R v Kelly[1998] QCA 340

COURT OF APPEAL

THOMAS JA

MACKENZIE J

HELMAN J

CA No 167 of 1998

THE QUEEN

v.

STEPHEN ROY KELLY Applicant

BRISBANE

DATE 06/08/98

JUDGMENT

MACKENZIE J:  The applicant pleaded guilty to manslaughter and was sentenced to 12 years' imprisonment with a non-parole period of four and a half years.  The body of the victim was found in a putrefied state near a road at Sheldon.  Shortly after that the applicant volunteered to the police a version of events in which he said he collected the victim from Ascot and later dropped her off at the Transit Centre from which she intended to travel to Sydney.

Police investigations established that he had told several lies in their interviews with him, disposed of some of her belongings, and cleaned out the boot of his car on the weekend that her body was found.  He was arrested and subsequently asked to see the arresting officer to whom he made incriminating admissions. 

The version given on the second occasion was to the effect that after meeting her he had taken her to his home.  During the course of an argument they had pushed each other a few times.  On one occasion when he had pushed her she had tripped and hit her head on a besser block wall outside his house and became unconscious and subsequently died.

The forensic pathologist who examined the body could not reconcile this version with the injury which caused her death.  Her skull was split through the base from ear to ear in a way which would have required application of severe force, probably on one occasion, to cause the injury.  It was of a kind often seen in car or motorcycle accidents consistent with a compression of the skull and inconsistent with merely falling on to a hard surface.  It was consistent with the head being forced on to or impacting at great speed with a broad, flat surface, such as a smooth concrete floor.

There was evidence that the deceased woman had ingested alcohol and drugs which may have predisposed her to injury by reducing her defence mechanisms, but not in concentrations which were life-threatening in themselves.  While there may not have been precise unanimity as to the way in which the death may have occurred, both counsel accepted that the applicant should be sentenced on the basis that severe force was required to cause the injury.

The accused had been convicted in 1975 of doing grievous bodily harm with intent to do grievous bodily harm by stabbing and sentenced to 10 years' imprisonment.  The sentencing Judge on this occasion took into account this conviction as evidence that in some circumstances he had a propensity towards violent conduct.  Otherwise the applicant had two admitted convictions for offences of dishonesty and one for assault occasioning bodily harm for which he received community service in 1989.  That was the last entry in his criminal history and these other offences, other than the offence of grievous bodily harm with intent to do grievous bodily harm, do not appear to have influenced the sentence imposed.

The Crown had submitted that at least 12 years was the appropriate sentence.  The defence contended that the range was six to 11 years.  It is submitted in this Court, in the written submissions, that eight years' imprisonment, with a non-parole period of three years, should have been imposed.  It was submitted that in the scale of manslaughter offences the present offence was a long way from the end of the scale which approximated murder.  It was submitted that there was no weapon involved, no sustained violence and that the death was properly characterised as the fortuitous outcome of a severe push inflicted on the deceased.  It was submitted that there had been insufficient regard paid to the objective nature of the accused's conduct and too much to his previous conviction in imposing a sentence of 12 years' imprisonment.

The learned trial Judge observed, quite rightly, that the circumstances in which the deceased was killed were known only to the applicant.  He said that having regard to the submissions of counsel, he proposed to sentence on the basis that he must have used, and did use, severe force on the victim and sufficiently severe to have somehow caused her to suffer the skull fracture which was the cause of her death.  He was, in my view, entitled not to take the applicant's version of events at face value having regard to the medical evidence and, it is apparent from what he said, that he acted on the basis that severe force had been used.

Nevertheless, the case is one where there is no evidence of violence in the relationship between the applicant and the deceased except on the occasion of her death.  We were referred to the matter of The Queen against Smith which, in my view, has more serious features.  In that case there was a history of violence against the victim who also suffered from significant physical and other handicaps.  That was a case where a 12 year sentence was held to be not manifestly excessive.

I am satisfied that the previous conviction to which I have referred must be given weight in determining what is appropriate.  However, I have come to the conclusion that the sentence imposed was manifestly excessive, given the basis upon which the trial Judge was forced to act, notwithstanding that he may have thought that there was more to the matter than was before him.

In all of the circumstances, it is my view that a sentence of nine years' imprisonment with a non-parole period of three and a half years, should be substituted for the sentence imposed below and it would be therefore my view that the order of the Court should be that the application for leave is granted, that the appeal be allowed, and that a sentence of nine years' imprisonment, with a non-parole period of three and a half years, be substituted.

HELMAN J:  I agree.

THOMAS JA:  I agree.  The order of the Court will be that which has been proposed by Mr Justice Mackenzie.