R v Brown

[2017] VSC 590

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0018

THE QUEEN

v

HUGH BROWN

---

JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2017
DATE OF SENTENCE:	21 September 2017
CASE MAY BE CITED AS:	R v Brown
MEDIUM NEUTRAL CITATION:	[2017] VSC 590

---

CRIMINAL LAW – Sentence – Murder – Jury verdict – Offender stabbed friend and flatmate in his flat – Single stab wound – Offender sought help for victim immediately after stabbing – Little premeditation – Low-range example of the offence of murder but offender sentenced as a serious violent offender – Long-term drug and alcohol addiction – Guarded prospects of rehabilitation – 21 years’ imprisonment with non-parole period of 17 years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Grant	Office of Public Prosecutions
For the Accused	Mr M Cahill SC with Ms A Burnnard	Matthew White & Associates

HIS HONOUR:

1. Hugh Brown, a jury found you guilty of murder, an offence which carries a maximum penalty of life imprisonment.

Circumstances of offending

1. The murder occurred in your Port Melbourne flat on the afternoon of 17 June 2016. Your victim was your flat mate and friend, Steven Warlond. You stabbed him once, fatally, to the left chest, underneath his left armpit, whilst he was talking on the phone to a friend.

1. But before I elaborate on what happened that afternoon, and why, I need to go back in time.

1. For many, many years you were a heavy drug user and drinker. Your substance abuse continued and even increased in the months leading up to the stabbing as you struggled to cope with various personal crises. You had, it appears, an acrimonious break up with a girlfriend with whom you had been in a relationship for several years. Whether justifiably or not, you became increasingly concerned about reprisals from the people with whom she associated. You believed that one night people broke into your flat and injected you with a poisonous substance. You were also concerned about false rumours circulating that you were a paedophile and a police informer. Your flat was graffitied with words suggesting you were a paedophile.

1. During this period, Mr Warlond, who was also a drug user, was sharing your flat. Tensions between the two of you grew. As you told police in your interview, there were many things about Mr Warlond that were upsetting you, but he was unwilling to move out. You told police that Mr Warlond also made comments from time to time suggesting that you were a paedophile and a ‘dog’.

1. As your anxieties grew, you took to carrying knives and stashing knives in various places where you could access them if the need arose. You told various mental health Crisis Assessment and Treatment Teams (‘CATT’) and staff at various hospital emergency departments about the knives and your many fears, including the fear that you might harm others, particularly given your constant use of the drug ice. A North West Mental Health Service Assessment report from 5 May 2016 quotes you as saying, “I can’t trust myself if anyone crosses the line with me.”

1. A CATT report from 7 June 2016 says, “[h]is desire to not hurt others was a recurrent theme, however, I was at pains to point out that he remains responsible for his behaviour and that any aggression would not be tolerated.”

1. Whilst there is force in that observation, one cannot overlook the fact in your favour that in the months leading up to the stabbing, you regularly sought help for your drug and mental health issues, but you were not considered to be certifiable under the Mental Health Act 2014.

1. You even went to the extent of self-harming, on one occasion cutting your wrist with a shard of glass from a store window that you broke. You also contemplated throwing yourself in front of a tram.

1. On 7 June 2016, you attended at Melbourne Police Station, stating you were suicidal and that someone was following you. An ambulance was called, and, with your assent, you were taken to hospital, but you were soon discharged.

1. On 12 June 2016, you were found sleeping outside the Spencer Street Police Complex. A police officer eventually allowed you to sleep in the foyer, even though you had a flat to go to. You felt more secure in the vicinity of a police station.

1. You continued to use ice.

1. On the evening of 16 June 2016, you and Mr Warlond used ice at the flat. The two of you stayed up all night playing computer games on an Xbox in Mr Warlond’s bedroom.

1. You were still playing computer games there on the afternoon of 17 June 2016 when you stabbed Mr Warlond. He was speaking on the phone to his friend, a Ms Erasmus, when she heard him say something like, “You wouldn’t”. He then screamed loudly.

1. You claimed in your police interview that a short time before you stabbed Mr Warlond, he left the room and you discovered that he had several knives concealed in his bedding. You said you took the knives to your room and concealed them in your bedding, save for one knife that you kept on you just in case. You went back into Mr Warlond’s room at which point he asked where his knives had gone. You told police that he threatened you and produced another knife. You claimed that you stabbed him in self-defence — that it was either him or you — a claim which the jury obviously rejected.

