Morrison v The Queen [2012] VSCA 222

2 On 14 February 2010, the appellant went to the St Kilda Festival, where he met Robert Chaffey, whom he did not previously know. The appellant and Chaffey drank cask wine throughout the day and into the early hours of 15 February 2010.

3 Chaffey was staying at the Gatwick Hotel. David Rodakis ('the deceased') lived at the Gatwick Hotel. Neither the appellant nor Mr Chaffey knew the deceased. At about 5 o'clock in the morning of 15 February 2010 surveillance film recorded the deceased returning to the hotel and proceeding to his room. The appellant and Chaffey followed him and as the deceased tried to enter his room, the appellant pulled him back and threw him to the floor. There ensued a vicious attack upon the deceased by both the appellant and Chaffey. The attack was captured on surveillance film, which also depicted the appellant drinking, swaying and being unsteady on his feet.

4 Chaffey stomped Mr Rodakis on the head and upper body and appeared to chop into his neck. The appellant pulled the deceased up from the floor and punched him to the face, causing him to fall back. The appellant stood over the deceased and Chaffey kicked and stomped him while the appellant punched him to the head. Chaffey kicked Rodakis a number of times in the head and then walked off. The appellant kicked the deceased two or three more times to the head. Chaffey returned and kicked the deceased again and the appellant started stomping on the deceased's head. Throughout the ordeal, the deceased did not appear to move. Chaffey kicked the deceased again and he and the appellant walked off. At 5.22 am the appellant returned to where the deceased lay. He had not moved. The appellant stared at him, then stomped on his head eight times.

5 The appellant and Chaffey went into the lobby of the hotel and Chaffey went to his room. He left it and then met the appellant again in the lobby but then returned again to his room. The appellant went to where the deceased lay on the ground. The appellant stomped on the deceased's head five times, walked away and returned and stomped on his head again. The appellant walked off a short distance, returned and stomped on the deceased's head four more times. He walked away, returned and stomped twice on the deceased's side. He then stepped over his body and stomped on his head again. The appellant walked away from the deceased for the last time at 5.31 am.

6 The prosecutor at the plea said that the motive for the attack upon the deceased was the mistaken belief on the part of the offenders that the deceased was a paedophile.

7 The deceased was admitted to hospital and died 13 days later from pneumonia. A doctor reported that the deceased had failed to show neurological improvement after sustaining the injuries to his head and she was of the opinion that he would have remained in a persistent vegetative state.

8 A post-mortem examination revealed the severity of the deceased's injuries. He suffered diffuse traumatic axonal injury, contusion and haemorrhaging, facial fractures, rib fractures, lumbar transverse process fractures, and haematoma of the liver.

9 The deceased was of slight build, weighing 50 kilograms and was 169 centimetres tall. At the time of his death he was 66 years' old. He had been an alcoholic for many years. He was said to be generous and docile by nature.

10 The appellant was arrested later on 15 February 2010. In a record of interview he said he had no memory of the events of that night and morning. He expressed remorse in the course of the record of interview.

11 The appellant is 51 years' old. He was one of eight children. His father was an alcoholic and the family led an itinerant life. The appellant left school at the age of 13 years and travelled around the country, busking and playing in bands. The appellant married and settled down, working as a labourer and forklift driver. The appellant has a 21 year old son by his marriage. The appellant's marriage ended in 2007 as a result of his excessive drinking. The appellant began drinking in his teens and regularly drank to excess.

12 A psychiatrist gave evidence at the plea. He said the appellant suffered from a very significant alcohol dependency and also from depression. Having viewed the surveillance film, the psychiatrist said the appellant's appearance was consistent with a person who had drunk the 14 litres of wine claimed by the appellant. He said that the appellant's judgement would have been impaired, he would have been less able to resist being influenced by others and his capacity to form intent would have been affected. The psychiatrist thought that the appellant was genuinely remorseful. The sentencing judge accepted that the appellant's remorse was 'genuine and profound'.

13 The appellant had a number of convictions for minor offences. None of his prior convictions were for offences of violence save that when he was 22 years' old he was fined $50 for an assault.

14 The sole ground of the appeal is that the head sentence and the minimum term are manifestly excessive.

15 A matter upon which counsel for the appellant placed considerable emphasis was the part that alcohol played in the commission of the crime. It was submitted that the appellant's moral culpability fell to be assessed in the light of his intoxication. Account was to be taken, so it was said, of the effect of the appellant's excessive alcohol consumption on his judgement and cognitive processes, including the formation of intent. It was pointed out that the offending was out of character generally and when the appellant was intoxicated.

16 The sentencing judge dismissed the appellant's intoxication as a mitigating factor, saying:

Certainly, you were intoxicated and your judgement no doubt clouded, and it may be that, sober, you would not have committed this assault, but your intoxication, while it may explain your conduct, does not excuse it or minimise it, nor does it reduce your moral culpability for the crime. I accept, however, that your alcohol consumption does not aggravate the offence in the sense that this is not a case of you being aware that if you became intoxicated, you were likely to be violent, but it does not mean the converse, where you had not previously been violent when drunk, but that should mitigate the circumstances of your offending.

