Crown v Accused

1 Trevor Whybrow, a jury convicted you of the murder of Barry Moffatt on 27 May 2018.

2 The jury necessarily rejected your arguments that, when you killed Moffatt, you lacked murderous intent and that you acted in lawful self-defence.

3 The maximum penalty for murder is life imprisonment.

4 Let me summarise the circumstances of your offending.

5 On 27 May 2018, Brian Tilley, your mother's partner, was celebrating his birthday. He invited a few friends to celebrate the occasion with him at his unit at 29 McKean Street, Mooroopna. The guests were your mother Rose Whybrow (whom, hereafter, I will refer to as Rose), Joyce Kennedy, Moffatt and you. Tilley, Rose and Moffatt all lived in separate units at 29 McKean Street.

6 It was around 2pm when you, Rose and Moffatt arrived at Tilley's unit. Kennedy arrived a couple of hours later. Throughout the afternoon Tilley, Moffatt and you were all drinking heavily - beer and spirits - and by the time Kennedy arrived, the three of you were intoxicated. But throughout the celebrations, everyone was on amicable terms.

7 Kennedy left before 8 o'clock. Not long after she left, you said you wanted to go home, but Rose persuaded you to have a rest at her unit nearby. She and Moffatt physically supported you as the four of you walked to her unit, which was a one-bedroom unit. Rose and Moffatt placed you on her bed fully clothed. Rose removed your shoes and then went outside with Moffatt where Tilley was waiting.

8 After a little while, Moffatt told Rose he was going to check on you, but he did not return. Rose went inside and found Moffatt lying on the bed next to you fully clothed. Both of you appeared to be asleep. Rose went back outside, re-joining Tilley.

9 Sometime later, she heard noise from inside. She walked into the living room where she saw Moffatt lying on his back near the heater and you standing over him, punching him continuously in the face. Moffatt's arms were down by his side, his eyes were closed, his face was covered in blood, and he was making gurgling noises.

10 As you continued to punch Moffatt in the face, you said to Rose "the fucking poofter[1] tried to rape me". You also said to Rose "Have you ever been raped?" to which she replied "No". You continued punching Moffatt in the face.

11 Tilley also came into the living room. He saw you punching Moffatt forcefully and continuously in the face with both fists. You told him that Moffatt had tried to rape you. Both Tilley and Rose urged you to stop punching Moffatt, which you eventually did.

12 How long the assault lasted is difficult to say. It was underway before Rose entered the living room. Under cross-examination by the defence, Rose agreed that the punching she saw may have lasted about 15 seconds, but it could have been longer.

13 Neither Rose nor Tilley could say how many punches you landed, but it was clearly a ferocious assault which caused multiple fractures to Moffatt's face and fractures in both your hands. In your recorded police interview, you estimated that you threw about 20 punches.

14 After you stopped punching Moffatt, Tilley helped you to drag him outside and the two of you laid him down on the ground outside Rose's flat. You said to call an ambulance. Tilley called 000 at approximately 8:29pm. You took the phone at one point during the conversation with the 000 operator and claimed that Moffatt had actually raped you. You were still angry and said to the operator that Moffatt "was fucked and if he wakes up he'll be even more fucked."

15 Your anger was still on display when police and paramedics arrived at approximately 9pm. You accused Moffatt of having tried to rape you.

16 The next morning in the course of the recorded police interview, as investigators questioned you more closely about what happened in the bedroom immediately prior to the assault, it became apparent that you were not sure what Moffatt had done to you in the bedroom, if anything. You maintained that he must have done something otherwise you would not have reacted the way you did. You noted that his own unit was close-by (Q&A 721) and it seems that you inferred from the fact that he had lain down on the bed with you, rather than go to his own unit, that he must have done so for the purposes of molesting you. You mentioned that you had been raped as a child (Q&A 510). You also said it was possible that you had pent up anger from that childhood rape and that it came out (Q&A 251).

17 You maintained throughout the recorded police interview that Moffatt was your friend and that it was never your intention to kill him or hurt him as much as you did.

18 After your recorded police interview, you were put into a cell with two undercover operatives who covertly recorded their conversation with you. Consistent with your recorded police interview, you maintained that Moffatt had tried to rape you when you were drunk, that you and Moffatt were friends and that you had not intended to kill him.

19 At your plea hearing, it was not disputed that you had been raped as a child and that this event left you with an unresolved post-traumatic stress disorder (PTSD), as diagnosed by psychologist Gina Cidoni, whose report was tendered by your counsel. But it was disputed by the prosecution that there was a causal link between your PTSD and your assault of Moffatt.

