New South Wales Supreme Court CITATION : R v KELLY [2000] NSWSC 701 revised - 27/07/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70077/99 HEARING DATE(S) : 10/07/00, 11/07/00, 13/07/00 JUDGMENT DATE : 13 July 2000 PARTIES : REGINA v Amos Charles KELLY JUDGMENT OF : Barr J at 1 COUNSEL : Crown: CA Davenport Offender: AI Parker SOLICITORS : Crown: Director of Public Prosecutions (NSW) Offender: Western Aboriginal Legal Service CATCHWORDS : Criminal Law - sentencing - manslaughter - provocation. CASES CITED : R v Fernando (1992) 76 A Crim R 58 DECISION : See paragraph 21. IN THE SUPREME COURT REVISED OF NEW SOUTH WALES COMMON LAW DIVISION AT BROKEN HILL GRAHAM BARR J Thursday, 13 July 2000 70077/99 - REGINA v Amos Charles KELLY SENTENCE 1 HIS HONOUR: At the commencement of his trial for murder, the offender, Amos Charles Kelly, pleaded guilty of manslaughter and the Crown accepted his plea in full discharge of the indictment. The offender and the deceased, Neal Mitchell, resided in Dareton. On 5 November 1998 the offender, the deceased and a number of other people were at the house of a relative of the offender, GraceAnne Smith, in Dareton. They sat around until a late hour drinking. One of the party was Sabana Quayle, the offender's partner. The atmosphere at Ms Smith's house was pleasant and there were no arguments. 2 The offender went home by himself. Some time later, Ms Jennifer Wise, Ms Quayle's sister, went to Ms Smith's house and decided to walk her home. They left Ms Smith's house and were accompanied by the deceased. The three arrived at the offender's house some time after 2am. The offender was in the kitchen cooking a meal for himself. The deceased went into the kitchen and an argument arose between the two of them. I am satisfied that the deceased started the argument, but just why it started is not clear. Ms Quayle and Ms Wise gave statements about the matter to the police but they could shed no light on the reasons and the only account that suggests any explanation is that of the offender himself. I am satisfied that he did his best to explain what had happened. The deceased said something to him about his, the offender's, being jealous and told him not to be jealous. The offender did not understand what the deceased was talking about and tried to take no notice. In an effort placate the deceased he said he was sorry and denied having said anything to suggest that he was jealous. The deceased started pushing him. 3 The deceased's aggression caused the offender concern, not only because the deceased was a heavy man and the offender a slight man but because of a particular susceptibility the offender had to head injuries. In 1994 he had suffered serious injuries when he was assaulted and kicked in the head. He was taken to Mildura Base Hospital and then to the Royal Adelaide Hospital. A serious subdural haematoma developed and had to be drained a number of times. Eventually the drain was successful and the consequent brain swelling reduced, but the offender was left with a serious indentation in the region of the right temple and weakness in the right upper and lower limbs. Those disabilities were permanent and he was advised to be careful to avoid head injury. He believed that he might suffer severe consequences, even death, from a blow to the head. 4 The attack from the deceased was unexpected and the offender had little time in which to act. When he realised that the deceased intended to continue the attack and whilst he was still on his feet the offender moved a few steps to an open kitchen drawer and took up his fishing knife. He threatened to use it on the deceased if he did not stop the attack but did not at that stage try to defend himself with the knife. The deceased responded by pushing him over. The offender hit his head and cut it as he fell. He found himself on the floor with the deceased standing over him with every appearance of continuing the attack. The offender thrust the knife at him a number of times and seven wounds resulted. One of them penetrated the heart and quickly led to the death of the deceased. The offender immediately left the knife where it was, ran next door and telephoned for the ambulance. That call alerted the police, of course, and when they arrived he told them straight away that he was the one who had stabbed the deceased. 5 Some few hours later he was formally interviewed by investigating police officers and gave them an account consistent with the findings I have made. It is significant, I think, that it was almost as an afterthought that he mentioned his concern for his own safety because of the condition of his head and that he did not try to put it forward as an excuse. I am satisfied that his concern on that account was genuine. 6 The offender pleaded not guilty when arraigned in February 2000 and this matter was listed for trial. Both sides then had available to them a transcript of the interview between the offender and the police. However, it now appears that part of the conversation was not transcribed because it was not recorded on audio tapes which were stopped during an interruption to the interview and from which the transcript was prepared. However, the conversation was recorded on the video tape, which continued to run during that interruption. 7 The new material caused both sides to reconsider their positions and that explains why the plea of guilty of manslaughter came to be made and accepted only as the trial was about to commence. In the circumstances the offender is entitled to be regarded as having pleaded guilty at the first reasonable opportunity. 