The Queen v Browning [2015] VSC 556

Supreme Court of Victoria|2015-10-09|Before: LASRY J

CRIMINAL LAW - Sentence following jury verdict - Spousal murder - Decision to end marriage - Numerous stab wounds - Spontaneous offending - No history of violence - Mental state of the accused - Post traumatic stress disorder - Effect of consumption of doxylamine - Moderation of specific and general deterrence - Sentence of 18 years' imprisonment with non-parole period of 14 years.

1 Brian Robert Browning, on 6 May 2015 you were found guilty by a jury of the murder of Catherine Elizabeth Browning following a trial. On 4 September 2015, I heard submissions concerning sentence from the prosecutor, Mr Brown, and from counsel on your behalf, Mr Georgiou SC. The maximum penalty for murder is life imprisonment and it is now my task to impose a sentence upon you.

2 The jury's verdict of guilty of murder arose from an incident which occurred at your family home on 19 December 2013 in an all too familiar incident of fatal domestic violence. At your trial, you had raised the issue of whether the prosecution could prove beyond reasonable doubt that you were intending to kill your wife or cause her really serious injury.

3 The genesis of your decision to kill your wife appears to have been the fact that you and your wife had decided to end the marriage, a decision you were reluctant to agree to. You had met your wife in 1988 and married in 1992. You had never displayed violence towards her prior to killing her. The evidence did suggest that your family had been an important part of your life but there were issues concerning drinking and gambling by both of you coupled with financial problems. The result was that nine days before you killed your wife, it was agreed that you and she would separate although it was your wife who initiated the proposal.

4 During the trial your eldest daughter Amy gave evidence about the background of your family and the fact that on 13 December 2013 she arrived back in Melbourne from a holiday in Thailand. In her evidence she said when she got home you seemed different. You later told her there was some bad news and that you and your wife were getting a divorce.

5 She described you as looking very upset, depressed, moping around and not yourself. She also noticed that you had begun smoking again which you had not done for a long time. It became apparent to your daughter that your mental health was deteriorating and you were not sleeping. Your daughter discussed with you the possibility of going to a doctor and getting some sleeping tablets. You told her you would purchase some from the chemist. You did go to a chemist and purchase the non-prescription medication called Restavit which has, as its main ingredient, doxylamine. I will return to the relevance of that shortly.

6 On the night that you murdered your wife, she had gone to a Christmas party in Mordialloc. She returned home at about 11.15pm. On her return she slept in your daughter's bed room. Just after six o'clock the following morning, you got out of bed and went to the kitchen and obtained a knife from a knife block. The knife was an Arcosteel brand kitchen knife with a 18 centimetre blade. You then went into the bedroom where your wife was sleeping, tapped her on the shoulder and then stabbed her 15 times to her upper body, mainly around her upper chest area and her throat or her neck.

7 Your daughter Amy heard her mother screaming and went to investigate. As she approached her bedroom she saw you walking out of the bedroom holding a knife covered in blood. You threw the knife on the floor and said the word 'bitch' before walking away from the room. Your daughter yelled 'What have you done?' but you did not reply.

8 Amy then returned to her room to check on her mother who had stopped breathing. Police and ambulance officers attended at the house a short time later. When the police attended at the house you were sitting at a garden setting in the backyard. Police asked you what happened and you replied, 'I've killed my wife'. You were then arrested and cautioned.

9 There was an empty packet of Restavit on the table in front of you and you were asked what they were for. You said they were to help you sleep and that you took four before you killed your wife and the rest after.

10 As I have said, the issue in your trial was directly concerned with your state of mind when you killed your wife. Your trial was conducted on your behalf on the basis that you did not have murderous intent but clearly by their verdict the jury rejected that.

11 In the circumstances of this case, I sentence you on the basis that you intended to kill your wife rather than cause her really serious injury. The actions you took are entirely consistent with that state of mind.

12 On your behalf, Mr Georgiou submitted that in the week leading up to you killing your wife you were highly distressed as a result of the breakdown of your marriage. The evidence of your daughters confirms that. Part of the problem was a lack of sleep and, as a result, rather than go to a doctor you went to the chemist and obtained the tablets known as Restavit. You were told by the pharmacist that you should take half a tablet at night and see how it affected you. You were also told you could increase that to one tablet up to a maximum of two tablets. Based on what you told police and medical practitioners I am not sure how many of those tablets you took and, more importantly, how many you took before you murdered your wife. I think it is clear that you took more than one or two. Your trial was conducted on the basis that you took enough tablets so that your mental state was adversely affected and that you in fact killed your wife without intending either to kill her or cause her really serious injury. As I mentioned, the jury rejected that proposition.

