AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 5 September 2014

R v Ethan McKellar; R v Bevan McKellar

[2014] NSWSC 1243

Assault & violenceHomicideTheft & property
CRIMINAL LAW SENTENCE MURDER WOUNDING WITH INTENT ARMED ASSAULT WITH INTENT TO ROB IMPAIRED MENTAL FUNCTIONING

Citation: R v Ethan McKellar; R v Bevan McKellar [2014] NSWSC 1243
Court: Supreme Court of New South Wales
Date: 5 September 2014
Judge(s): R A Hulme J

Background

In May 2011, four men travelled together to a residential address in Ashmont, Wagga Wagga, where a 55-year-old man sold small quantities of marijuana. A prior dispute over the supply had left ill-feeling between the deceased and one of the offenders. The Crown established that the group attended the address intending to rob the deceased, and that at least two weapons, a machete and a knife, were brought to the scene.

Violence erupted almost immediately after the group arrived. One offender punched the deceased to the ground, the deceased's teenage son was drawn into the confrontation, and the deceased was chased and surrounded. Ethan McKellar stabbed the deceased four times, inflicting a fatal wound to the chest, and also stabbed the son twice, causing wounds that required urgent surgery and could have been fatal without emergency treatment.

A jury convicted Ethan McKellar and Bevan McKellar of murder, wounding with intent to cause grievous bodily harm, and armed assault with intent to rob. The other two co-offenders were convicted of manslaughter and related offences; their sentencing was dealt with separately.

  • Whether Bevan McKellar bore criminal responsibility for the murder of the deceased and the wounding of the son, given that Ethan McKellar physically inflicted the stab wounds
  • The appropriate sentences for each offender, having regard to the gravity of the offences, each offender's personal circumstances, impaired mental functioning, background of social disadvantage, and the applicable principles of general and specific deterrence
  • Whether non-standard non-parole periods were warranted, and how the sentences for the three offences should be structured and partially accumulated

Decision

Hulme J was satisfied beyond reasonable doubt that Ethan McKellar was the person who inflicted the stab wounds on both victims. The identification relied primarily on clothing descriptions and the logical deduction that followed from undisputed evidence about who was wearing what. Ethan McKellar was held directly responsible for both the murder and the wounding.

Bevan McKellar's liability for both offences was founded on the doctrine of joint criminal enterprise. As a participant in the enterprise to rob and assault the deceased, Bevan McKellar contemplated the possibility that a co-participant might intentionally inflict grievous bodily harm. That contemplation extended to the intervention of a third party (the son), against whom a participant might also inflict serious injury. These findings brought both offences within Bevan's criminal responsibility notwithstanding that he did not wield the knife.

On sentence, Hulme J found that the impaired mental functioning of each offender reduced their moral culpability below the usual level for offences of this kind. General deterrence was assessed as being of limited significance in light of those impairments, while the need for specific deterrence was characterised as moderate. Each offender's background of social disadvantage was taken into account, as was the absence of any statutory mitigating factors such as remorse or a plea of guilty. No finding was made that the offending fell into the worst category.

The sentences were partially accumulated. The murder sentence, carrying the greatest weight, was structured with a non-parole period of 14 years and a balance of term of 6 years, yielding an aggregate sentence of 24 years with a non-parole period of 18 years for each offender. Bevan McKellar's sentences ran from a slightly later commencement date, reflecting his later date of arrest and custody.

Orders Made

Ethan McKellar:
- Count 1, Armed assault with intent to rob: non-parole period of 3 years 9 months, balance of term 1 year 3 months, commencing 3 May 2011, expiring 2 May 2016
- Count 2, Wounding with intent to cause grievous bodily harm: non-parole period of 6 years, balance of term 2 years, commencing 3 May 2012, expiring 2 May 2020
- Count 3, Murder: non-parole period of 14 years, balance of term 6 years, commencing 3 May 2015, expiring 2 May 2035; eligible for parole 2 May 2029
- Total: 24 years, non-parole period of 18 years

Bevan McKellar:
- Count 1, Armed assault with intent to rob: non-parole period of 3 years 9 months, balance of term 1 year 3 months, commencing 3 August 2011, expiring 2 August 2016
- Count 2, Wounding with intent to cause grievous bodily harm: non-parole period of 6 years, balance of term 2 years, commencing 3 August 2012, expiring 2 August 2020
- Count 3, Murder: non-parole period of 14 years, balance of term 6 years, commencing 3 August 2015, expiring 2 August 2035; eligible for parole 2 August 2029
- Total: 24 years, non-parole period of 18 years

Key Takeaways

  • Liability for murder and wounding under joint criminal enterprise does not require that the offender personally inflict the fatal or injurious blow; it is sufficient that the offender was a participant in the enterprise and contemplated the possibility that a co-participant might intentionally cause grievous bodily harm.

  • Impaired mental functioning, where established, can reduce an offender's moral culpability below the ordinary level for a given offence and correspondingly diminish the weight to be given to general deterrence as a sentencing consideration.

  • A background of social disadvantage is a recognised factor in the sentencing calculus, capable of bearing on the assessment of moral culpability even where no statutory mitigating factors are present.

  • Partial accumulation of sentences across related offences arising from the same criminal episode is an available and here utilised mechanism to reflect the totality of criminality without producing a crushing sentence.

  • The Supreme Court structured the non-parole period at approximately three-quarters of the total term, declining to depart from the standard ratio despite submissions that a longer parole period might better support rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): offences of murder (life imprisonment maximum), wounding with intent to cause grievous bodily harm (25 years maximum), and armed assault with intent to rob (20 years maximum)

Cases: No cases were cited in the portions of the judgment provided.