8 The parties made alternative submissions about the proper basis for a conviction of manslaughter. Mr Parker, for the offender, submitted that on all the evidence the Court should have a reasonable doubt that when he stabbed the deceased the offender intended to cause him grievous bodily harm, so the manslaughter should be regarded as having been committed by the offender's unlawful and dangerous act. The Crown contended that the Court should be satisfied beyond reasonable doubt that the offender intended to do the deceased grievous bodily harm when he used the knife. The parties were agreed that if the Court were so satisfied, the proper basis for sentencing would be manslaughter resulting from the provocative act of the deceased. 9 In support of his submissions, Mr Parker pointed to the facts that the deceased had started the argument and had turned the attack from a verbal to a physical one and to the peculiar concern the offender had for his own safety, all of which I accept. Counsel then pointed to a part of the conversation between Detective Senior Constable Sikkema and the offender, previously untranscribed, viz - ACCUSED: He's the eldest, then the second eldest is me sister, me, then my younger brother and step brother. Oh mate, I didn't know. SIKKEMA: I'm sure you didn't mean to. ACCUSED: I didn't mean it either. Just, you know scaring him. Oh gee listen, look this is on video man, oh, I'm fucked. … ACCUSED: I didn't mean it. I didn't mean it. I'm fucked I'm in the middle of it. That knife's too long, sort of must have a soft gut. Thought I'd just pierce him, you know. Bit of a look and blood. But how could I kill him. That fuckin must have hit him in the right spot. … … ACCUSED: … I want no-one to take pity on me, you know, anyone. I did it. I done it. That's it. But I didn't mean to the way it happened. I didn't mean to do it in that way, in that situation, you know. … SIKKEMA: What did you hit your head on? ACCUSED: On the fucking wall. SIKKEMA: Then he's pushing you, then he comes over and belts you. ACCUSED: I got up, grabbed the knife and he pushed me again. He was on top of me, standing on top of me. I hit him before I hit the ground. He pushed me away. Give him a little jab but you know. He came round. He stood over the top of me, trying to belt me. I don't know how many times. That quick. I was stirred up to it. 10 Also recorded in the transcript produced by the police are the following questions and answers - Q. 28 What can you tell me about the death of Neil Mitchell? A. Well, he … Well I went home, right, I went home and him and Sabana come to the home, he said somethin' to me, knocked me to the ground, I got up, I grabbed a knife, pushed him and I stabbed him with the knife, pushed me over at the same time, he stood over the top of me and I was pumpin' the knife into him while he's over the top of me that's all I can say. … Q49 … A Yeah, well, I got up, went to get up and I said sorry to him, I said, "Look, I'm not jealous or nothin, I'm just, you know, I'm drunk," like that there, he pushed me over and I went to the drawer, grabbed the knife, pushed me over again then he got ….he stood on top of me, that's when I got blood all over me. … Q58 And when you got the fishing knife what did you do? A I said to him, "You want this here mate, if you keep fuckin' over me you'll get this here", he downed me and then he stood over the top of me, shoved it up in his gut. Q59 When you say he downed you, what do you mean by that? A He downed me, cut me head open and all here. Q60 How did he cut your head open? A ………………..against the wall. Q61 I'm sorry? A Against the wall. … Q88 Was it your intention to kill Neil? A No. Q89 Were you aware that Neil may have been killed when you stabbed him? A No. Q90 Were you aware Neil may have received a serious injury when you stabbed him? A Yes, a bit of a injury, yeah, I thought, stitches or something in the gut, but I didn't think, you know. … Q99 Had you ever had any sort of fight with Neil before? A No. Q100 Why would Neil think you were jealous of something, had something happened before? A No. Q101 Had there been any dispute between yourself and Neil in regards to women? A No. Q102 And you can't think why -------- A No, I can't. I tell you the truth, he, he called me a jealous cunt, right, he said, "Why are you jealous? Don't be jealous", he suddenly push me over, I said, "I hate people pushin' me over", 'cause I got a sick head, see, I'm a disability person, see that dent there in my head, see ------ Q103 Yeah A See that's why I'm fucked one side here. Q104 Why have you got a dent in your head? A When I got kicked in the head, blood clot on my brain, I even died over it, he brought me back to life. Q105 Was that injury playing on your mind this evening? A Yes. It does when people hit me around, see I don't like it. If they hit me right or push me in the right spot, I'm gone, I'm dead. Q106 And where did Neil push you? A Push me, grab me, push me, stood over me. Q107 And how many times did you think that Neil pushed you? A Twice. 11 It was submitted that, taking all these matters into account and making due allowance for the effects upon the offender of the alcohol he had drunk, there was a reasonable possibility that all the offender had intended was to cause some injury that was not really serious. 