1. I find beyond reasonable doubt that Mr Warlond did not brandish a knife at you at all. No such knife was found by the investigators who carefully searched his bedroom later that day. I also find beyond reasonable doubt that he did not threaten you just before you stabbed him. He was talking to Ms Erasmus just before you stabbed him and she heard nothing to suggest he was being threatening or even abusive to you. As for your claim about removing knives from Mr Warlond’s bedding, there is only your word to go by. The fact that some knives were found in your bedding by investigators does not mean those knives had come from Mr Warlond’s bedding:  it is consistent with you storing or stashing knives, as you told various CATT teams in the months leading up to the murder. Investigators found some knives in a wardrobe in Mr Warlond’s room and in a jacket of his, but that does not lead me to be satisfied on the balance of probabilities of this aspect of your story.[1]

   [1]These knives were not found in locations in the room consistent with Mr Warlond having wielded a knife just before he was fatally stabbed.

1. Let me return to the narrative of events. Immediately after stabbing Mr Warlond you left the flat to get help for him, carrying the knife. You threw the knife in a bin as you made your way to nearby shops. You entered a pharmacy and pleaded with staff to call an ambulance. You admitted that you had stabbed your friend. You waited in the vicinity of the pharmacy for police to arrive and surrendered to them when they did. You told police where you had disposed of the knife, but you then began, falsely, to set up your story of having acted in lawful self-defence. You told one of the arresting officers that you stabbed Mr Warlond out of fear that he wanted to kill you. In your record of interview, you claimed that Mr Warlond had threatened you and brandished a knife just before you stabbed him. At trial, your principal defence was self-defence, which the jury obviously rejected, as it rejected the suggestion that you lacked murderous intent.

1. Given that Mr Warlond was your friend, that you only stabbed him once in circumstances where you were probably still substance affected and that you immediately sought help for him, I find, on the balance of probabilities, that you did not intend to kill him. But, as I explained to the jury, an intention to cause really serious injury still constitutes murderous intent.

1. What was the immediate cause for the formation of that intent, and your acting upon it, cannot be known with certainty.

1. In your police interview, you referred to many things that were bothering you so far as Mr Warlond was concerned. They included:  Mr Warlond accusing you of being a paedophile and making the accusations not only to you but to mutual friends; Mr Warlond trying to provoke you by starting random arguments late at night; Mr Warlond unlocking the front door and leaving it unlocked; Mr Warlond accusing you of being a police informer, a ‘dog’; Mr Warlond’s presence at the flat causing issues for you with your youngest daughter; Mr Warlond saying things to you to make you paranoid, such as “Who’s out there?”; Mr Warlond using up all the milk and using your toothbrush to clean the rim of the toilet; and Mr Warlond taking the one set of keys you had to the apartment, preventing you from accessing your own apartment.

1. On 17 June 2016, you snapped. Whether fear of Mr Warlond played any part in you stabbing him, I am unable to say, but I am satisfied, beyond reasonable doubt, that he posed no immediate threat to you when he was on the phone talking with Ms Erasmus.

Victim impact statements

1. Mr Warlond was your primary victim, but he is not the only victim. His family grieves his death. I received victim impact statements from his father, mother and sister, who were present throughout the trial and your plea hearing.

1. They were overcome when they learned of Mr Warlond’s violent death. Their pain at the violent and senseless loss of a much loved son and brother is intense and ongoing.

1. No sentence I impose can undo what you have done.

Objective seriousness of offence

1. All murders are offences of the utmost seriousness. But there is a spectrum of seriousness even for the offence of murder that it is the duty of any sentencing judge to consider. Some murders are carefully planned and carried out with great cruelty. Others are committed on the spur of the moment, with limited violence and no premeditation at all. In your case, having regard to your admission that you armed yourself with a knife before going into Mr Warlond’s room, and the fact that you stabbed Mr Warlond whilst he was talking calmly on the phone to his friend, Ms Erasmus, I find that there was some premeditation on your part, but only of the most limited kind. You only stabbed Mr Warlond once and then, appreciating the gravity of your violent loss of self-control, sought help for him. There is also expert evidence from a highly experienced forensic psychiatrist, Dr Danny Sullivan, that your “mental functioning was impaired by a methamphetamine induced psychosis which significantly reduced [your] ability to think clearly or make calm and rational choices, disinhibited you and was causally associated with the death of [your] friend”.

