R v Kelly [2012] NSWSC 1104 (14 September 2012)

Last Updated: 20 September 2012

Supreme Court New South Wales

Case Title:	R v Kelly
Medium Neutral Citation:	[2012] NSWSC 1104
Hearing Date(s):	10 August 2012
Decision Date:	14 September 2012
Jurisdiction:
Before:	R A Hulme J
Decision:	Sentenced to imprisonment comprising a non-parole period of 13 years 6 months and a balance of the term of the sentence of 4 years 6 months. The sentence will date from 10 April 2011. The offender will be eligible for release on parole upon the expiration of the non-parole period on 9 October 2024.
Catchwords:	CRIMINAL LAW - sentence - murder - intention to kill - provocation rejected - plea of guilty - favourable subjective case
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Sentence
Parties:	Regina Peter Joseph Kelly
Representation
- Counsel:	Counsel: Mr L Lungo (Crown) Mr P Givorshner (Offender)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions Blair Criminal Lawyers
File number(s):	2011/117003
Publication Restriction:

JUDGMENT

1. HIS HONOUR: Peter Joseph Kelly is to be sentenced for the murder of Maria ("Lou") Devrell at Tamworth on 28 March 2011.

Victim impact

2. When the Crown and defence cases on sentence were presented on 10 August last, Ms Amy Devrell, the daughter of the deceased, bravely read a prepared victim impact statement. The grief and distress that she and her father have suffered through the loss of a person who was described as "a beautiful woman" who "could have brightened anyone's day" is almost unfathomable. At the outset of these sentencing remarks I want to acknowledge that suffering and again extend my deepest sympathy. I also trust that Ms Devrell will not lose hope and will fulfil the faith that her mother had that she would realise her full potential.

Penalty

3. Murder is an offence for which the prescribed maximum penalty is imprisonment for life. There is also prescribed a standard non-parole period of 20 years. Both the maximum penalty and the standard non-parole periods are legislative guideposts that I must be mindful of in determining the appropriate sentence after having taken into account all factors that are relevant to the sentence.

Facts

4. The offender entered a plea of guilty in the Local Court on 21 September 2011 and has adhered to it in this Court.

5. The circumstances relating to the offence are disclosed in an agreed statement of facts from which, largely, I have derived the following.

6. The offender was a financial advisor living on the Central Coast. He had known the husband of the deceased, Mr David Devrell, for about 25 years. In 1999 Mr Devrell won $5 million in Oz Lotto. He sought financial advice from a number of people before finally choosing the offender to take over management of his financial affairs.

7. Mr and Mrs Devrell moved from the Central Coast to Tamworth. The offender travelled to Tamworth about every three months in order to discuss with them their financial affairs. A situation emerged in which they were spending money more quickly than it was being allocated to them by the offender. He seems to have had the attitude that they were being wasteful.

8. An agreement was reached whereby the offender reduced the amount of spending money he was allocating but their spending continued to exceed their allowance. As a result he persuaded them to give him power of attorney so that he could operate their accounts. This was designed to give him greater control over the management of their money.

9. The offender and Mr Devrell planned to go on a four day camping and hunting trip to a property at Watsons Creek, near Bendemeer, on 28 March 2011. The offender left his home on the Central Coast and proceeded towards the property but he detoured to the Devrells' home in Tamworth as he was uncertain of the directions to the property. He arrived at the home at about 1.50pm.

10. Mr Devrell was not home; he had already left for Watsons Creek. Mrs Devrell took the opportunity to engage the offender in a conversation concerning her wish to have more money. An argument ensued. She became angry and pushed him over. He got up and pushed her back, causing her to fall over.

11. He went outside. He said that he was furious and "seeing crimson". He took a heavy rubber mallet from his vehicle and wrapped it in cling wrap because he "did not want any blood sticking to the mallet". He went back inside the house and approached Mrs Devrell from behind. She was sitting at a table. He hit her on the head with the mallet. He subsequently said that his intention was to cause her to "lose all memory of the argument we just had".