12 I am unable to accept that submission. The knife had a long, sharp blade, as the offender knew. He made seven thrusts with it. His description of himself as "pumpin' the knife into him" was apt. All the thrusts were directed at the chest or the abdomen. Whilst four of them produced only superficial wounds, three produced deep wounds, any of which might have been fatal. One penetrated to four centimetres, one to twelve centimetres and one to seventeen centimetres. I think it significant also that soon after the event the offender told the neighbour whose telephone he had used to summon the ambulance that he had stabbed the deceased, and added - He shouldn't have messed with me. 13 I am satisfied beyond reasonable doubt on all the evidence that although the offender did not intend to kill the deceased he did intend to do him really serious injury. I propose to sentence him for manslaughter because his act causing death was the result of a loss of his self-control induced by the provocative attack made upon him by the deceased. 14 The offender is Aboriginal. He is thirty years old and has lived all his life in the far west of New South Wales. He lost his father through death and his mother, because she moved away, at a young age, but has always had the nurture and companionship of his wider family, particularly of his aunt Mrs Beryl Philp-Carmichael, the head of his extended family in the Broken Hill-Menindee area. She knows him possibly better than anyone apart from her own son, with whom he has been very friendly since they were children. 15 The offender has expressed his anguish to Mrs Philp-Carmichael about having caused the death of the deceased. She considers him genuine, and so do I. He has a criminal record which but for one matter I regard as irrelevant in view of the urgent and unexpected circumstances in which this offence took place. The one matter is that in 1989 he was convicted of malicious wounding. I conclude that the offence was not regarded by the sentencing court as a very serious one of its kind because the offender was sentenced only to three hundred hours' community service. Mrs Philp-Carmichael explained that the offender stabbed his brother. He was an older, bigger man who regularly stood over the offender and had done so from an early age. The circumstances of the wounding were otherwise left unexplained. What is clear is that this is not the first time the offender has resorted to the use of a knife when threatened with violence by a stronger person. 16 Counsel referred the Court to a number of authorities dealing with the principles to be applied when sentencing for manslaughter, including special considerations to be borne in mind when offenders are Aboriginal, and particularly for offences committed under the influence of alcohol. It is sufficient to refer to the remarks of Wood J (as his Honour then was) in R v Fernando (1992) 76 A Crim R 58 at 62 - (B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender. (C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. (D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment. (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. 17 In my opinion the level of culpability of the offender was low in view of the following features. 1. The violent confrontation which led to the death of the deceased was not of the offender's making. He was peaceable and bore the deceased no ill-will. 2. His actions were not premeditated and were carried out over a very short period of time. 3. It was the deceased who increased the level of confrontation by beginning to push or punch the offender. Even so, the offender tried to placate him. 4. The offender reasonably believed that, because of the condition of his head, he had a particular need to stop the deceased proceeding further with his attack. 5. Although he knew what he was doing and was able to act rationally, the offender was significantly affected by alcohol and lacked the capacity to make fine judgments. 6. He was immediately sorry for what he had done and tried to get help for the deceased. He has always acknowledged his responsibility and entered his plea of guilty of manslaughter at the earliest opportunity. 18 The offender has been in custody since his arrest on 6 November 1998. Between that day and February 2000 he was kept at Broken Hill where he could be visited by members of his family. Then he was taken to Sydney to be arraigned and that was when the trial date was fixed. I recommended that he be returned to Broken Hill as soon as possible and held there until the commencement of the trial. Notwithstanding that recommendation he has been required to spend the intervening period at Silverwater, over one thousand kilometres away from his family. Only one sister, who is resident in Sydney, has been able to visit him. This has been a matter of particular hardship for him. It and the possibility that he may again be so far removed from his family make for a more lenient sentence. 19 It seems to me that the offender needs a lengthy period of time under supervision on parole outside the prison environment to learn to control his anger, to mitigate his consumption of alcohol and to avoid becoming involved in confrontations and that this justifies the fixing of a non-parole period which is less than three-quarters of the term of the sentence. 20 A victim impact statement has been received from Mrs Doreen Mitchell, the mother of the deceased. She and her family loved their son and miss him very much. It is appropriate to acknowledge the hurt and suffering that they have borne and will bear and for the Court to extend to them its sympathy in their loss. Of course, these matters may not be taken into account in determining the sentence to be imposed. 21 Amos Charles Kelly, I sentence you to imprisonment for seven years, commencing 6 November 1998 and expiring on 5 November 2005. I fix a non-parole period of three and one-half years, which will expire on 5 May 2002, on which day you will be eligible for release on parole. I recommend that you be kept at Broken Hill for classification and for the service of your sentence. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.