R v Morrison [2011] VSC 311

Supreme Court of Victoria|2011-07-01|Before: CURTAIN J

MURDER - Plea of guilty - Brutal assault by kicking - Assault without motive - Senseless and spontaneous - Victim not known to offender - Prisoner alcoholic not previously jailed - Modest prior convictions - Profound remorse - TES: 19 years with a non parole period of 15 years.

**1 Neville John Morrison, you have pleaded guilty to one count of murder and have admitted prior convictions. You, together with Robert William Chaffey, assaulted David Alexander Rodakis in the hall outside his bedroom at the Gatwick Hotel in Fitzroy Street, St Kilda in the early hours of 15 February 2010. Mr Rodakis, upon being discovered, was placed in an induced coma and taken by ambulance to the Alfred Hospital. By reason of the injuries he sustained, he had been reduced to a vegetative state. There was no possibility of recovery and he died 13 days later from pneumonia.

2 In February 2010, you were living temporarily at your brother's flat in Alma Road, St Kilda. On 14 February 2010, you went to the St Kilda Festival and there met with your co-offender, Robert Chaffey. You did not know each other previously. It appears you each consumed cask wine throughout the day and into the early hours of 15 February 2010. Robert Chaffey was staying at the Gatwick Hotel. He had been there for three days, and CCTV footage shows you and Chaffey arriving at the hotel and going to his room at about 3.43am. You were both seen to leave within minutes and then return to the hotel at 4.42am, and you are seen to have a bladder of cask wine with you. David Rodakis lived at the Gatwick Hotel. You did not know him, nor did Mr Chaffey. At 5.08am, Mr Rodakis is seen to leave his room and go out into the street. At 5.10am, you are seen drinking from the bladder of wine and then at 5.12am you are joined by Mr Chaffey and, together, you stand in the doorway, drinking. Mr Chaffey then follows a woman into the hotel and appears to ask for a cigarette, and you follow him into the lobby. At this point, Mr Rodakis returns to the hotel and proceeds to his room. You and Chaffey follow him, and as Mr Rodakis tries to enter his room, you pull him back and throw him to the floor. What then follows is a brutal and vicious attack, all of it graphically captured on the CCTV footage.

3 Mr Chaffey stomps or kicks Mr Rodakis to the head or upper body and appears to chop into his neck, and you pull Mr Rodakis up from the floor, then punch him to the face, causing him to fall back. You stand over Mr Rodakis and Mr Chaffey kicks and stomps on him, and you punch him to the head twice. Mr Chaffey then walks off, having kicked Mr Rodakis a number of times to the head. You kicked Mr Rodakis two to three more times to the head. Mr Chaffey returned and kicked Mr Rodakis again, and you started stomping on Mr Rodakis' head. There is more kicking by both of you, then Mr Chaffey moves off again. Throughout this ordeal, Mr Rodakis does not appear to move, and certainly does not move after Mr Chaffey has moved off at 5.19am. You followed him and then returned. Mr Chaffey kicked Mr Rodakis one more time. You both walked off, went outside, and returned to the lobby at 5.21am. At 5.22am, you returned to where Mr Rodakis lay. He had not moved. You stared at him, then stomped on his head eight times. Mr Chaffey had gone to his room, but did not go in. He is seen again in the lobby and then outside, apparently looking for you. He returned inside, you saw him and waved at him, then stomped on Mr Rodakis one more time. This is recorded as occurring at 5.23am.

4 The both of you then go into the lobby and you pat Mr Chaffey on the back. Mr Chaffey eventually returned to his room and then left it and met up with you again in the lobby, and then returned once again to his room. You returned to where Mr Rodakis lay. He still does not appear to have moved, and you stomped on his head five times. You stomped on Mr Rodakis again, walked away and then returned to Mr Rodakis where you stomped on him yet again. You then walked off a little way, returned and stomped on Mr Rodakis yet again four more times. You walked away, returned one more time and stomped twice to Mr Rodakis' side. You then stepped over his body and stomped on his head one more time. Then you finally left.

5 The assault is recorded as having commenced at 5.17.30am and you walked away from Mr Rodakis for the last time at 5.31.10am. This was a brutal and savage attack, although not sustained throughout the entirety of that period. The CCTV footage shows the assault as I have attempted to describe it, and it also shows you drinking, swaying and unsteady on your feet.