12. Mrs Devrell slumped forward but then straightened up. The offender struck her again on the head with the mallet. He subsequently said that his intention at this point was to knock her unconscious. Mrs Devrell turned to speak to him so he pulled her backwards onto the floor, clamping his hand on her mouth and nose whilst hitting her a further two times on the head with the mallet. He continued to hold his hand over her mouth and nose until she was quiet.

13. The offender noticed Mrs Devrell's purse sitting on the kitchen bench. He took it to make it appear that the incident had been a robbery that had gone wrong.

14. He left the home and proceeded to join Mr Devrell at the Watsons Creek property. On the way he threw from his moving vehicle the clothing he had been wearing as well as the mallet and the deceased's purse. He had removed the cash from the purse and secreted it.

15. Ms Amy Devrell arrived home with friends at about 7.00pm. She discovered her mother's body lying on the living room floor. She was on her side with one arm raised with her hand near her face. There were significant injuries to the back of her head and lacerations to her face. There was a large amount of blood on the floor around her head.

16. Ms Devrell screamed and collapsed. She called the ambulance service and told the operator what she had found. A friend took the phone from her and received instructions from the operator about performing CPR. He continued with CPR until ambulance officers arrived and determined that Mrs Devrell was in fact deceased. Police were summoned.

17. An autopsy was conducted on 30 March 2011. The direct cause of death was found to be blunt force injuries to the head and asphyxiation. Three main groups of injuries were noted:

1.Two complex lacerations to the back of the head without underlying skull fractures, consistent with multiple blows to the head with a blunt object.

2.Linear abrasions around the nose and bruising to the lips, consistent with applied pressure to the nose and mouth causing asphyxiation.

3.Linear abrasions on the arms and back of the shoulders, consistent with restraint.

18. At least six separate areas of ill-defined bruising to the scalp were also noted.

19. There was also a fracture to the 4th and 5th cervical vertebrae associated with bruising to the anterior soft tissue.

20. A neuropathological examination of the brain revealed, amongst other things, that the deceased had sustained a traumatic brain injury.

21. It is worth quoting from the autopsy report in relation to the two "complex lacerations to the back of the head":

There were two closely positioned full thickness scalp lacerations at the back of the head. One of the injuries (upper) was larger and stellate-shaped with loose edges which were detached from the underlying intact skull.

22. The photograph of the larger laceration (photograph 30 in Exhibit F) demonstrates the severity of this injury.

23. A police investigation commenced almost immediately. At about 3.30am on 29 March 2011 detectives attended the Watsons Creek property and spoke with the offender and Mr Devrell. The offender did not tell them that he had been at the Devrell home the day before. Mr Devrell accompanied the officers back to Tamworth while the offender remained for a time at the property.

24. Police obtained a statement from the offender during the afternoon of 29 March. On this occasion he revealed that he had been at the Devrell home at around 2.00pm the previous day. He said that she answered the front door and he spoke with her for a short time before leaving.

25. The following day the offender was formally interviewed for just under three hours. He outlined his relationship with the Devrells; his management of their money and superannuation; his frequent visits to their home; and the context and circumstances of the shooting trip to Watsons Creek he had planned with Mr Devrell. He told police about how when he had attended the home on 28 March he had gone with Mrs Devrell to the kitchen where they had a conversation about a bill she had received. He said that he asked to use the toilet and was permitted to use that which was in the en-suite bathroom to the main bedroom. He said that he noticed nothing unusual and he left the house after using the toilet. He did not see Mrs Devrell as he left. He said that he had been inside the house for about ten minutes.

26. Police told the offender that they were investigating a murder and that he was a suspect. He agreed to provide a DNA sample and his vehicle was seized for forensic examination. A rolled-up bundle of money was found hidden under a cap on the rear near side suspension post. This was the money the offender had taken from the deceased's purse. Analysis of blood found in the vehicle revealed that it was from the deceased.

27. The offender left Tamworth on the morning of 31 March 2011 in a hire car. Around 9.00pm that night police found the offender in the hire car at a lookout at Patonga with the engine running and exhaust fumes being pumped into the interior via a hose. He was barely conscious and was taken to hospital by ambulance. It was established that he had consumed a quantity of tablets and alcohol.