20 Having regard to your comment to your mother during the assault ('Have you ever been raped?'), your unchallenged evidence at trial that you were raped as a child and Ms Cidoni's finding (after formal testing) that at the time of your offending you still suffered from PTSD, I find on the balance of probabilities that a causal link existed between your PTSD and your violent reaction to what you thought Moffatt was trying to do to you. I consider that this somewhat reduces your moral culpability.[2]

21 There was also a dispute at your plea hearing as to whether you intended to kill Moffatt. Murderous intent, which, clearly, the jury found you possessed, is constituted either by an intention to kill or an intention to inflict really serious injury. The prosecution urged me to find that when you punched a defenceless Moffatt in the face repeatedly and forcefully that you intended to kill him. To make such a finding, I must be satisfied beyond reasonable doubt. I am not so satisfied. Moffatt was your longstanding friend. There was no evidence of any ill will between you. Your intoxication and PTSD are, in my view, likely to have clouded your judgement. You consistently and credibly maintained to investigators, both overt and covert, that you never intended to kill Moffatt. Consequently, I proceed on the basis, consistent with the jury's verdict, that you intended to inflict really serious injury on Moffatt, not death.

22 At your plea hearing, the prosecution read and tendered victim impact statements from two of Mr Moffatt's sisters.

23 Vickie Perham said that she and her brother were very close. She suffers from vivid nightmares about his violent death. She misses their special relationship, remembering him as someone who would always joke with her and cheer her up. She feels great sadness at the many significant family moments that her brother will not be a part of. She remembers him as a kind and generous man who was devoted to the family and says she believes his death will continue to affect her for the rest of her life.

24 Susan Duscher is shocked and pained that her brother was murdered by someone he (and she) knew. She had a strong relationship with her brother. She took on the difficult task of informing the family of what had happened to him, and she bore the brunt of their grief while also processing her own. She had to attend to her brother's financial and other affairs after his death and found this very distressing. She was disturbed by some of the media reporting of the case and found the trial process extremely stressful. She says the death of her brother has impacted her sleep and diminished her trust in others. She will miss her brother's humour and support.

25 Your offending cost Moffatt his life but he was not your only victim. No sentence I impose can undo what you have done.

26 All murders are offences of the utmost seriousness, but I am obliged by High Court authority[3] to determine where your offence falls on the spectrum of seriousness for murder. Whilst your actions were extremely violent - punching a defenceless man repeatedly, forcefully and fatally in the face - there was no premeditation and the assault probably lasted no more than 30 seconds.

27 Your moral culpability is reduced by the fact that, in your intoxicated state, you believed Moffatt was trying to rape you, and, as mentioned, I consider your violent outburst was connected to your PTSD from having been raped as a child.[4]

28 On the spectrum of seriousness for murder, I consider your offending to be a mid-range example of the offence, not a high-range example as submitted by the prosecution.

30 You were born on 6 October 1961 and are currently aged 58. At the time of the offending you were aged 56.

31 You were born in London and came to Australia with your parents when you were about four years old, settling initially in South Australia, then Victoria. You have one older sister, with whom you have had limited contact.

32 You led an itinerant lifestyle for some years after completing year 10. Your parents sold their home and your family began living in a caravan due to the seasonal nature of your parents' work. During this time, when you were aged 15, your family spent some time at the Sunshine Caravan Park where I accept, on the balance of probabilities, that you were anally raped by an adult male resident of the caravan park.

33 In the years following, you worked on farms and eventually purchased your own car and caravan, settling in the Geelong area.

34 You have consumed alcohol and cannabis since the age of 16.

35 At 21, you married your then partner Karen, with whom you have two daughters aged 36 and 34. I am told the marriage ended amicably after some 20 years and that you still have contact with your ex-wife and children.

37 You continued working in seasonal jobs until age 50, when you say you commenced a relationship with a woman in New South Wales who introduced you to methylamphetamine. You report that you lived together in Shell Harbour for some four years until the relationship ended, after which you say that you ceased using methylamphetamine.

38 You returned to Victoria to live with your mother and became involved with the Life Church, of which I will say more in a moment.

39 After living with your mother for a time, you secured you own public housing nearby and took up work as a labourer four days a week, with your last period of sustained employment being in 2018 just prior to your offence.

40 You suffered some ill health as a consequence of employment conditions and consumption of tobacco, which caused you to experience a collapsed lung several years ago. But it is not submitted that you have any health issues which would make prison more burdensome for you than an ordinary healthy prisoner, other than your PTSD.