17 The weight of authority supported the sentencing judge's refusal to acknowledge intoxication as a mitigating factor.[1] In this state, in R v Redenbach, the Court of Criminal Appeal said:

Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence.[2]

Like sentiments have been expressed in other cases in this state,[3] in South Australia,[4] Queensland,[5] Western Australia[6] and New South Wales.[7]

18 In a number of cases, however, it has been acknowledged that, in an exceptional case, intoxication may reduce culpability. For example, in R v Coleman Hunt J said:

The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character.[8]

19 While the possibility that intoxication may be a mitigating factor has been recognised, it has rarely been applied.

20 I think that the intoxication of an offender is a relevant circumstance and is capable in a particular case of informing factors which relate to an appropriate sentence. It may, for example, bear upon the existence and degree of remorse. In the present case, the psychiatrist described the appellant as shocked by his actions, which he saw depicted on the film made by the surveillance camera. A sober offender could not make a like claim. The circumstances in which the crime was committed and the appellant's reaction to it also affect the appellant's prospects of rehabilitation.[9] The sentencing judge was able to form the opinion that, with sobriety, the appellant's rehabilitation was 'achievable'. Further, I consider that the effect that the appellant's intoxicated state had upon his judgement and self-control moderates the need for denunciation by the Court.[10] The appellant has been an alcoholic for more than 30 years, but has no convictions for any serious crimes of violence and there was no suggestion that he was inclined to be violent when intoxicated. The appellant's wife and son stated in letters to the Court that the appellant was not violent or aggressive.[11] While knowledge of the effects of alcohol consumption and the part it often plays in acts of violence may be taken to be well known, the appellant's own experience would not have alerted him to the danger to which his drinking exposed others.

21 Although the attack upon the deceased was unprovoked, brutal and sustained, in my opinion it was appropriate in the particular circumstances of this case to take into account the effects of the appellant's intoxication which I have described as well as his plea of guilty. I consider that the sentence was manifestly excessive.

22 In re-sentencing the appellant a matter to be taken into account is the total effective sentence of 18 years' imprisonment with a minimum term of 14 years' imprisonment imposed on the co-offender, Chaffey. Although he did not persist in assaulting the victim for as long as did the appellant, Chaffey had a large number of prior convictions, including convictions for offences of violence.

23 I would allow the appeal and re-sentence the appellant to be imprisoned for a term of 18 years and I would fix a minimum term of 14 years' imprisonment before he is to be eligible for parole.

24 I agree with Buchanan JA that the appeal should be allowed and the sentence reduced as he proposes. This was a rare case where intoxication bore upon the offender's moral culpability and explained the presence of significant remorse.

25 Because of the widespread use of alcohol, the effects on a person who becomes intoxicated are well known. As was stated in the joint reasons of this Court in Hasan v The Queen[12] the circumstances must therefore be quite exceptional before intoxication at the time of offending can mitigate the offender's moral culpability. Save in very rare circumstances, an argument will not be countenanced that intoxication has mitigated the offence because the offender did not recognise that he might so behave. Where however the offender's long history of alcohol consumption has provided not the slightest indication that there was such a risk, the offender may discharge the heavy onus of showing that his offending conduct could not reasonably have been anticipated and was truly out of character.

[1] The relevant cases were collected and analysed in Hasan v R [2010] VSCA 352.

[2] (1991) 52 A Crim R 95, 99.

[3] R v Howell [2007] VSCA 119; (2007) 16 VR 349, 355 (Nettle JA); R v McRae [2008] VSCA 74, [15] (Vincent JA).

[4] R v Lane (1990) 48 A Crim R 161, 165.

[5] R v Rosenberger [1995] 1 QdR 677, 678; R v Dwyer [2008] QCA 117, [3]; R v Thomason [2011] QCA 9.

[6] R v De Jesus (1986) 20 A Crim R 402, 405.

[7] R v Sheather [2011] NSWSC 1239, [34].

[8] (1990) 47 A Crim R 306, 327. See also R v Fletcher-Jones (1994) 75 A Crim R 381, 387; R v Groom [1999] 2 VR 159, 164; R v Sewell and Walsh (1981) 54 A Crim R 204, 207; Stanford v R (2007) NSWCCA 73, [56]-[57].

[9] R v Dean-Willcocks [2012] NSWSC 107, [77], [112]-[113] (Garling J); Shaw v R [2012] VSCA 78, [62]-[63] (Williams AJA); Rysz v Police [2011] SASC 167; R v Bugmy [2011] NSWCS 357.

[10] Pato v R [2011] VSCA 223, [28]-[29] (Hansen JA).

[11] Cf R v Grimmett [2011] VSC 506, [32] (Weinberg JA).

[12] [2010] VSCA 352.