28. The offender was arrested at his home at Umina Beach on 10 April 2011. He was cautioned and taken to Gosford police station. He declined to answer police questions after receiving legal advice. He was charged and has been in custody since.

29. On 9 September 2011 (prior to the plea of guilty) the offender, through his counsel, provided police with information regarding the weapon used to kill Mrs Devrell and its whereabouts. He said he had used a rubber mallet to hit her on the head. He also disclosed that he had taken her purse and money. Directions were provided as to where the mallet, purse and his blood stained clothing had been thrown from his vehicle. Police recovered the mallet and the purse but not the clothing.

30. The mallet was 385mm long; the diameter of the head was 135mm and its total weight was 1.3kg.

31. On 6 October 2011 (subsequent to the plea of guilty) the offender signed a prepared statement admitting to the killing of the deceased and the taking of her purse in order to make it look like "a robbery gone wrong". On 31 October 2011 he took part in a lengthy interview in which he expanded upon the statement.

32. The statement of 6 October 2011 and a transcript of the interview of 31 October 2011 were tendered before me without objection.

33. The statement of 6 October 2011 includes that there was a discussion with the deceased about her wish to be allocated more money and she was also complaining of certain family matters. He said that he thought "this tipped me over the edge. I'm sick of hearing her complaining and blaming everyone in the world for her problems". He said the deceased became increasingly angry with him and pushed him over. He was shocked and instinctively got up and pushed her over. He then hurried out of the house. He was "seeing crimson" and "was furious". He said, "All I could think of was losing everything that I have worked for all my life". He was asked about this in his evidence at the sentence hearing and he said that he did not know what that meant; he did not know what he was thinking when he said that; and that it was not true.

34. The statement continues by saying that he said he stood beside the vehicle for a couple of minutes thinking what to do next. He saw guns, axes and the mallet in the car. He chose the mallet. He said, "I then formed the intention to re-enter the house and to strike Lou with the mallet". The mallet was chosen because he "knew the guns or axes would kill her" or "would have done too much damage". He wrapped the mallet with glad wrap which was sitting loose in the back of the car in order to avoid blood sticking to it.

35. He then recounted his assault upon the deceased. He said "what I intended was that the blow to her head would cause her to lose all memory of the argument that we had just had. I thought that when she awoke it would be like starting afresh and that we could discuss the matter rationally". Of course, after he had struck her he did not wait around for her to wake up.

36. The statement then sets out the events in the house as they are summarised in the agreed facts but some further detail appears in relation to the continuation of the assault when the deceased was on the floor. He said "I then pulled her backwards from a seated position to a position where she was lying on the floor on her back. ... I held my left hand firmly over her mouth and nose and with the rubber mallet struck her to the rear of the head a couple more times whilst holding the mallet in my right hand".

37. Further details of the offender's account of the incident were provided in the interview of 31 October 2011. He said that he spoke to Mrs Devrell about the prospect of the money running out and that she said that he would have to provide her with spending money himself. He said "it wasn't my role to give them my money. She was threatening my family's lifestyle. ... How dare she" (Q. 64). He said, "I was ropeable" (Q. 65).

38. He was asked about his reasons for wrapping the mallet in cling wrap. He said "It'd be pretty clear that, if there was matter left on the mallet, and it was my mallet, it's pretty bloody obvious that it would be, it would implicate me. I just didn't want any apparent connection" (Q. 175). This tends to indicate clear and deliberate thinking on the offender's behalf.

39. In relation to the asphyxiation, the offender said that "she was struggling, kicking a bit. I kept my hand over her mouth, firmly over her mouth. And with the mallet, I struck her on the back of the head again, I think another two times. And then she stopped struggling, and she went quiet" (Q. 118). He said he had been told by his lawyer that the pathology evidence was that he must have held his hand over her mouth for a minute, at least. He could not recall how long it was but accepted that it must have been a minute. He said "she was kicking ... throwing the left arm around a bit, trying to, I suppose push me away with it. Kicking, and wriggling like that" (Q. 200-202).

