The Queen v Kelly - [2013] VSC 144

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0154 of 2012

THE QUEEN

MICHAEL TERRENCE KELLY

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JUDGE:	OSBORN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20-21 March 2013
DATE OF SENTENCE:	27 March 2013
CASE MAY BE CITED AS:	The Queen v Kelly
MEDIUM NEUTRAL CITATION:	[2013] VSC 144

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CRIMINAL LAW – Sentence – Murder – Reckless conduct endangering life – Basis of charge of murder – Constructive intent – Aggravating circumstances of reckless conduct – Aggravating circumstances of murder – Range of culpability in respect of statutory murder – Victim impact statements – Personal circumstances – Medical condition of prisoner – Psychological condition of prisoner – General and specific deterrence – Gravity of offence – Crimes Act 1958 s 3A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Brown	Office of Public Prosecutions
For the Accused	Mr D Dann	Leanne Warren & Associates

HIS HONOUR:

Michael Terrence Kelly, you have pleaded guilty to one charge of murder and one charge of reckless conduct endangering life.

At the time of the offences you lived at Apsley in the Wimmera close to the South Australian border together with your wife and five children. You had a close friend, David Etherton, who died suddenly following an epileptic seizure on 10 January 2012. After Etherton’s death you became extremely depressed.

On 27 January 2012 you were told by one of your sons that one Peter Brown was removing items from Etherton’s house and putting them on a trailer. You notified police and then, with one of your sons, drove to Goroke where Brown lived with the intention of confronting him (and, as you told your wife, of giving him the hiding of his life). Brown was not seen by you at his home when you arrived there but you observed a 45 kilogram gas bottle which you believed had belonged to Etherton.

Later that day Brown was interviewed by police about alleged theft from Etherton’s house. On 7 February 2012 police interviewed Brown with respect to the alleged theft of the gas bottle. The fact of this interview became common knowledge within the Apsley community.

On 11 February 2012 Brown and his fiancée Julie-Anne Trenery-Rogers drove to South Australia to visit friends. On the way home they called in at a friend’s home in Apsley. It appears that someone notified police that Brown had again visited Etherton’s house. Police went to the premises at which Brown and his de facto were visiting and found no offences had been committed. As they were leaving the property your wife and two of your sons arrived. The police told your wife and sons that Brown had done nothing wrong and they should get back into their car and go home. It seems Brown was aware that one of your sons had been present when you and he staked out Brown’s house. Brown abused members of your family, yelling out, ‘Fucking cunts’ and ‘I’m going to kill someone,…

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 The Queen v Kelly

Details

AGLC: The Queen v Kelly [2013] VSC 144
Case: [2013] VSC 144
Decision Date: 27 March 2013

CaseChat Overview and Summary

The Queen brought a case against Kelly in the Supreme Court of Victoria. Kelly was convicted of murder, with a charge of reckless conduct endangering life as a basis for the murder charge. The court was tasked with determining the appropriate sentence for Kelly, considering the nature of the offence and the circumstances surrounding it. The court had to consider whether the charge of murder was appropriate based on the concept of constructive intent, the aggravating circumstances of reckless conduct, and the range of culpability in respect of statutory murder. Additionally, the court needed to evaluate the impact of victim impact statements, the personal circumstances of Kelly, his medical and psychological conditions, and the principles of general and specific deterrence in the context of the gravity of the offence.

The court examined the elements of the crime and the relevant sections of the Crimes Act 1958, specifically section 3A, to assess the appropriate sentence. The court considered the nature of the offence, which involved reckless conduct leading to the death of the victim, and whether the charge of murder was justified based on the concept of constructive intent. The court also evaluated the aggravating circumstances of the offence, including the reckless conduct and the manner in which the crime was committed. Furthermore, the court assessed the range of culpability in respect of statutory murder, taking into account the personal circumstances of the offender, his medical and psychological conditions, and the impact of victim impact statements.

In determining the sentence, the court weighed the various factors, including the gravity of the offence, the principles of general and specific deterrence, and the personal circumstances of the offender. The court considered the medical and psychological conditions of Kelly, as well as the impact of the crime on the victim and their family. Ultimately, the court decided on an appropriate sentence that balanced the need for punishment, deterrence, and rehabilitation. The court also took into account the statutory provisions and relevant case law in reaching its decision.

The final orders of the court included the imposition of a sentence on Kelly, reflecting the gravity of the offence and the circumstances surrounding it. The court ordered that Kelly be sentenced to a term of imprisonment with a non-parole period, taking into account the principles of general and specific deterrence, the gravity of the offence, and the personal circumstances of the offender. The court also considered the impact of victim impact statements and the need for rehabilitation in determining the appropriate sentence. The final orders of the court aimed to provide justice for the victim and their family, while also addressing the personal circumstances of the offender.

Orders