R v Dean
[2010] VSC 314
•6 September 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1463 of 2009
| THE QUEEN |
| v |
| JAMES AARON DEAN |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 25, 28 February, 7 April 2010 | |
DATE OF SENTENCE: | 6 September 2010 | |
CASE MAY BE CITED AS: | R v Dean | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 314 | |
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Plea of guilty to murder, sentence 21 years, minimum term 17 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms MM Williams S.C. Mr AJ Grant | Office of Public Prosecutions |
| For the Accused | Mr D Drake | Matthew White & Associates |
HER HONOUR:
James Aaron Dean, on 7 April 2010 you pleaded guilty to the murder of Anthony Leo Morrison, who died at the Alfred Hospital on 28 September 2008.
You are now 32 years of age, having been born on 11 February 1978, and you were aged 30 at the time of the offence. You have a number of prior convictions which occurred between 1996 and 2006. You have 12 court appearances over that time.
The majority of the offences for which you have been convicted are burglary and theft offences, these being at least 12 burglary offences, 18 theft offences, numerous attempts at shoplifting and offences of that nature as well as frauds. All of these have a limited application except to indicate a disregard for the laws of society in a general manner. You also have charges relating to destruction of property, lawful damage and similar offences.
However, the matters of real significance are a number of assault matters being first then unlawful assault charge in Seymour and the Magistrates' Court in June of 1996 for which you were placed on a bond to be of good behaviour for 12 months.
The next was a charge of assault at Muskvale in the State of New South Wales in July 2000 for which you were fined $500 at the Magistrates' Court at Seymour.
On 9 May 2003 you were convicted of using threatening words, behaving in an offensive manner, resisting a police officer in the lawful execution of his duty, and sentenced to an aggregate term of imprisonment of 12 months in respect of those and a series of burglar and theft charges.
In September 2006 in the Magistrates' Court at Broadmeadows, you were convicted of unlawful assault, together with other charges and were sentenced to an aggregate term of imprisonment of three months.
On the first three charges being unlawful assault, failing to answer bail and possession of cannabis. All of those were directed to be served concurrently with the sentence you were then undergoing which was a sentence imposed in August 2006 of three months.
Those assault matters are considered to be of some relevance in the task of determining the appropriate sentence.
The circumstances surrounding this offending require little in the way of background material to be able to understand what occurred on the day in question. At the time you murdered Anthony Morrison, you were residing with Shellee Cornwell, at 41 Solar Drive in Whittington. The deceased, Anthony Morrison, was residing at 45 Solar Drive, Whittington, in a caravan at the rear of the property. His ex-partner, Donna Ford, was residing in the house at 45 Solar Drive, Whittington, with their four children.
Your partner, Shellee Cornwell, with whom you were residing, had moved with her children to reside at 41 Solar Drive, Whittington, in 2006. After moving to the premises she became friendly with Donna Ford, the ex-partner of Anthony Morrison, the deceased man. Their children, who attended the same school, had been friends.
Unfortunately the relationship between Shellee Cornwell and Donna Ford broke down around Christmas of 2006. There appeared to be what could best be described as continuing bad behaviour between both Shellee Cornwell and Donna Ford as time progressed. An intervention order was obtained by Cornwell on 28 February 2007 which lapsed on 28 February 2008, and a further order was obtained in similar terms on 22 July 2008 by Shellee Cornwell.
There is no purpose in detailing the history of bad behaviour by those parties. There is no doubt, however, that it led to a very fractured and unpleasant relationship between the two families.
You, James Dean, had only recently commenced living with Shellee Cornwell in Solar Drive in Whittington. You had previously met her in Kilmore some four years earlier. The relationship which had commenced then had been severed and it had only been recently resumed about three weeks prior to this incident occurring. You informed the police in your record of interview that you had moved into the premises as a result of the ongoing problems between the two families.
The day on which this offence occurred was Saturday 27 September 2008. It was Grand Final day and the deceased and Donna Ford and their children had gone to the home of a friend to watch the AFL Grand Final and have a barbecue lunch. These premises were just a short distance from 45 Solar Drive where they resided.
During the afternoon, the eldest daughter returned home to get her iPod. She was unable to locate it and returned and informed her mother to that effect. Donna Ford then returned to the home at 45 Solar Drive and noticed not only her daughter's iPod missing but also her own iPod, together with a Play station video game. She notified the police of the theft and then began walking along Solar Drive to return to the barbeque. Walking past No. 41 Solar Drive, she met you and your partner, Shellee Cornwell out the front of the home, and she purportedly asked you if you had noticed anyone breaking into her house. She was informed that nothing had been seen.
Ms Ford walked away and claimed to yell to the whole of the neighbourhood, "You're all a bunch of thieves." This was taken by you and, it would appear, Ms Cornwell, as being directed towards the occupants of your house and it clearly caused offence. The police have subsequently discovered that, in fact, the two iPods and Sony Play station had been stolen by the elder son of Ms Cornwell and that the boy had informed Ms Cornwell of the theft and she told him to dump the property, which he did.
There were a number of observations of you during the afternoon by persons such as your neighbours who noticed you to be agitated and angry, and there were occasions on which you yelled out quite offensive statements to different people.
Anthony Morrison left the barbeque at approximately 5.30 and began walking home carrying a compact disc player. He saw you standing outside the front of the house, and made some comment to you about your hair. You became angry, approached Morrison and knocked the compact disc player out of his hands. It would appear that both you and the deceased began to fight, throwing punches at each other. Ultimately you were knocked to the ground by Morrison. Your got up and began to walk back towards 41 Solar Drive.
