Morrison v The Queen [2015] VSCA 249

2 The applicant was charged with one count of intentionally causing serious injury to Lochlan McCowan, and one count of the murder of Dylan McCowan, at Orbost on 22 February 2013. He pleaded guilty to the first charge of intentionally causing serious injury. On his trial, the jury convicted him of the charge of murder. Following a plea, the judge sentenced the applicant to a term of 12 months' imprisonment on charge 1, and a term of 19 years and six months' imprisonment on charge 2. He directed that six months of the sentence on charge 1 be served concurrently with the sentence on charge 2, so that the total effective sentence was 20 years' imprisonment. The judge fixed a non-parole period of 16 years and six months.

3 The offences had their genesis in an incident that occurred at the Commonwealth Hotel in Orbost on 17 November 2012, in which the applicant was assaulted. As a result of the incident, he sustained injuries, including shoulder pain and several grazes. A police officer who attended noted that the applicant appeared to be very emotional. The applicant believed that he had been unfairly discriminated against and abused by the publican, staff and others present, and that he had been unfairly dealt with by the police who arrested him.

4 Ethan McCowan was at the Commonwealth Hotel when the applicant was assaulted. Although he witnessed the event, he was not involved in it in any way. The applicant formed the view that a member of the McCowan family had been involved in the attack on him, and that his house keys had been stolen during that incident.

5 Three months later, at about 12.30 pm on 22 February 2013, Lochlan McCowan walked past the applicant's house. The applicant approached him and asked him whether he was Dylan's younger brother. Lochlan, who was then 18 years of age, said that he was. Thereupon, the applicant struck him to the left side of the face. As a result of the assault, Lochlan fell to the ground, and fractured his wrist, and suffered injuries to the side of his face and to a tooth. That incident formed charge 1 (intentionally causing serious injury).

6 After the incident, Lochlan sought assistance from Tiffany Millard, who was the partner of Dylan McCowan. Ms Millard took Lochlan to her home where she contacted Dylan and told him what had happened.

7 Dylan arrived home and attended to his brother. He consumed some alcohol, and then went to the applicant's house. As the judge stated in his sentencing remarks, Dylan was then '... angry with (the applicant) for the attack on his brother and he sought to have it out with (the applicant)'.[1]

8 When Dylan McCowan arrived at the applicant's home, he banged on his door. He was unarmed throughout the incident that followed. He was admitted to the house by the applicant's friend, Maurice Duggan. At an early stage in the incident that followed, the applicant armed himself with a knife. The applicant asked Dylan to leave the house but he refused.

9 The three men quickly moved outside where there was a struggle in the front yard. In the course of that struggle, the applicant received a slash type wound across the chest. Dylan was stabbed more than once during the confrontation, receiving wounds to his arm and back. The wound to the back penetrated his lung. Dylan turned to leave the premises with his back towards the applicant. At about that stage the applicant said words to the effect 'I'm going to kill you'. The applicant then came up behind Dylan, and plunged the knife into his upper left shoulder, causing a fatal deep penetrative wound. Dylan was assisted by neighbours who called an ambulance. The applicant returned to the house, washed the knife and concealed it in a pot on the back veranda. He then left the house, walked across the road, and kicked Dylan to the head forcefully with his bare foot. Those events formed charge 2 (murder).

10 Dylan was then driven to hospital by a neighbour. In the meantime, an ambulance was called for the applicant who was yelling and demanding help for his injury. When the ambulance attended him, the applicant was observed to be tachycardic.

11 The applicant was arrested. He participated in a record of interview on the next day, 23 February. After some early denials, he accepted that he had killed Dylan McCowan, but he claimed that he had done so in self-defence. At trial, the applicant accepted he was responsible for killing Dylan, but his counsel, in her final address, invited the jury to consider a verdict of defensive homicide.

12 The applicant, who is Aboriginal, was born in December 1983 in Adelaide. The applicant's father was violent to his mother, so that she left him when the applicant was about two years of age. The applicant, his mother and siblings then went to live in Marlo in far east Gippsland.