6 You returned to where Mr Rodakis lay approximately five to six times and stomped on him and kicked him, and you were also present at times when Mr Chaffey assaulted him. At all times, you were assaulting a man whom you did not know and who had not done or said anything to you or Mr Chaffey.

7 You were subsequently arrested at your flat and charged later in the day on 15 February 2010. In your record of interview, you said you had no memory of the events. You had been busking at the St Kilda Festival and you recalled meeting a man you described as a Maori with whom you were drinking. You told the police you drank 14 litres of cask wine that day, and when the police described the assault to you, you expressed disbelief. You had no memory of the Gatwick Hotel or the assault, and you admitted you did not know Mr Rodakis. You identified yourself from the still photographs from the CCTV footage and you declined to view the footage, but accepted that you had done what was alleged against you.

8 The post-mortem was conducted by forensic pathologist, Dr Melissa Baker, on 28 February 2010. She determined that the cause of death was pneumonia occurring in the setting of a severe blunt head injury, which was a common complication of a head injury with an altered conscious state. Dr Baker reported that Mr Rodakis had failed to show neurological improvement after sustaining the head injury, and it was concluded that he would have remained in a persistent vegetative state.

9 The post-mortem examination confirmed the severity of Mr Rodakis' head injuries, with examination of the brain revealing diffuse traumatic axonal injury, gliding contusions, areas of haemorrhagic necrosis and sub-arachnoid and intra-ventricular haemorrhaging. Dr Baker reported that it is possible for significant blunt trauma to be delivered to the head without skull fractures, but with severe brain injury as was seen in Mr Rodakis. Other injuries confirmed at post-mortem includes facial fractures, rib fractures and lumbar transverse process fractures. In addition, examination revealed sub-scapular haematoma of the liver. All of these injuries were identified as due to blunt force trauma. There were no injuries typical of defensive injuries identified, and Mr Rodakis' body weighed 50 kilograms and measured approximately 169 centimetres in height with body mass index of 17.51; thus, he may be said to have been of slight build.

10 Mr Rodakis was 66 years old when he died. For many years, he had been an alcoholic. The Gatwick Hotel was his home. He had lived there since December 2008. He appeared to be generous and docile by nature, and was no trouble to anyone. Victim Impact Statements made by his sister, Cheryl Venn, his brother, Ivan Rodakis, and his son, Ashley Rodakis, were tendered in evidence respectively as Exhibits "B", "C" and "D". They speak of the sense of loss, sadness and distress; in particular, that David Rodakis' life was taken from him as a result of what they describe as a cruel attack in his own home, a place where he should have felt safest. Mr Rodakis' son, Ashley, who had not seen his father since he was an infant, regretted that he will now never have the chance to get to know him. No sentence this Court can impose can restore to them their loved one, nor can it ameliorate the sad and tragic circumstances surrounding his untimely death.

11 The Crown contends that each of you and Chaffey formed the specific intent to cause really serious injury to Mr Rodakis, and that it appears from the comments made by Mr Chaffey to a Mr Sutherland after the assault that at least Mr Chaffey had formed a drunken and entirely erroneous belief that Mr Rodakis was a paedophile. This belief was entirely without foundation. As stated previously, you did not know Mr Rodakis at all. I accept the Crown's submission that the CCTV footage depicts conduct from which an intention to cause really serious injury can be inferred, despite the apparent level of intoxication as seen in the footage. The Crown contends, and I accept, that your culpability was greater than that of Mr Chaffey. Mr Chaffey took no further physical part beyond the first engagement, but you returned and continued to attack Mr Rodakis after Mr Chaffey had left the scene.

12 Neville John Morrison, you are 50 years old. Your prior convictions include theft of a motor vehicle, unlicensed driving and two charges of exceeding prescribed concentration of alcohol. They also include assault and causing serious alarm (language) and obtaining social security benefits to which you were not entitled. These offences were variously dealt with by the courts in 1983, 1995, 2002 and 2008.

13 Your counsel, Mr Johns, submitted that you have been an alcoholic all your life, but not a violent man. You have no prior convictions for offences of significant violence. You have never been to gaol before and, by reason of your prior convictions alone, such violent behaviour as this, resulting in a charge of murder, appears to be out of character. Mr Johns submitted that there was no motive for your crime and that your participation was unfathomable, other than to say that your wits were obscured by excessive alcohol consumption. Even then, Mr Johns submitted, your behaviour is out of character, for even when intoxicated you have not previously resorted to violence.

