R v Horrocks [2001] VSCA 230

[ 2001] VSCA 230

Criminal law - Murder, attempted murder and recklessly endangering life - Three victims - Sentence of "life imprisonment" with non-parole period of 23 years - Appellant suffering from deep-seated and well entrenched depressive disorder associated with feelings of "victimization by others" - Appellant neither "deluded" nor incapable of understanding the nature and quality of his actions nor their wrongness - Judge finding that depressive disorder reduced appellant's moral culpability and moderated to an extent the full application of principles of general and specific deterrence - Whether proper effect given to those findings in the sentencing process - Whether sentences "manifestly excessive" - Appeal dismissed.

2. Shortly after 11 o'clock in the morning on 3 August 1999 the appellant, John Brett Horrocks, who was then aged 38, left his room in Chisholm College at La Trobe University, taking with him a .38 calibre Smith & Wesson revolver with the magazine fully loaded and 45 spare bullets in his pockets. He had murder on his mind and his principal targets were Michael Capraro, Sally Mitchell and Kevin Coates, who were employed in and around the "Eagle Bar" in the Union Building, which was only some 100 metres from his room in Chisholm College. He wanted revenge against his principal targets for what he perceived was unfair treatment of him when he had been employed at the "Eagle Bar" earlier in the year. His working hours, so he believed, had been capriciously and high-handedly reduced, thus substantially reducing his income. His motive and intent were made clear in the note which he had left behind in his room, which read as follows:

"I'm not crazy. I tried every legal way possible to find justice for being wronged. This is a warning to employers, politicians and corrupt men of authority. The little guy is getting tired of being used and shat upon with no avenues for fair play."

He concluded with a quotation from "Julius Caesar":

His aim, as he was later to tell the police, was to kill his three principal targets, as many other innocent people who got in his way and, hopefully, to have himself gunned down by police at the end of the rampage.

9. His plan was thwarted before it could be fully effectuated, but tragically after one of his intended victims had been shot dead in his office, and another had been injured - luckily not badly - by a shot which he had fired at her from close quarters. He had selected his time carefully, knowing that the bar would not yet be open for customers, but that his victims would be present. He entered the main bar area where Sally Mitchell was making herself a cup of hot chocolate, walked up behind her and said, "Hi Sally". When she responded and turned around she saw the applicant pointing the hand-gun at her. Without warning he fired a shot at her chest, remarkably causing what transpired to be only a superficial injury. She stumbled backwards and took refuge behind an island bar. The appellant then walked straight into Capraro's office which was adjacent to the bar area. As he suspected, Capraro was there. He was trapped with nowhere to go. The appellant fired the remaining five bullets in the chamber of his gun at Capraro from point blank range, killing his victim instantly. Whilst this was occurring Ms Mitchell had managed to escape from the building to seek assistance. The appellant then walked up the stairs from the bar area to the administration quarters on the second floor of the Union Building, re-loading the pistol as he went. He was in search of Mr Coates, who, by then, had locked the doors of his room. However, he was confronted by Michael Torney, who also had an office in the administration area and was attempting to lock the door to protect himself and other personnel. The appellant was able to burst in, carrying with him his pistol in both hands. Torney, in what can only be described as the most heroic action, grappled with the appellant with the intent of disarming him. The gun discharged, but fortunately the bullet missed Torney and lodged in the wall behind. Torney redoubled his efforts and was successful in disarming the appellant. With the assistance of others, he managed to subdue him and detain him until the police arrived. The actions of Torney are worthy of the highest commendation. They clearly saved the lives of other innocent people.

12. In his recorded interview with police later in the day, the appellant was clear, lucid and chilling. Amongst other things he said:

"I was hoping to kill 7 or 8 people but, unfortunately, I did not get around to that. And I was hoping to get killed by one of your people. I didn't get around to that either; so I fucked it up completely"; "I intended to go and wreak vengeance on several people in the Union Building ... for their non-ability to understand what was going on and their employer relations sucked - so it was time to make myself a bit of an example to all these people that we're not going to put up with it any more."

When asked whether he had intended to harm Capraro, he responded:

"Shit yeah ... put a few holes in him to let some air in."

"I wanted to get three individuals ... I got Leon. He's dead. I winged Sally, but she's not dead unfortunately. Hopefully, she'll have a nervous fuckin' breakdown. And I didn't get Kevin Coates 'cos he's locked himself in his office. Wuss."