13 In his evidence as a prosecution witness during the trial, Dr Lester Walton said that Restavit contains doxylamine, primary a sedative which can have adverse side effects. However, he said he had never seen a doxylamine induced psychosis.

14 In his submission on your behalf Mr Georgious argued that this drug could cause a person to act out of character. The killing by you of your wife was certainly out of character given your history which I will shortly deal with. However the likely explanation is what Dr Walton referred to as the 'pressure cooker' effect. As to that he said:[1]

Sometimes you'll find people who are passive by nature, not given to violence or using angry words, they can soak up conflict and criticism and difficulties, cumulating over years, and then finally the pressure cooker explodes, if you like, they can't contain it any longer.

15 That being said, there exists a fundamental community expectation that domestic violence be denounced and denounced in the strongest of terms. The propensity of persons to commit domestic violence while labouring under the so called 'pressure cooker' effect does not ameliorate that expectation. In Felicite v R,[2] Redlich JA noted that, in the context of spousal murder 'the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a domestic partner in a domestic setting even when there are present, circumstances of provocation or great emotional distress'.

16 During the plea the prosecutor tendered four victim impact statements. Three of them were read by authors and the prosecutor read one. They were from the following people:

Sue Satchwell, the sister of Catherine Browning; and

17 The victim impact statements highlight the terrible effect of your actions in murdering your wife. Each of these four people will carry the effect of what you did for the rest of their lives. The suffering they must endure is so pointless; so needless. There were many other more constructive ways to deal with the issues you faced in relation to your wife. Considering these people had no direct involvement in those issues, the consequences they must now endure are severe. Accordingly, I have taken the admissible portions of these statements into account in the sentence that I will shortly impose on you.

18 You are 54 years of age and are the oldest of five children. Your father has died and your mother is still alive. As a child it would appear you suffered physical violence at the hands of your father when he was intoxicated. Your father was an alcoholic. That kind of violence toward you lasted until your mid-20s. There was also emotional abuse by your father and as the eldest child you apparently received the brunt of your father's hostility.

19 Your employment career was as a baker although you had several other jobs. In 2007 you sustained a shoulder injury and were finally terminated from employment in 2009. You had to wait until 2014 to eventually receive the monetary compensation arising from the injury.

20 You drank alcohol to excess and you told Associate Professor Andrew Carroll that you were a binge drinker. You also had a long history of cannabis use although this drug does not seem to have figured in your condition on the day you killed your wife. You and your wife both were gamblers and, at times, gambled well in excess of what you could afford.

21 You have now lost friendships and face a bleak future. However, you have the support of your two daughters. They gave evidence at your trial and one was a witness to what you did, yet they remain supportive of you. That stands to their credit and will be a benefit to you over the period of your sentence and beyond.

22 In the course of his plea, Mr Georgiou submitted that at the time you killed your wife there were three mental health issues that '... help[ed] to explain [your] offence'. That submission was based on the report of Associate Professor Andrew Carroll - a consultant psychiatrist.

23 The first of those three mental states is post-traumatic stress disorder brought on by the physical violence you suffered at the hands of your father. The second is a diagnosed severe adjustment disorder and the third is described as 'mild intoxication' with both doxylamine and nicotine.

24 In the broad, Mr Georgiou relied on all of the principles that derive from the judgment of the Court of Appeal in R v Verdins; Buckley; Vo.[3] Thus, there can be little doubt that at the time of the commission of this offence you were suffering from a mental disorder, abnormality or an impairment of your mental function. The question then is whether those impairments had a 'realistic connection' with the offending and if I am satisfied that there is such a realistic connection between your mental state and your offending then a sensible moderation of the application of the principle of general deterrence is appropriate.

25 Importantly, as Maxwell P pointed out in O'Connor,[4] none of the Verdins considerations apply '...unless there is specific evidence from an expert about:

(a) the nature of the impairment of the offender's mental functioning;

(b) how the impairment affected, or was likely to have affected, the offender at the time of the offending; and/or

(c) how the impairment was affecting the offender at the time of sentence, or was likely to affect him/her in the future.'