13 The applicant and his family were the only Aboriginal family in Marlo, and they were subjected to a lot of racism at that time. His mother commenced to drink a lot of alcohol. When the applicant was about nine years of age, his mother formed a relationship with the applicant's step-father, Des. The applicant's mother and step-father drank a lot of alcohol, and were frequently violent towards each other, which was witnessed by the applicant. Although the step-father was not physically abusive to the applicant, it would appear that he was emotionally abusive to him. When the applicant attended school, he was subjected to racist bullying there.

14 The applicant apparently did reasonably well at school, successfully completing Year 11. After leaving school he obtained employment landscaping and in a mill.

15 The applicant commenced using alcohol at the age of 14, and at an early stage he frequently indulged in the heavy consumption of alcohol. He also used cannabis in his early teens, and commenced using methamphetamines from the age of 17. The applicant's brother committed suicide in 2001. Following that event, the applicant was admitted to a psychiatric unit, and was diagnosed with a drug induced psychosis. He was commenced on anti-psychotic medication. At the time of the offence, he was having fortnightly Depo injections from the community health worker in Orbost. He continued to receive that medication while in custody.

16 The applicant has not worked since his brother's death. He has continued his substance abuse, which, in a recent report, Dr Carroll characterises as amounting to dependency on both alcohol and cannabis, together with the harmful use of stimulants.

17 In 2009, the applicant was subjected to a violent attack in his home. That incident appears to have occurred in the context of some pre-existing conflict with some local men following an incident that occurred some months previously.

18 The applicant was examined by Dr Andrew Carroll, a consultant forensic psychiatrist for the purposes of the plea. Dr Carroll noted the applicant's abandonment by his father at an early stage, the fact that he witnessed substantial prolonged domestic violence between his mother and his step-father, and emotional abuse by his step-father. He also noted the applicant's history of alcohol and substance abuse. Dr Carroll considered that there was no strong evidence that the applicant suffered from a schizophrenic illness. His psychotic symptoms in his late teens were consistent with a drug induced psychotic episode. The applicant suffered dysfunctional personality traits, and he was diagnosed with a borderline personality disorder, which was secondary to a combination of inherited temperamental factors and his developmental history of abandonment and exposure to childhood trauma. The applicant's problems had been compounded by his substance use disorders.

19 Dr Carroll considered that, at the time of the offence, the applicant's borderline personality disorder and his substance abuse disorders were active clinical problems. The applicant had reported being fearful for his safety in the months before the offence, largely as a result of the November 2012 incident, and also following the attacks on him in his home in 2009. At the time of the offence, the applicant's poor impulse control and emotional instability, secondary to his personality disorder, would have adversely affected his mental capacity. His personality disorder made him vulnerable to acute overarousal in the face of stress, and, as a result of that disorder, he had difficulty in controlling his emotional reactions. His propensity for anxiety and persecutory thinking would have been exacerbated by his persistent misuse of alcohol and cannabis.

20 Accordingly, Dr Carroll considered that the applicant's borderline personality disorder, together with his substance misuse, made a contribution to his offending. Dr Carroll noted that he was coping reasonably well with prison life. However, his personality disorder has left him vulnerable to profound mood swings, and prone to anxiety and depression. Thus, he was likely to cope poorly with the stress of prolonged imprisonment and estrangement from his family. Dr Carroll considered that imprisonment was likely to have an adverse effect on his mental health.

21 The applicant has remained on anti-psychotic medication while in custody. In addition, he was prescribed methadone to assist him with sleep, mood and depression issues. Since being remanded in custody, and while awaiting trial, the applicant participated in every course available to him, and he completed courses in food handling, mood management, stress management, and anger and conflict management. He worked as a billet for 17 months. His only visitor in prison has been a friend, Mr Neil McDougall, who has taken a pastoral care role in his life while he has been in custody. The applicant has not seen his 12 year old son since he has gone into custody, as the boy's mother is concerned about him seeing his father in a prison environment.