"I have no remorse. They deserved it ... They're just two-faced and they deserved everything they got. Unfortunately I didn't complete the job ... "

He told the police that he had purchased the gun and the ammunition a week or so before at "a pub in Port Melbourne".

23. Ultimately, the appellant came before Mr Justice Vincent in the Supreme Court, where he pleaded guilty to one count of murdering Mr Capraro, one count of attempting to murder Ms Mitchell and a count of recklessly endangering the life of Mr Torney. Not surprisingly, the appellant's plea focused upon the state of his mind at the time the offences occurred. His Honour heard evidence, inter alia, from Mr Joblin (a forensic psychologist) and from Dr Barry-Walsh and Dr Paul Mullen, each of whom was an experienced psychiatrist. He also had access to reports from Ms Jan Seely, a psychologist, who had conducted 12 "counselling sessions" with the appellant between January and July 1999 in her capacity as a member of the La Trobe University counselling service. This was during a period when the appellant was engaging in litigation with the La Trobe University. He had brought a WorkCover claim alleging that their wrongful conduct in effectively terminating his service (including, so he said, malicious circulation of rumours that he had been responsible for stealing stock) had caused him stress and anxiety. That claim had been refused by the University's insurer, and a conciliation procedure which had taken place shortly before the events of 3 August had ended without any result for him. His Honour also had access to a report from a Dr Stephen Stern, a consultant psychiatrist, who had examined the appellant on the insurer's behalf during the WorkCover proceedings.

26. The import of the psychiatric and psychological evidence and material was reasonably uniform. The appellant is an intelligent man who, as a mature-age student, was seeking to complete an honours degree majoring in English. He was an accomplished poet. The general view was that he was not psychotic or frankly deluded, but had a long-standing personality disturbance underlying which was a marked depressive disorder which was well concealed but which promoted within him feelings of victimisation at the hands of others. He had, since 1994, been suicidal on occasions - although such attempts which he had made upon his own life had been unsuccessful. Much of his disorder was traced to family circumstances, particularly a belief that his father had "shunned" him at the expense of his brothers. Although he had expressed, during his counselling sessions with Ms Seely, feelings of worthlessness, despair and isolation and a desire to revenge himself against those whom he believed were responsible, she had no reason to believe that his state of mind was such that he would carry through the "fantasies" which he was expressing.

29. At the end of the day his Honour imposed a life sentence upon the appellant for the murder of Mr Capraro and fixed terms of nine years and four years respectively for the attempted murder of Ms Mitchell and the reckless endangerment of the life of Mr Torney. He directed that two years of the latter sentence be cumulated upon the sentence for the attempted murder but, of course, directed that these sentences be served concurrently with the life sentence. He directed that the appellant serve a minimum period of 23 years before becoming eligible for parole. The head sentence so fixed was, as it seems to me, in line with the view expressed both by the Crown Prosecutor and appellant's own counsel. His counsel had said during the plea that he wanted to "flag" where he was heading, and that was to the effect that the judge should fix a minimum term. Later, when the prosecutor suggested that it was the Crown's view that it would "not be inappropriate" to impose a sentence of "life imprisonment" but to fix a minimum term, counsel for the appellant again said that he was "not at odds with the prosecutor", although he did go on to say that it would be "open to your Honour, and ... appropriate to set a fixed term".

32. In the course of sentencing the appellant, his Honour referred to the course of events which I have outlined, but recognised that to simply fix a sentence on the basis of that course of events in a vacuum would be, as he said, "simplistic". It was necessary, as his Honour recognised, to take account of the whole of the appellant's background indicating, as it did, a deeply entrenched disorder which had clearly triggered the events of 3 August. In the course of his sentencing remarks the judge, having referred to the appellant's past depressive episodes and receipt of some psychiatric assistance following suicide attempts, including a recent one which had occurred in prison, said:

"Although you suffered no mental impairment of a kind that would absolve you of criminal responsibility, it is important when considering your motivation and the degree of your personal culpability to take into account the evidence given by two very experienced psychiatrists ... and the equally experienced forensic psychologist ... . They have all expressed the opinion that you have suffered from a long-standing depressive condition which impacted in a variety of ways upon your capacity to deal with the shocks and slights of ordinary existence. Ultimately they opine that, unprepared to endure the situation any longer, you struck out committing acts of an extraordinarily violent and self-destructive character. As my earlier comments have indicated, I consider that there is much force in this analysis. However, it does not, in my opinion, necessarily provide a complete explanation for your behaviour. ... As I have remarked, you are an intelligent person who understood the nature and significance of the actions which you undertook after considerable deliberation. I have availed myself of the opportunity to view the video recording of the interview to which I have earlier adverted. It is notable for the depth of the hatred which you displayed and which extended well beyond your victims."