40. As to how he was feeling he said, "I was just so furious with the woman" and "I was just incensed; I was livid" (Q. 169). "I was in a rage" (Q. 547). However, he considered that he was not thinking logically or rationally, "Because I wouldn't have gone back into the house if I was" (Q. 170).

41. When he left the house he knew that Mrs Devrell was bleeding and was unconscious (Q. 254-255). There was blood on the floor around her. Her scalp injury was bleeding. There was blood on her face. This is how he got blood on his shoes and jeans (Q. 304-305).

42. In the first of two psychiatric reports by Dr Stephen Allnutt there is an account of the offender having said that the deceased demanded money from him but he told her that he was not working. She responded "Well I'll take the money from your wife". He told Dr Allnutt that when he heard this he felt "livid"; "when he heard her speak about his wife in the manner she did he told her to get fucked". He is also reported to have said "he walked outside the house; he could not recall his thoughts; he felt furious ... he thought he was tired of taking the abuse from her; he was angry that she expected he and his wife to pay for her gambling; he felt like he wanted to hit her; he wanted to give her a 'hiding'; he felt 'over it'".

43. In Dr Allnutt's second report the offender is quoted as having said "things escalated where he lost control of his senses - there was much yelling; he said that if they ran out of money he would have to pay for her gambling, then she said she would make his wife pay; this was the last straw". It is notable that there was no mention in anything the offender had said to the police of the deceased making reference to his wife.

44. I have mentioned that the offender gave evidence at the sentence hearing. He said that he had told Dr Allnutt the truth and that his reports contained an accurate account of what he had said.

45. He acknowledged in his evidence in chief that he had said in the past, albeit sometime after the incident, that he did not intend to kill the deceased. He said, with what seemed at the time to be candour, that he could not say with certainty that he did not intend to kill; but he had no recollection of ever having that intent.

46. As to wrapping the mallet in cling wrap, he said that he had that for the camping trip and it was for wrapping left over food so that ants would not get in to it. He said he was not sure what he was thinking at the time of wrapping the mallet; he felt that he did it so as to avoid any biological matter getting on to it. He acknowledged that this indicated that he intended to strike Mrs Devrell with sufficient force that it might get such matter on it. He then insisted that "I can say with certainty at the time I wasn't intending to kill her. If I was sir I would have picked up one of the other more lethal items in the car". This is in contrast to the apparent concession he had made earlier about not being able to say with certainty that he did not have an intention to kill.

Seriousness of the offence

47. Despite the offender's claim that he did not intend to kill, I am satisfied beyond reasonable doubt that he did. I do not regard his account of what he was thinking as having any credibility.

48. I do not accept as credible his claim that his choice of a heavy mallet, wrapped in cling wrap so as to avoid biological matter adhering to it, instead of the other options of an axe or a gun, supported his claim that he did not intend to kill. The mallet was capable of being used with lethal effect with less noise and mess.

49. It was submitted that the absence of skull fractures indicated that the offender was not using maximum force when striking the deceased with the mallet and that this militated against a finding that he intended to kill. That argument might have had merit if the sole cause of death was blunt force trauma. But the offender killed by disablement with the mallet blows and then suffocated the deceased by holding his hand over her mouth and nose until she died.

50. I also find to be incredible the offender's claims that he thought Mrs Devrell was simply unconscious when he left her; he put her in the recovery position; and that he expected she would receive medical attention when her daughter arrived home. He had struck her four times with a heavy mallet which resulted in blood being on and about her head to the extent that it got on his hands, clothing and shoes. Putting her in a recovery position was not going to help her when she was bleeding from head wounds to that extent. True it is that when Ms Devrell ultimately arrived home she found her mother lying on her side. But the offender explained to the police in the 31 October 2011 interview that her head was turned to the side when he held one hand over her mouth and struck her with the mallet to the back of the head (Q. 127 - 138).

51. The most revealing admission, indicative of an intention to kill, was that she was "kicking", "wriggling" and "throwing the left arm around a bit, trying to ... push me away with it" while he held his hand firmly over her mouth and struck her twice in the back of the head with the mallet until she stopped struggling and went quiet (Q. 118; 200-202).