26 During your trial, Dr Lester Walton gave evidence on the topic of the likely effect of doxylamine on your state of mind at the time you killed your wife. He spoke to you in April 2014 and you told him you had visual hallucinations and some memory of stabbing your wife. Whilst rejecting the possibility of a drug induced psychosis, he did think it possible rather than probable that your mental state could be compromised by taking 4 - 6 Restavit tablets. He said much of what was observed of you by police and paramedics was consistent with you being overwhelmed by what you had done.

27 In his report prepared for the purpose of the plea, Associate Professor Carroll expressed the view that there were three distinct mental health issues that he concluded were 'major causal factors' in your offending. They are the issues that I have described above. In describing how these factors became a cause of your conduct Associate Professor Carroll concluded that your arousal levels were heightened resulting in you being in an acutely anxious state similar to panic. This seems to have related, at least in part, to financial consequences of your marriage ending and you developed a 'short-lived' rage. You then acted impulsively.

28 There is no history of violence by you toward your wife until this happened. I accept that you acted impulsively. I have no doubt that at the time you killed your wife you were in a rage which can be directly linked to the hostility and anguish you felt about the prospect of your marriage ending. I also accept that your pre-existing mental state as described by Associate Professor Carroll realistically contributed to your actions to some degree. In addition, your agitation was accelerated by a lack of sleep. I am therefore persuaded that there should be some sensible moderation of the sentencing considerations of specific and general deterrence.

29 Finally, given your long-standing mental state, your time in custody may be more onerous if you do not receive the professional assistance you need and, to the extent that I can, I have also taken that into account in the sentence I will impose.

30 I am willing to accept that you regret what you have done. However you conducted the trial on the basis that the significant cause of your actions was the non-prescription sleeping medication you took that evening. As I have said the jury verdict demonstrates they rejected that. On your behalf, Mr Georgiou argued that your remorse was evident from your record of interview with the police on 19 December 2013. In my view, however, I consider your answers in the record of interview represented an unwillingness to accept responsibility for what you had done and little in the way of regret at that stage. Since then you have had a chance to reflect on the event and it may well be that you now have a greater insight into what you did. Associate Professor Carroll suggested that in his interview with you, you showed 'significant levels of remorse'. I must say I am not persuaded that your remorse is of a significant level.

31 By the time you become eligible for release on parole you will be well into your late 60s. I regard the prospects of you committing other offences or behaving violently at that time as unlikely. I accept that what you have done is a tragedy for you too. The only risk to your rehabilitation is substance abuse. Associate Professor Carroll is of the view that you will need further psychological assistance to avoid that risk. I therefore sentence you on the basis that your prospects of rehabilitation are good. Those prospects are improved by the fact that, as I have earlier said, your two daughters, Amy and Rhiannon, remain supportive of you.

32 Your conduct on 19 December 2013, of course, amounts to a very serious offence for which a substantial period of imprisonment must be imposed on you. You took the life of your wife in circumstances where no conduct of hers on that night could have in any way contributed to what occurred. She was asleep in her bed. You woke her to kill her. You did what you did with one of your daughters in the house and she was a witness to the immediate aftermath of your actions. As the Court of Appeal has made clear a murder committed in circumstances of domestic strain and tension is not to be regarded as falling into a less serious category.[5] The community expects significant punishment for an outbreak of 'homicidal rage'.[6] However I have taken into account the absence of any history of violence, the impulsive nature of your actions and your fragile mental and emotional state, and believe it appropriate to moderate the sentence to be imposed on you.

33 In all the circumstances, in my opinion, the sentence I will impose on you is a period of 18 years' imprisonment. I direct that you serve a period of not less than 14 years before becoming eligible to apply for release on parole.

34 Pursuant to s 18 of the Sentencing Act 1991, I declare that your period of pre-sentence detention is 660 days, not including this day, and I direct that that period be reckoned as time already served by you and entered in the records of the Court.

35 On 4 September 2015, I made the orders for disposal of certain property pursuant to s 78(1) of the Confiscation Act 1997 and for retention of a forensic sample pursuant to s 464ZFB(1) of the Crimes Act 1958 sought by the Crown and not opposed on your behalf.

[5] R v Gojanovic (no 2) [2007] VSCA 152.

[6] Felicite v The Queen [2011] VSCA 274; (2011) 211 A Crim R 266 at 272.

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