22 The applicant has some prior convictions, but on his plea the prosecution accepted that they were for low level offending for 'street offences', and that they all involved alcohol and/or drugs. The prosecutor contended that the offending on count 2 fell within the middle category of murder cases.

23 On the other hand, it was submitted on behalf of the applicant that the judge should characterise the offending as at the lower end of the range. Counsel submitted that the trial had been contested on the basis of self-defence, and that the applicant had not been seeking to be wholly acquitted on that basis, but had put to the jury that it was open to convict the applicant of the alternative charge of defensive homicide. It was submitted that the murder arose out of a violent confrontation between two men who were extremely angry with each other. Counsel also referred to the fact that the applicant had suffered physical injuries in the course of the struggle. It was submitted that the applicant's moral culpability was diminished due to the fact that his offending was contributed to by his borderline personality disorder, which had resulted, in part, from his disadvantaged and turbulent earlier years. The other mitigating factors relied on included the applicant's impaired mental functioning, and that prison would be more burdensome for him. Character references from his sister, and from Mr McDougall, were also tendered on the plea.

24 The judge, having recited the circumstances of the offence, stated that he was satisfied that the murder fitted into the 'middle range of seriousness'. He noted that, at the time that he was killed, Dylan McCowan presented no threat to the applicant, as he was leaving the applicant's property and walking to his car. By that stage, Dylan had already received a number of stab wounds. Although the applicant was angry, he was not out of control. After the incident, the applicant washed the knife and concealed it, then crossed the road and kicked Dylan McCowan in the head. After that, he only expressed concern for his own welfare.

25 The judge then recited details relating to the applicant's background, which have been set out above. The judge referred to the report of Dr Carroll, but considered that there was a 'slight air of unreality' to the aspects of the report which suggested that the applicant had a personality disorder which led him to react in an aberrant manner to matters that were not of significant provocation.

26 The judge noted that the applicant had told Dr Carroll that he had been afraid to leave his home, yet the applicant gratuitously attacked Lochlan McCowan, who was younger and smaller than him. The judge accepted that Dylan McCowan was reasonably angry when he attended at the applicant's home. He noted the injury sustained by the applicant in the course of the fight. His Honour also noted the verdict of the jury, which signified that it did not accept that the applicant might have been acting in self-defence. In respect of the contribution to the killing made by the applicant's personality disorder, the judge said the following:

It does not follow that your personality disorder is irrelevant, but that causal connection between it and the killing is at least tenuous. It may be that it got you in the position of the fight with the knife more readily than it otherwise might have done, but at the time of the killing, you did not believe that it was necessary to kill Mr McCowan in self-defence.

Your disorder entitles you to some reduction in your moral responsibility because of its underlying relationship to the offending. ...

I am satisfied that you are a candidate for both general and specific deterrence, but because of your underlying impairment to your functioning, those matters have to be mitigated. I am also satisfied that imprisonment will weigh more heavily upon you because of that feature, and because of a number of matters arising out of your disadvantaged background.[2]

27 The judge also accepted that the applicant had a greatly disadvantaged background, which his Honour would take into account.

28 The judge rejected the submission by counsel for the applicant that he should take into account the injury sustained by the applicant in the course of the struggle. The judge stated that, because the applicant introduced the knife and never lost possession of it, any injury he may have received in the struggle did not act in mitigation of sentence. The judge was satisfied that the applicant was remorseful for his actions, although he felt that that was predominantly because of self-pity. Nevertheless, he accepted that the applicant was genuinely sorry for the death of Dylan McCowan. The judge had some reservations about the applicant's prospects of rehabilitation, because he considered that the applicant still tended to blame others for the events in which he murdered Dylan McCowan.

29 The applicant's notice of application for leave to appeal against sentence contained four grounds, namely:

(1) The judge erred by finding that the applicant's offending fell in the middle range of seriousness for the offence of murder.

(2) The judge erred by not giving any weight in mitigation to the fact that the applicant went to the jury on the basis that it was open to find him guilty of defensive homicide.