41 You continue to have a close relationship with your mother who is in her mid-80s and you are distressed (as, no doubt, she is too) that she will probably not live to see you released from prison.

42 Steven Kingston, a welfare coordinator with the Life Church, gave character evidence at your trial. He said he has known you for six or seven years and found you to be a trustworthy person who got along well with others and was well respected. In his view, and in the view of other parishioners whom he knows, this offending was out of character. He said that you were an eager volunteer in the community shop run by the church, and devoted time to mowing lawns as needed and cooking meals for the homeless. He said there was one occasion when you presented at the community shop smelling of alcohol, that you were told that was unacceptable and left without causing any fuss. That was the only time during the six or seven years he has known you that there was ever a behavioural issue.

43 Matthew Briggs, a minister at Life Church also said in evidence at your trial that in the seven to eight years he has known you, you have never been known to act aggressively, and you have never done or said anything which made him or others feel unsafe. He described you as a quiet man who volunteered regularly for the church.

44 I was impressed by the evidence of both Mr Kingston and Mr Briggs, who have maintained contact with you since your incarceration. Your work as a volunteer for the Life Church over many years is to your great credit.

45 Let me now summarise what I consider are the mitigating factors in your case.

47 You believed Mr Moffatt was trying to sexually molest you.

49 Your moral culpability is somewhat reduced because of the causal link between your PTSD and your offending (Verdins 1).[5]

51 You have made a real contribution to the community over several years through your volunteer work at the Life Church.

52 You are now 58 years of age. You will probably spend most, if not the rest of your life, in jail.

53 Even though you ran a trial, I find, based on what you said to investigators, to the jury and to Ms Cidoni, that you are remorseful for having killed Moffatt. As previously mentioned, you did not intend to kill your friend.

54 As Ms Cidoni opined, your PTSD is likely to make prison more burdensome for you than an ordinary healthy prisoner (Verdins 5).[6]

57 I declare that you have served 708 days by way of presentence detention.

58 Your offence was a standard sentence offence, 25 years' imprisonment being the standard sentence for a mid-range example of the offence of murder, having regard only to objective considerations.[7] I have borne that in mind. I consider it appropriate to impose the sentence I have because of the mitigating circumstances mentioned above, especially the relevance of Verdins principles 1 and 5, your previous good character and your age. I consider that the minimum term, which is slightly greater than 70% of the head sentence, is warranted by the gravity of your offending.[8]

[1] An issue that was not raised by the parties is whether s 5(2)(daaa) of the Sentencing Act 1991 applies, that is, "whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated." I mention s 5(2)(daaa) for the sake of completeness. You indicated in the covert recording at p 45 that "I don't care if you're gay if [you] stay on [your] side of the fence". What you took exception to, based on your perception of what had occurred (which may have been mistaken) was not Moffatt being a homosexual but him attempting to have non-consensual sex with you. I infer from your remark to the covert operatives who shared a cell with you that you have nothing against homosexuals per se and consequently I am not satisfied beyond reasonable doubt that s 5(2) (daaa) has any application.

[2] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] ('Verdins').

[3] R v Kilic [2016] HCA 48; (2016) 259 CLR 256, 266 [19].

[4] The first psychological report of Gina Cidoni, dated 24 January 2020, said this:

"[55]. PTSD is characterised by anxiety symptoms, impulsivity, aggression, and activation. Chronic intermittent hyperarousal is characteristic of PTSD. The hyperarousal produces aggression when a sufferer is faced with triggers resulting in the fight-or-flight mode being activated.

[56]. This could explain Mr Whybrow's unprecedented behaviour on 27.05.18, where he for many years actively avoided thinking or experiencing his childhood abuse and where suddenly he woke to experiencing it.

[57]. The alcohol intoxication would have further impaired his judgment and made him disinhibited."

Ms Cidoni's supplementary report, dated 30 March 2020, said this:

"[11] ... when Mr Whybrow found himself re-experiencing his childhood trauma,

this most likely triggered flashbacks, memories of the assault, or bad feelings. He perceived a real threat of re-victimisation, and the fight or flight (in his case the fight) response was activated. This represents the causal link between his PTSD to the offending.

[5] Verdins, 276 [32]: "1. The [mental] condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective."

[6] Ibid "5. The existence of the [mental] condition at the date of sentencing ... may mean that a given sentence may weigh more heavily on the offender than it would on a person in normal health".

[7] Sentencing Act 1991 (Vic) ss 5A, 5B; Crimes Act 1958 (Vic) s 3(2).

[8] Sentencing Act 1991, s 11A.