14 Mr Johns conceded that this was a senseless, brutal attack, spontaneous in nature. You did not know your co-accused before meeting him on 15 February. You had never been to the Gatwick Hotel before. You had no reason to speak with the deceased, let alone assault him. Mr Johns submitted that you are not a fixture of St Kilda. It is said that you did your drinking in the hard drinking hotels of the western suburbs, but at this time, your brother had let you stay in his flat when he was in hospital, and it was in this way that you came to go to the St Kilda Festival. You sing and play the guitar, so you joined in the busking at the festival and, in that way, met Mr Chaffey.

15 I turn now to your personal circumstances. Your father was a New Zealander, your mother Australian. Both your parents were invalid pensioners. You were born here, one of eight children. Your father was an alcoholic and you lived an itinerant life, yet it was said to be a happy family environment. You were educated at the Footscray Technical School to Year 9, leaving school at the age of 15. You have always had an interest in music and have travelled around the country, busking and playing in bands. You met your wife when you were 26. She was also a drinker, but stopped when she became pregnant and subsequently worked for 20 years at the Lands Titles Office. You have a son now aged 21, and when he was born, you settled down and began work as a forklift driver and general labourer. You and your wife purchased a house in Altona Meadows and you lived there until the marriage ended in 2007 by reason of your excessive drinking. You have not stayed long at any job, partly due to your drinking habits, but also because you have been employed by labour contract hire agencies. At the time of this offence, you were working with such an agency and working at various sites throughout Melbourne, but sleeping in your car until your brother's offer of accommodation at his flat.

16 Dr Anthony Cidoni, forensic psychiatrist, gave evidence on your behalf, and his report dated 4 May 2011 was tendered in evidence as Exhibit "M1". Dr Cidoni detailed your personal circumstances and antecedents, which I accept. You reported to Dr Cidoni a history of depression from 2001 until 2006 as a result of a back injury, and again in 2008 when your marriage ended. You had some antidepressant medication at that time, but you did not regard it as effective. Dr Cidoni stated that it was difficult for you to give a clear account of your moods in those years because you spent most of that time intoxicated. You started drinking in your teens, binge drinking on weekends and progressing to daily consumption of 24 cans of full strength beer. You told Dr Cidoni that your drinking increased significantly in the two weeks before the St Kilda festival. You were buying cheap cask wine and drinking five litres every two days. In Dr Cidoni's opinion, you suffer from a very significant alcohol dependency for which you have never been treated, although I note in that regard that a previous disposition required that you undergo treatment with the COATS program, which you are said to have completed.

17 In Dr Cidoni's opinion, you have, in the past, suffered from some form of depressive illness. In his report, Dr Cidoni stated that by reason of your intoxication, it would have been difficult for you to form the intention to murder. Dr Cidoni's evidence on this point was not clear, but he conceded that from viewing the footage, it appeared that you at least intended to cause really serious injury and that your appearance was consistent with someone who had drunk 14 to 15 litres of wine. Dr Cidoni, as I understood his evidence, stated that your ability to form an intention was clouded by severe intoxication and that at that level of intoxication, it may be difficult to form any sort of intention. Dr Cidoni, however, seemed to confuse the concept of planning with that of intention, but on any view of his evidence, your judgment must have been affected by your intoxication, but that does not preclude as a matter of law the formation of a drunken intent in respect of the charge of murder to which you have pleaded guilty.

18 I note in regard to Dr Cidoni's assessment of you as suffering from very significant alcohol dependence, that when you were received into custody, as is reported by your reception history tendered in evidence as Exhibit "M4", that you were described as anxious and tearful, apparently suffering delirium tremens (DTs) and you were prescribed Valium. In Dr Cidoni's opinion, you should receive counselling to assist you to deal with the offence and to address the issues of alcohol dependence, and that it would be important to monitor you to determine whether the depression from which you have suffered in the past was due to alcohol use or an underlying condition.

19 You reported to Dr Cidoni that you could not stop thinking about your victim and you said sorry to him each night. In his opinion, your remorse was genuine.

20 Testimonials by your wife, Jillian Morrison, and son, Riki Morrison, were tendered in evidence on your behalf as Exhibits "M2" and "M3". Jillian Morrison, in her statement has poignantly detailed the effect of your alcoholism upon your family life and marriage. She describes you sober or drunk as never having been aggressive. You enjoy playing your guitar, which you have continued to do while in prison, and she describes you as gentle and loving, and while you have been sober in custody, she has observed the change in you to be marked. You have expressed to her your remorse for the pain you have caused Mr Rodakis' family and your own.