1. In all the circumstances, I accept your counsel’s submission that your offence falls at the low end of spectrum for murder.

Circumstances of offender

1. I turn now to your personal history.

1. You were born on  22 December 1971 and are now 45 years of age. Your parents, who are both deceased, were immigrants from Scotland.

1. Your father was a carpenter and a builder. Your mother was a book binder. They raised a large family of seven children, four boys and three girls. You are the second youngest child. Sadly, both your parents drank to excess and during your childhood there were interventions by child welfare authorities. At least some of your siblings also used illicit drugs.

1. Your formal education was limited. You left school during Year 9.

1. You began associating with street and graffiti gangs as a teenager, and, on your own admission, have maintained such contacts, even into your 40s.

1. You have held a variety of jobs over the years, including working as a bookbinder, refrigeration mechanic, steel cutter and fitter and turner. Drug and alcohol abuse prevented you from completing an apprenticeship as a fitter and turner.

1. You last worked regularly in 2001. You have had periods of homelessness. Since 2010 you have been in receipt of the Disability Support Pension for depression and anxiety. Your flat in Port Melbourne was a Housing Commission flat.

1. You have had a number of long-term relationships. You have two daughters from two different relationships, one in her 20s, the other in her teens. Your older daughter provided a glowing reference about you.

1. I have already mentioned something about your drug and alcohol history.

1. Dr Danny Sullivan, who assessed you at the request of the defence, states that your life has been “increasingly dominated by substance use”.

1. You told Dr Danny Sullivan that you used alcohol from the age of 13, cannabis from 14, amphetamine or ‘speed’ from 15, heroin from 16, and methamphetamine or ‘ice’ from your early 30s. You also told him that you have used cocaine, ecstasy, LSD, magic mushrooms and ketamine. You have sniffed various substances, including spray paints. You have abused prescription drugs. You estimated that you had overdosed on opiates more than 20 times.

1. As for alcohol, you told a neuropsychologist, Dr Linda Borg, that by the age of 16 you were consuming a bottle of spirits a day. You have drunk to great excess for most of your life.

1. You have been hospitalised for mental health issues from time to time, but Dr Sullivan notes that past psychoses have always resolved with drug abstinence while in hospital or prison. He does not consider that you suffer from schizophrenia or any other psychotic illness.

1. Dr Borg opines that you have a moderate acquired brain injury (‘ABI’), arising at least in part from your drug and alcohol excesses. She indicates that your ABI translates to a moderate degree of cognitive impairment.

1. Your criminal history is extensive, with many adult prior convictions for dishonesty and drug related offences, beginning in 1989 through to 2013. You have received multiple sentences of imprisonment over the years. There are a number of prior convictions in the 1990s for offences involving violence. Notwithstanding their age, they are significant. They comprise convictions for intentionally and recklessly causing serious injury, both in 1994 and assault by kicking in 1998. By reason of your prior conviction for intentionally causing serious injury, you fall to be sentenced for this murder as a serious violent offender, although the prosecution does not seek a disproportionate sentence by way of preventative detention. But I am required by section 6D of the Sentencing Act 1991 to regard protection of the community as the primary sentencing consideration in your case.

1. That is also appropriate as I am guarded about your prospects of rehabilitation, given your criminal history and long-standing alcohol and drug problems. Dr Borg assessed your prospects of reoffending as high.

1. Even though you ran your trial, I accept that you are remorseful. Your efforts to get immediate help for your friend were not, in my view, just motivated by self-interest. You have also expressed your regret for the suffering you have visited upon Mr Warlond’s family. But the false defence you set up, to police on the night and at your trial, reduces the significance that I can attach to your remorse.

Sentence

1. I sentence you to 21 years’ imprisonment.

1. I fix a non-parole period of 17 years.

1. I declare that you have served 461 days by way of pre-sentence detention.

1. I declare that I have sentenced you as a serious violent offender.

1. I make the Disposal Order sought by the prosecution.