52. The claim that he made the scene look like "a robbery gone wrong" is indicative of clear thinking on his part and a knowledge that she would not survive and be able to nominate him as the assailant.

53. Another matter that raises doubt about the offender's credibility generally is that he claimed to Dr Allnutt that the deceased's demand that the offender's wife pay for her living expenses was a significant factor in making him "livid". But that is not what he told the police in any of the versions provided to them.

54. Often it is the case that an intention to kill, as opposed to an intention to inflict grievous bodily harm, renders an offence of murder more serious. The authorities on the subject recognise, however, that this is not always so. In this case, even if I was not satisfied that there was an intention to kill, I do not believe that the seriousness of the offence would have been significantly less. Counsel for the offender conceded as much in the course of his submissions.

55. I accept that there is no evidence that the offender harboured an intention to kill the deceased prior to the time he arrived at her home. The killing is not, however, something that occurred in the heat of the moment. After the argument had ended with the offender pushing the deceased to the floor, he walked outside to his car and, it would seem, stewed over whether and how to vent his anger further. He then chose his weapon and took the care to wrap it in cling wrap in an attempt to avoid evidence that would incriminate him being in his possession after the event. This tends to indicate a degree of cold and calculating deliberation.

56. It was submitted on behalf of the offender that I should find that the seriousness of the offence is mitigated by the fact that it was committed under provocation. I am not satisfied that it is more probable than not that he was provoked to the point where he experienced a loss of self-control. My review of the all of the evidence leads me to conclude that the offender was driven by the argument with the deceased to become angry, or as he said, "livid", "ropeable" or "furious". I cannot detect a loss of self-control, even with it being acknowledged that the offender acted out of character and had no history of violence. The aspects of his conduct to which I have referred which indicate clear and deliberate thinking and forethought are inconsistent with the claimed loss of self-control.

57. I am satisfied that this offence is one of considerable objective gravity.

58. Before departing from the objective circumstances of the offence I must make this observation. The facts which have been agreed between the prosecution and the defence have largely drawn upon the offender's version. That is understandable as there are no witnesses available to contradict it.

59. There are quite a number of aspects of the offender's account which defy logic and commonsense. For example, how could he have left a woman who was lying on the ground bleeding heavily from head wounds that he had inflicted thinking that she was simply unconscious and would recover with no memory of the argument that he claimed had occurred? Why did the deceased's supposed demand that he, or his wife, should pay for her lifestyle make him angry and think that he might "lose everything" that he had worked for" and that "she was threatening [his] family's lifestyle" when the deceased was in no position to enforce such a demand?

60. I have been left with the distinct impression that the full truth behind the killing of Mrs Devrell has not been told. I cannot, however, sentence upon speculation as to what the true story might be and so I must assess the sentence based only upon the evidence that has been placed before me.

Subjective features

61. Evidence concerning the offender's personal circumstances comprised criminal and custodial history printouts, the two reports of Dr Allnutt to which I have already referred, and numerous testimonials. In addition there was the oral testimony of the offender's son.

62. The offender was born in May 1957. He was 53 years old at the time of the offence.

63. He was the younger of his adoptive parents' two children and grew up in a supportive family environment. His childhood was unremarkable, although he told Dr Allnutt that he had been bullied at school. His mother passed away in 1982 and his father in 2000.

64. The offender appears to have led an industrious and family oriented life prior to the offence. He has been married for 25 years. His wife is a registered nurse and prior to the offender's incarceration the couple lived together at Umina. They have two adult sons; the eldest is a 22-year-old physiotherapist and the youngest is aged 20 and has recently commenced training at the Royal Military College, Duntroon.

65. The offender's wife and two sons each provided testimonials. Mrs Kelly stated that her marriage to the offender had been a happy one. All of them attested to the offender's dedication to his family and to the strong support he has given his sons. The eldest son also gave evidence at the sentence hearing that the offender was a "very calm and collected" sort of person. He said that conflict within the family was dealt with by discussion and not violence.

