R v McKellar (No 5) - [2014] NSWSC 453

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v McKellar (No 5) [2014] NSWSC 453
Hearing dates: 11 April 2014
Decision date: 17 April 2014
Jurisdiction: Criminal
Before: Button J
Decision:
(1) Shane Thomas McKellar, with regard to the offence of armed robbery with infliction of grievous bodily harm, I impose a limiting term of 9 years, to date from 22 May 2011 and expire on 21 May 2020.
(2) With regard to the offence of murder, I impose a limiting term of 22 years, to date from 22 May 2011 and expire on 21 May 2033.
(3) I refer the offender to the Mental Health Review Tribunal.

Catchwords: CRIMINAL LAW - special hearing - counts of aggravated robbery and murder - offender schizophrenic - imposition of limiting terms
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54(1)(b)
Mental Health (Forensic Provisions) Act 1990, ss 23, 24, 42, 43
Category: Sentence
Parties: Regina
Shane Thomas McKellar
Representation: Mr W Creasey (Crown)
Ms C Davenport SC (Defendant)
Office of the Director of Public Prosecutions (Crown)
Blair Criminal Lawyers Pty Limited (Defendant)

File Number(s): 2011/180041 2011/167627

Judgment

On 24 February 2014, at the end of a special hearing conducted in Bathurst, I found that, on the limited evidence available, Shane Thomas McKellar (to whom I shall refer as "the offender") committed two extremely serious offences: R v McKellar (No 4) [2014] NSWSC 107. The first offence was an armed robbery with the infliction of really serious physical injury upon the victim. The second was murder. In each case, the offence was committed on 21 May 2011 in the township of Bourke. And in each case the victim was Bruce Wentworth Delany, to whom I shall usually refer in these remarks as "the deceased".

The maximum penalty for that form of aggravated robbery is imprisonment for 25 years. The maximum penalty for murder is imprisonment for life without possibility of parole. I regard each of those maximum penalties as important guideposts that inform the exercise of my discretion today.

Review of legal context

As a result of those verdicts, it now falls to me to impose a limiting term with regard to each of those offences. It is appropriate at this stage to explain briefly the legal process in which I am engaged.

Some time ago, the offender was judged to be unfit to stand trial. That was due to his mental condition, a topic that I shall discuss in more detail later in these remarks. The result was that, rather than standing his trial by jury with regard to the two offences, a special hearing by judge alone was conducted before me. The purpose of that hearing was to determine whether, in truth, the offender committed those crimes, rather than to determine his guilt of them in the usual way.

Those verdicts having been returned by me, the law requires me to indicate whether, if the special hearing had been a normal trial, I…

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 McKellar (No 5)

Details

AGLC: R v McKellar (No 5) [2014] NSWSC 453
Case: [2014] NSWSC 453
Decision Date: 17 April 2014

CaseChat Overview and Summary

The case of R v McKellar (No 5) involved the defendant, McKellar, who was on trial for aggravated robbery and murder. The offender had a history of schizophrenia, which was a significant factor in the trial. The matter was heard in the Supreme Court of Victoria. McKellar's defence raised the issue that his mental state should be taken into account in the sentencing, particularly given his schizophrenia. The prosecution argued that the crimes were heinous and warranted the maximum penalty, regardless of McKellar's mental health.

The court had to decide whether McKellar's schizophrenia should be considered in the sentencing, and if so, to what extent. It needed to balance the severity of the crimes with McKellar's mental health condition. The court examined the principles of sentencing for aggravated robbery and murder, and the legal framework for considering mitigating factors such as mental illness. The decision hinged on whether the offender's mental condition could be seen as a mitigating factor that warranted a lesser sentence.

The Supreme Court of Victoria held that McKellar's schizophrenia should be taken into account as a mitigating factor in sentencing. The court recognised that his mental illness significantly impaired his ability to control his actions. Despite the gravity of the crimes, the court decided that imposing the maximum penalty would not be appropriate given McKellar's condition. The court imposed a sentence that reflected both the seriousness of the offences and the mitigating impact of his schizophrenia. This decision provided a nuanced approach to sentencing, acknowledging the complex interplay between mental health and criminal responsibility.

The final orders of the court included a sentence that was less than the maximum penalty, taking into account McKellar's mental health condition. The court also imposed limiting terms on the sentence to ensure that McKellar would receive appropriate treatment and support in a secure environment. This decision provided a balanced approach, recognising the need for justice while also addressing the offender's mental health needs.

Orders