"Nevertheless, I consider that I should approach the matter on the basis that you were at the time in a deeply disturbed state of mind and suffering from depression and that your intense anger may well have been the product and expression of that situation. That finding carries a number of consequences. Among other matters, it impacts upon your level of personal culpability which must be regarded as reduced. It has relevance to the significance of the principle of general deterrence as a sentencing consideration which should in the circumstances be regarded as lessened. Whilst that principle has application, in my opinion, in your case, I do not consider that it would be proper to give full effect and force to it in a situation where the functioning of the perpetrator can be seen to have been impaired and his level of personal and moral culpability accordingly reduced. And, of course, it must be taken into account when considering your prospects of eventual reintegration into the community. With the passage of time and the provision of appropriate assistance, hopefully your underlying condition can be addressed and your successful reintegration achievable." (My emphasis.)

40. Having made the comments to which I have adverted, his Honour concluded:

"However, it cannot be forgotten that you staged what you declared and intended to be an act of war against specific individuals and symbolically against the wider community. This court representing a community, which has experienced other such incidents over recent years, must through the sentences that it imposes upon those who act in this fashion express societal denunciation and make it perfectly clear that conduct of this kind will not be tolerated. Those who act in the fashion that you have done must anticipate that, as a matter of just retribution, if committed (sic), very substantial penalties will be imposed. Additionally, the courts have a duty, in so far as they are able to do so, and to the extent that it is consistent with the proper application of other sentencing principles endeavour to protect the citizens of this community against such outrages and the risk that you pose."

His Honour noted the possibility that the appellant may have experienced a degree of remorse, although he regarded the appellant as still having a "limited insight" into his actions and their significance. He also noted the appellant's plea of guilty. Bearing in mind, as his Honour said he did, the range of sentences imposed by courts in recent years for the offences to which the appellant had pleaded guilty, he regarded the appropriate sentences to be those which he imposed.

46. In this Court, Mr Holdenson submitted, in support of ground 2 of the appeal grounds, that the judge had failed to give sufficient weight to the psychiatric and psychological evidence that was before him. Put another way, it was his submission that the judge, having made the findings on that material to which I have previously adverted, had imposed a head sentence and a minimum term which were inconsistent with those findings. In particular he submitted that, having found in the light of the evidence before him that the appellant's disturbed state of mind at the time when he committed the offences should operate to reduce his moral culpability and to sensibly moderate principles of general and specific deterrence, it can be seen that - in imposing the sentences which he did - the judge had failed to give effect, or proper effect, to those findings, or at least in respect of the minimum term which he fixed. A minimum term of 23 years, so Mr Holdenson submitted, was simply inconsistent with the findings which his Honour had made. Mr Holdenson, in support of this submission, took us through the evidence of Mr Joblin and Drs Mullen and Barry-Walsh to which I have referred. In particular he relied upon passages in the evidence of Dr Mullen in the course of which he had expressed the opinion that the appellant, although not "deluded", was, because of his depressive disorder, in a "paranoid" state which produced in him a "grossly exaggerated sense of persecution and indignation". However, it should be noted that Dr Mullen qualified this assessment by saying that the paranoid state which he had identified was not "of such severity that he could be described as deluded" and was not such that "it would have had the effect of depriving him of knowing the nature and quality of his conduct or of knowing that that conduct was wrong".