(3) The judge erred by not giving any weight in mitigation to the fact that the applicant sustained a significant injury during the altercation with the deceased.

(4) The sentence imposed on charge 2 (murder) and the non-parole period fixed are each manifestly excessive.

30 Although written submissions were filed by the applicant in respect of those four grounds individually, on the hearing before us, counsel for the applicant did not seek to argue grounds 2 and 3 separately, but relied on them as particulars of the first and fourth grounds. Counsel argued grounds 1 and 4 together, on the basis that, giving appropriate weight to the applicant's mitigating circumstances, the applicant ought to have been sentenced on the basis that the case fell within the lower range of sentences.

31 Counsel accepted that the sentence, on count 2, would have been unremarkable in ordinary circumstances. However, counsel submitted that the mitigating circumstances of the applicant were so unusual that the sentence was manifestly excessive. Counsel submitted that there had been demonstrated to be a clear connection between the applicant's mental illness and the offence. In addition, there was modest provocation offered to the applicant by Dylan, by coming to the house, entering it, and refusing to leave. That conduct by the victim operated on the applicant's borderline personality disorder, thus making him fearful and anxious. It was in those circumstances that the applicant inflicted the fatal injury to the victim.

32 Counsel acknowledged that the judge did not accept Dr Carroll's analysis, insofar as it relied on the applicant being in a state of fear of a home invasion at the time of the killing. However, the applicant was highly aroused, and was someone who was prone to becoming irrational and subject to extreme anger and panic, because of his underlying disorder. It was submitted that that disorder affected the capacity of the applicant to regulate his emotions appropriately.

33 Counsel accepted that the judge, in his reasons for sentence, gave some weight to the applicant's disorder, because of its 'underlying relationship to the offending'.[3] However, it was submitted that the judge gave insufficient weight to the disorder, in that his Honour failed to properly take into account its effect on the manner in which the applicant responded to Dylan's intrusion into his home. It was also submitted that the judge failed to give any weight, as a mitigating circumstance, to the fact that the applicant was provoked into anger by the conduct of Dylan.

34 In response, counsel for the respondent submitted that the sentence was within range. The judge gave appropriate weight to the mitigating circumstances. His Honour noted the applicant's underlying disorder, and acknowledged that it entitled the applicant to some reduction in his moral responsibility because of the underlying relationship of that disorder to the offending. The judge accepted that, as a result of that disorder, the sentencing considerations of general deterrence and specific deterrence would be moderated. The judge also accepted that imprisonment would weigh more heavily upon the applicant because of his condition.

35 Counsel further pointed out that the offending in this case was serious, in that the applicant stabbed Dylan in the back while he was walking away from him. The seriousness of the offence was aggravated by the applicant's conduct immediately after it, in disposing of the knife, and then kicking Dylan in the head while he was on the ground fatally injured. Further, although the judge was satisfied that the applicant was to an extent remorseful, nevertheless he lacked insight, and still tended to blame others for his involvement in the offending. In those circumstances, it was submitted that the sentence imposed by the judge, in respect of count 2, was within range, and that the judge correctly characterised the offending as being in the middle range.

36 The submissions made on behalf of the applicant in respect of ground 1 and ground 4 overlapped. The central issue, ultimately, is whether, taking into account the relevant mitigating circumstances, and in particular the subjective factors operating on the applicant in relation to the offending, the sentence imposed on charge 2 was manifestly excessive.