66. There are references in the testimonials to the offender being a non-violent person and most of the authors expressed shock and disbelief at his commission of this offence. Mrs Kelly, like many others, described the offence as completely out of character. She said, "I still cannot understand what may have led him to committing this crime."

67. Until his incarceration, the offender had spent his career working in the finance sector. He was a branch manager with a credit union before moving to a large fund manager. In 1998 he started his own business as a financial planner. Many of the testimonials also refer to the offender being an active member of his local community. He has volunteered his time with various organisations, including with his sons' junior sports teams and with motor clubs.

68. Dr Allnutt indicates that the offender has had no further thoughts of suiciding after the attempt on 31 March 2011 . He has no history of drug or alcohol abuse. He shows signs of stress referrable to the offence and his incarceration, and the considerable toll these have taken on his family and marriage. Dr Allnutt suggests that the offender could be diagnosed with obsessive-compulsive disorder but otherwise does not suffer from any psychiatric illness. He said of the offender that he "perceived the deceased and her husband as being wasteful people and would have been vulnerable to being irritated by them, by their value system and world view which would have conflicted with his".

69. Dr Allnutt recorded that the offender was shocked by what he had done. He recognised that his actions had "devastated" the deceased's family. He told Dr Allnutt, "I'm horrified by the fact that I've caused someone to die." Authors of testimonials have stated that he has expressed remorse for the offence.

Specific mitigating factors

70. The offender entered a plea of guilty to murder in the Local Court on 21 September 2011. The Crown conceded in written submissions that a reduction of sentence of 25 per cent was appropriate for the utilitarian value of the plea. I accept that concession.

71. Consideration must be given to the co-operation by the offender with the police by way of giving directions as to where the mallet and the deceased's purse could be found; providing the statement of 6 October 2011 and agreeing to be interviewed on 31 October 2011. I have found that he was not completely frank with the police in that he denied an intention to kill the deceased but aside from that he should get credit for such assistance. It would seem that without his admissions the prosecution case would have been a circumstantial one, albeit a powerful one given, for example, that the deceased's blood was found in the offender's car.

72. The offender has no prior criminal record and I accept that he was a person of good character. His counsel, Mr Givorshner, submitted that such a finding was often based solely on an absence of prior convictions but in this case there was positive evidence of it. I accept that the commission of this offence was an uncharacteristic aberration in the otherwise blameless life of a good man.

73. Mr Givorshner submitted that the offender's suicide attempt was "pretty good evidence... of contrition" but he acknowledged that I may find this was driven rather by a realisation of the ramifications of the offence for his family. I am satisfied that the offender's statement to the police at the end of the 31 October 2011 interview and his later statements to Dr Allnutt and his referees demonstrate genuine remorse on his part regardless of what he has said about his intention.

74. In light of the offender's remorse and his prior good character, I am also satisfied that the offender is unlikely to re-offend and has good prospects of rehabilitation.

Special Circumstances

75. It was submitted that I should find there are special circumstances warranting a reduction in the proportion of the sentence represented by the non-parole period. In his written submissions Mr Givorshner referred to the "circumstances surrounding the commission of the offence, the early plea of guilty, [and] the subjective case of the offender" as appropriate to afford his client a degree of leniency. These are matters I have already taken into account when determining the total term of the sentence. It would be double counting to take them into account again to reduce the non-parole period.

76. It was also put that this will be the offender's first time in prison and reference was made to the likely age of the offender when he would eligible for release on parole. It was submitted, "the older you are, the harder the readjustment is going to be." I do not believe such a generalisation is valid. Readjustment to life in the community following release from a lengthy term of imprisonment is difficult for just about everyone. I am satisfied that the potential period of parole which will be available by adoption of the usual statutory proportions is sufficient in this case.

Sentence

77. Convicted

78. Sentenced to imprisonment comprising a non-parole period of 13 years 6 months and a balance of the term of the sentence of 4 years 6 months. The sentence will date from 10 April 2011. The offender will be eligible for release on parole upon the expiration of the non-parole period on 9 October 2024.

79. That is a total sentence of 18 years. If not for the offender's plea of guilty it would have been a sentence of 24 years.

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