21 Your son, Riki, in his statement, describes you as a loving but absent father. You have never shown any aggression towards him. He states that you are remorseful for everything you have done and for the time you have missed out with him. He, as does your wife, visits you every week. Both your wife and your son will continue to support you, and provided you remain sober, your wife has said that you are welcome back home in the hope of rebuilding your family life.

22 Mr Johns has submitted that you are deeply ashamed of your conduct and feel a very keen sense of remorse for Mr Rodakis and his family, and that remorse is consistent with your plea of guilty. In that regard, you offered to plead guilty to manslaughter at the committal hearing, and you acknowledged your involvement in the assault during the record of interview, the difficulty being for you, as I understand it, that you have no memory of the events and, were it not for the CCTV footage, you would not have believed yourself capable of such acts.

23 I accept that your lack of recall is genuine and, to that degree, your assessment of how much you had to drink may be said to be unreliable, but it does appear that you were extremely intoxicated at the relevant time. In your record of interview, you genuinely express your disbelief, remorse and concern for Mr Rodakis' welfare and wellbeing, he not having died at that time.

24 Mr Johns has submitted that these acts were spontaneous and completely inexplicable, and that your moral culpability for the offending should be placed in the context of this abhorrent behaviour on your part occurring when your judgment, understanding, perception and reasoning may have been impaired by alcohol consumption, and that your conduct is to be looked at through the prism of severe intoxication and, as I understand his submission, in those circumstances, your conduct may be seen in the context where you lacked the foresight as to the consequences of your actions. In my view, the video footage is objective independent evidence of your conduct on that night and, as stated previously, is powerful evidence from which an inference of an intention to cause really serious injury can be drawn.

25 Mr Johns further submitted, with regard to your prospects of rehabilitation, that you do have a work history, although fractured and limited by your chronic alcoholism, and you do have a very limited criminal history. In gaol, you have been well behaved and have been designated a peer educator, you are pursuing your interest in music and, in particular, you are learning to read music in anticipation of being able to teach guitar upon your release. You are keen to do all the courses that are available to you and to use your time usefully. In these circumstances, and provided you remain sober, your prospects for rehabilitation are reasonable.

26 The maximum penalty for the crime of murder is life imprisonment, the offence here committed is a serious example of it. This was a brutal attack, motiveless, senseless, unprovoked, on a man unknown to you in the safety of his own home. That the crime is senseless and without motive, neither mitigates nor aggravates the circumstances of its commission, but they are nonetheless salient features of the offending. Certainly, you were intoxicated and your judgment 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, that that should mitigate the circumstances of your offending.

27 In sentencing you, I take into account your plea of guilty and give you a significant discount for it. By reason of your plea, you have saved the community the cost of a trial and, more importantly, the Rodakis family and witnesses the ordeal of one. I take into account that your plea is an indication of your remorse, and I take into account that your plea of guilty was entered in circumstances where you had no recollection of the events. I take into account that you cooperated with the police and you expressed your remorse in the record of interview. I take into account that your remorse is genuine and profound. I take into account your age, that at the age of 50 you will be serving a sentence of imprisonment, and a substantial one, for the first time. I take into account your modest criminal history and that you have no prior convictions for offences of serious violence. I take into account that you have been assessed as having a serious alcohol dependency and that you are described as an alcoholic. I take into account that, with sobriety and the continued support of your wife and son, that your rehabilitation is achievable.

28 Against these matters stand the nature and gravity of the offence here committed, the need to pass a sentence which will act in denunciation of your conduct and serve to punish you and specifically deter you from re-offending, which may be said to be unlikely if you remain alcohol-free. Further, any sentence imposed must give due weight to considerations of general deterrence. Any sentence I impose must also address parity of sentence with that of your co-offender, Mr Chaffey, whom I am yet to sentence.

29 Accordingly, giving due weight to all relevant considerations, for the crime of murder you are convicted and sentenced to 19 years' imprisonment with a non-parole period of 15 years. Were it not for your plea of guilty pursuant to s 6AAA of the Sentencing Act, I would have sentenced you to a sentence of 22 years' imprisonment with a non-parole period of 18 years. I declare that you have already served by way of pre-sentence detention a period of 501 days.**

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