37 In order to establish that ground, the applicant must demonstrate that the sentence imposed on him, for that offence, was 'wholly outside the range of sentencing options available' to the sentencing judge.[4] The determination of the appropriate sentence, in a particular case, is the result of the exercise of a judicial discretion. Judicial minds might reasonably differ as to the appropriate sentence which should be imposed in any case. Thus, it is not sufficient for the applicant to persuade this Court that, in the circumstances, it would have imposed a lower sentence than that determined by the trial judge. Rather, as I have stated, the sentence must be demonstrated to be wholly outside the range of sentences available to the trial judge. In other words, the sentence must be shown to be so excessive as to bespeak error in the exercise of the discretion, notwithstanding that no specific error can be identified from the reasons for sentence given by the judge.[5]

38 Counsel for the applicant was clearly correct to accept, as he did, that there was nothing remarkable about the sentence imposed on count 2, if not for the subjective mitigating circumstances relied on by the applicant. The circumstances in which the applicant fatally stabbed Dylan McCowan were serious. Dylan McCown was unarmed. The applicant had armed himself with a knife at an early stage. The applicant inflicted the fatal wound to Dylan by stabbing him in the back while Dylan was leaving the applicant's premises. By then, the occasion for any self-defence was over. Understandably, the jury was satisfied beyond reasonable doubt that, at that stage, the applicant did not believe that what he did was necessary to defend himself from death or really serious injury. Rather, it is clear that the applicant was acting out of anger. Further, the gravity of the offending was aggravated by the applicant's actions in disposing of the knife, and then kicking Dylan McCowan in the head while he lay fatally wounded on the ground. Indeed, the applicant told Dr Carroll that he acted in that way because he was then aware that Dylan was going to die, and he felt angry about the fact that that would result in him going to prison for a long time.

39 In those circumstances, the applicant displayed little concern for his victim. The judge did accept that subsequently the applicant has developed some remorse for the loss of life of Dylan McCowan, but nevertheless he still has limited insight into the fact that it was his offending that caused Dylan's death.

40 Without more, the circumstances to which I have just referred would well justify the sentence imposed by the trial judge in respect of charge number 2. The critical issue, on this application, is whether the mitigating factors relied on by the applicant are such that, notwithstanding the gravity of the offence, the sentence imposed on the applicant was manifestly excessive.

41 I readily accept that the mitigating circumstances relied on by the applicant are strong. Although the judge did not accept Dr Carroll's views, insofar as they are based on the applicant's account that he was fearful, and acted in self-defence, at the time that he killed Dylan McCowan, nevertheless the judge did accept that there was a causal connection between the applicant's underlying psychological disorder and the killing by him of Dylan McCowan. The judge accepted that the disorder had a relationship to the offending, as it played a part in how the applicant reacted to Dylan's visit, and how he perceived it. In particular, the judge accepted that it may have been that the applicant's disorder '... got you in the position of the fight with the knife more readily than it might otherwise have done'.[6] Thus, the judge properly recognised that the applicant's disorder entitled him to some reduction in his moral responsibility to the offence.[7]

42 In addition, the judge accepted that the applicant had a 'greatly disadvantaged background', particularly in his formative years.[8]

43 In his early formative years, the applicant was abandoned by his father, and he witnessed substantial and repeated domestic violence between his mother and step-father, in the context of heavy consumption of alcohol by them. He himself then embarked on heavy alcohol and substance abuse. As a young teenager, he was profoundly affected by the traumatic circumstances of the suicide of his elder brother, to whom he was close. It was in that context that the applicant was first diagnosed to suffer psychosis, for which he continued to be treated up to the time of the offence, and thereafter. It is understandable that, in that background, the applicant developed the disorder described by Dr Carroll.

44 In addition, as a young Aboriginal person living in isolated circumstances in a country town in eastern Victoria, the applicant was exposed to racist bullying as a child, and subsequently. Part of the grievance that he felt, arising from the incident at the Commonwealth Hotel in Orbost, arose from the ridicule and abuse to which he was subjected after he was arrested.

45 It is those circumstances which formed the background to, and played an important role in, the development by the applicant of his psychological disorder. The applicant's psychological condition, and his background, rendered him less capable of reacting appropriately, and in a measured manner, when Dylan McCowan attended at his premises in an angry state, and gained entry into them. On any view, by then, the applicant was in a high state of arousal during the events that followed, and which culminated in the fatal wound being inflicted on Dylan McCowan. While, as the jury found, the applicant was not acting in self-defence at the time he inflicted that fatal blow, nevertheless the incident at the home did not comprise a number of separate and discrete events. Rather, each event followed the other, commencing with Dylan McCowan's uninvited attendance in the applicant's home.[9] Thus, while the applicant did not inflict the fatal wound while acting in self-defence, nevertheless it occurred in the context of an event which commenced with a confrontation between two angry men in the applicant's home.

