender is a more serious offence in a bad case of murder than in a not so bad case of murder. This approach can be justified as a matter of sentencing principle in two ways. First, as regards moral culpability, it is (other things being equal) more culpable to assist an offender in a particularly heinous case of murder than to assist an offender in a case of murder which, for example, is just the wrong side of manslaughter. In the second place, if regard is had not to moral culpability but to the harm done by an offence, then it may be said that the more heinous the principal offence the more harmful or potentially harmful is assistance to the offender.

37  This was a bad case of murder.  The killing was a savage and premeditated attack upon a victim who had not been guilty of the slightest indiscretion which might have been put forward in an attempt to palliate, to the most minor degree, the killing.  It was a case in which the public interest cried out for the punishment of the principal offender.

38  The appellant's personal circumstances are dealt with in the judge's reasons for sentence.  I of course have regard to them, although I do not summarise them.  A report from a psychologist was put before the judge and again I need not summarise it.

39  The appellant was aged 27 at the time of sentence.  His plea of guilty is to be taken into account in his favour.

40 A wide variety of acts, many of them minor, fall within the scope of s.325(1). The assistance given here extended over a considerable period and was of a high order.

41  It is impossible to ignore the conduct of the appellant in joining in the extraction of money from Swallow and using it, not just for the purchase of fuel, but for the payment of a debt and other personal purposes.  His attitude to the whole affair can be gauged also by his petty thefts from the deceased.  I emphasize that in making those remarks I am not having regard to his possible role as a murderer.

42  I do not think that a different sentence ought to have been passed and I say that even if all relevant questions are to be resolved in the appellant's favour, including the question whether he is to be given credit for co-operation with the police, something which, I may say, I very much doubt.

43  And so I would dismiss this appeal.

WINNEKE, P.:

44  For the reasons given by Brooking, J.A. I too would dismiss this appeal.

CHARLES, J.A.: 

45  I agree.

WINNEKE, P.: 

46  The formal order of the Court is that the appeal is dismissed.