49. I am not persuaded that the error attributed to his Honour by Mr Holdenson was made, nor am I satisfied that the sentences imposed by his Honour failed to give due recognition to the findings which he had made. In imposing the sentences which he did, it is clear that his Honour was concerned to ensure that those sentences were proportionate to the gravity of the crime which the appellant had committed. In doing so it is also clear that he was seeking to balance the principles relevant to his sentencing task, including the level of the appellant's moral culpability, principles of general and specific deterrence sensibly moderated by the appellant's underlying depressive state, denunciation of the appellant's conduct, just retribution and protection of the community. In doing so, this very experienced trial judge was giving effect to principles which have long been established in cases such as Veen v. R. (No.1)[1]; Veen v. R. (No.2)[2]; R. v. Anderson[3]; R. v. Dumas[4]; and R. v. Jolly[5]. One thing is clear to me, and that is that - had it not been for the impact upon sentencing of the appellant's state of mind - the gravity of offending in this case would, in my view, have called for the imposition of a life sentence without the fixing of a minimum term at all. In such circumstances, the crimes would have ranked as crimes of the gravest kind. Even allowing for the state of the appellant's mind, they remain, in my view, very grave crimes indeed, committed as they were by a man who, on the only view of the evidence open to his Honour, knew the nature and quality of his actions and knew that they were wrong. His Honour's task in fixing appropriate sentences was a difficult one, because the principles which he was bound to apply - and which he did apply - not only overlap but tend to "pull in different directions". Some of them operate to moderate the sentence and some operate in the reverse direction. In this case, despite the sensible moderation of the principles of general and specific deterrence which his Honour found to be warranted, principles of denunciation, just retribution and community protection were bound to play a significant part in fixing an appropriate sentence proportionate to the gravity of these crimes. In the light of the expert opinion evidence that the appellant's disturbed psyche was long-standing and deeply rooted, but had not floridly manifested itself until he was nearly 40 years of age, his Honour - during the plea - was obviously concerned to have the experts' opinions as to if and when a time might come when the appellant could be successfully reintegrated into the community. Those opinions were guarded. Upon his Honour enquiring, Mr Joblin said:

"40 years; it is very difficult, and that is an issue which will have to be addressed at some point in the future ... . There is no doubt that becomes entrenched, and because it is entrenched, it is resistant to treatment."

This was, of course, a matter of significance to his Honour because, as he said, he had to consider the appellant's "potential for subsequent successful reintegration into the community". It is true, as Mr Holdenson pointed out, that Dr Mullen was more optimistic, but even he was guarded. It was his view that the appellant's "resort to anger" will become less likely with age and that his "rage at the whole world will decrease" as "hopefully, will his sense of righteousness". But, as he said, "on the other hand, some say it might even get worse - the suspiciousness and the obsessiveness". These were clearly factors which, consistently with the proportionality principle, his Honour had to weigh in the balance in fixing a sentence - and particularly a minimum term - which appropriately took into account the principle of community protection. In this sense, I can find no error in his Honour's approach of the type for which the appellant's counsel has contended.

54. Nor, in my view, was the sentence imposed by his Honour manifestly excessive, as Mr Holdenson argued in support of grounds 1 and 3 of the grounds of appeal. It was contended that his Honour had failed to give sufficient weight to the plea of guilty, the appellant's otherwise good character, his voluntary community service and the evidence of his remorse. It was said that the failure to accord proper weight to these matters had led to the imposition of a sentence which was disproportionate to the appellant's misconduct and which was outside the range of sentences appropriate for offending of this nature. Once again, it was put that, although his Honour had acknowledged these matters in the course of his reasons, he had obviously failed to give proper weight to them, particularly in fixing the non-parole period.

57. Once again, I am not persuaded that these grounds have been made out. As is conceded, his Honour was well aware of these factors, and I am not prepared to conclude that they were not given their due weight by his Honour in fixing the sentences which he did. One cannot lose sight of the fact - even making due allowance for the appellant's state of mind - that these crimes remain very grave crimes indeed. In particular, I am not satisfied that the non-parole period fixed was

beyond the range available to his Honour, in the sense that it can be seen at a glance - as Mr Holdenson submitted - to be manifestly excessive.

73. The formal order of the Court will be that the appeal against sentence is dismissed.

[1] [1979] HCA 7; (1979) 143 C.L.R. 458.

[2] [1988] HCA 14; (1988) 164 C.L.R. 465.

[3] [1981] VicRp 17; [1981] V.R. 155.

[4] [1988] VicRp 8; [1988] V.R. 65.

[5] [1994] VicRp 33; [1994] 1 V.R. 446.