46 The role of an offender's disadvantaged background, such as that of the applicant, as a mitigating circumstance, is well recognised and accepted as a matter of proper sentencing principle.[10] That principle is not confined to Aboriginal offenders, but the law does recognise that the effects of profound deprivation and disadvantage, such as those suffered by the applicant in his younger years, do not diminish over time, and frequently play a role in serious offences committed by such persons. As the plurality stated in Bugmy v R:[11]

An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.[12]

47 In addition, the judge accepted, as a mitigating factor, that, because of the applicant's disorder, imprisonment would weigh more heavily upon him. In his report, Dr Carroll stated that the applicant's personality disorder left him vulnerable to profound mood swings. As a result of that disorder, he had very limited coping skills, and he would likely cope poorly with the stress of prolonged imprisonment and estrangement from his family. In addition, Dr Carroll considered that imprisonment would be likely to have an adverse effect on his mental health, especially in the early stages of adjusting after sentencing.

48 As an additional mitigating circumstance, the applicant was entitled to some credit for the fact that, in the end, his counsel invited the jury to consider a verdict of defensive homicide, thus acknowledging, at least to some extent, the applicant's criminal responsibility for the death of Dylan McCowan.[13]

49 The mitigating factors, to which I have just referred, are, as I stated, substantial. It is those factors that have given me some pause in determining whether the applicant has made out his contention that the sentence imposed on him, on count 2, is manifestly excessive. However, notwithstanding the cogency of those mitigating circumstances, and giving them their full weight, I am not persuaded that the sentence imposed by the judge was manifestly excessive. Certainly, I would accept that the sentence imposed was high, and perhaps higher than other judges might have imposed on the applicant. However, it is not so high as to be wholly outside the range of sentences available to the judge in the circumstances of the case, taking into account the circumstances of gravity to which I

earlier referred, and giving full weight to the applicant's mitigating factors. For those reasons, the applicant has not succeeded in establishing ground 4.

50 As I stated, the applicant did not make separate submissions in respect of ground 1. The characterisation of a particular offending as being in a 'lower range' or a 'medium range' is, with respect, not particularly informative. Rather, the critical question is whether, applying the instinctive synthesis to the factors to which I have referred, the judge arrived at a sentence that was wholly outside the permissible range of sentences available in the case. As I stated, I do not consider that the applicant has persuaded me to that effect.

51 In the circumstances, I would grant the applicant leave to appeal, but would dismiss the appeal.

52 I have had the benefit of reading in draft the judgment of Kaye JA. I agree with his reasons and the order that he proposes.

[1] The Queen v Samuel Morrison (Unreported, Supreme Court of Victoria, Coghlan J, 7 November 2014), [8] ('Sentencing Remarks').

[2] Sentencing Remarks, [33] - [36].

[4] See for example Clarkson v R (2011) 32 VR 361, 384 [89].

[5] House v R [1936] HCA 40; (1936) 55 CLR 499, 505.

[9] cf Okutgen v R (1982) 8 A Crim R 262, 264 (Starke J); Pearce v R (1983) 9 A Crim R 146, 150 (Brooking J).

[10] Fernando v R (1992) 76 A Crim R 58, [62] (Wood J); R v Fuller-Cust [2002] VSCA 168; (2002) 6 VR 496, 510 [78]-[80] (Eames JA); Bugmy v R (2013) 249 CLR 571, 592; Munday v Western Australia [2013] HCA 38; (2013) 249 CLR 600.

[11] (2013) 249 CLR 571, 595.

[13] Romero v R (2011) 32 VR 486, 488-9 [6] (Redlich JA).