Information that you were fighting was passed onto Donna Ford who rang to the area, saw you and Ms Cornwell, and began to verbally abuse both of you, as you walked back up to the house at 41 Solar Drive. It would appear that Mr Morrison told Ms Ford not to worry about it, and to go back to the barbecue. Ms Cornwell's children were standing on the front porch watching what was occurring. Donna Ford followed you and Ms Cornwell up the driveway to your home, with Mr Morrison short distance behind her. You then turned and pushed her in the shoulder, causing her to fall backwards onto Morrison who was behind her. You, Ms Cornwell and your children went inside the home and the security door was closed.
Ms Ford opened the security door and continued to yell abuse at you both. Ms Cornwell then told Ms Ford to "Piss off" and locked the security door. Mr Morrison grabbed Ms Ford and began to walk away from the front door. Ms Ford was struggling with him, and tried to remain at the front door.
The only comment I can make about all of this is that the behaviour of all parties in respect of this is reprehensible. As adults, what you demonstrated to your children in terms of patience, tolerance, community attitudes and behaviour was a disgrace. Children learn by example, and the example of both Ms Cornwell and Ms Ford, which they have provided to their children is one of which they should be deeply and personally ashamed. Bad behaviour and animosity, over a lengthy period of time only ever results in disaster for those involved in it. Both Ms Ford and Ms Cornwell need to examine their behaviour and perhaps reflect upon where that behaviour can ultimately lead.
After you, Ms Cornwell and the children were all inside the house at 41 Solar Drive you had the door locked. Mr Morrison managed to pull Ms Ford away from the front door and down onto the roadway of Solar Drive. As they passed the letter box, Ms Ford kicked it, and Mr Morrison was still pulling her in the direction away from the house, and they were in the bike lane on Solar Drive when you took a gun which you had assembled after going into the house. You loaded it with approximately ten rounds. You were in the bedroom of the house. You raised that firearm, took aim through the open window of the bedroom. You had what is referred to as a sighting scope and you fired a shot which went over the head of the deceased man.
Being a bolt action firearm, you deliberately ejected that cartridge and placed another live cartridge into the breech.
You then took aim using the sighting scope and fired a second shot which struck Mr Morrison in the left temple region. He had his back to the house at the time that you fired the shot. He immediately fell to the ground. Ms Cornwell's son who was then aged 15 heard the two separate shots and then screaming. He was aware that you were in the bedroom and he believed there were about eight seconds between the first and the second shot.
He saw you go out the back door and jump the neighbour's fence. He described you as appearing angry and walking with clenched fists. When you ran from the premises you were carrying the firearm. You jumped the fence between the house at 43 Solar Drive, broke a side window of the unoccupied house and climbed into the roof cavity through a manhole in an attempt to avoid being located by the police who, not surprisingly, attended in numbers.
Mr Morrison had to be dragged away from where he had fallen because you had not been located at that time. He was subsequently treated by ambulance paramedics, taken to Geelong Hospital and ultimately from Geelong Hospital by air ambulance to the Alfred Hospital but he died the next day from the severity of his injuries.
At approximately 7.15 you were observed on the roof of 43 Solar Drive, Whittington and police began negotiations with you. There is some dispute as to whether or not you volunteered to surrender or the police convinced you to surrender or they took the firearm from you. It makes little difference. You are not being punished for what happened afterwards. You are being punished for the murder of Anthony Morrison.
There is no doubt, of course, that you had the area surrounding the house in a state of some fear until you were located and surrendered. As I indicated, that does not increase your punishment.
You told the police during the record of interview that you had been in a verbal and then physical altercation with Anthony Morrison and that Morrison had threatened to shoot you. There is no evidence by any other person to that effect but you say it was after that time that you retreated into your home and assembled the firearm.
You claim that the first shot that you fired was a warning shot and that Morrison was, in fact, walking towards your door and that after the first warning shot he continued to walk towards the door.
I do not accept that Mr Morrison was walking towards the house. I do not accept that you felt under threat in your locked house in the bedroom. I am satisfied to the required standard Mr Morrison was walking away from your house and attempting to take Ms Ford with him.
You claimed in your record of interview to the police that you let the first one go in the air, referring to the first shot, and that in relation to the second shot that you intended to skim the head of the deceased. You also told the police you believed you were a skilful enough shooter to be able to skim someone.
As I indicated, I do not consider that there was any aspect of self defence in respect of this. The deceased man was unarmed. He had been involved in a physical altercation with you, had clearly had no opportunity to return to his home to obtain any firearm and it is my view that you were aware that he was unarmed. I do not accept that he was approaching you or the house in any menacing manner and what you have done is, in fact, shot an unarmed man whilst he was trying to diffuse conflict between the parties. This is an appalling crime.
As I indicated earlier, it reflects badly upon all persons involved but most particularly upon you, Mr Dean. You were not shooting at a duck, bird or a rabbit. This was a human being. A partner. A father. A son. It was an obscene crime.
In this matter I have received five Victim Impact Statements which are Exhibit 2 on the plea. They are from his ex-partner, Donna Ford, his mother, Kaylene J Morrison, two of his sisters, Michelle Knudson and Chantelle Knudson, together with their brother, Jerry Knudson.
Donna Ford has lost custody of her six children that she had as a result of alcohol playing an even more significant part in her life. Those children are, as I understand it, being raised by the deceased's mother, Kaylene Morrison. She had formerly been a seasonal worker. As a result of raising the six children she is unable to continue with that. She is equally unable to assist with any of her other children and grandchildren in terms of being a grandparent and assisting in their upbringing.
It would appear that Mr Morrison had a very difficult life growing up. His children, equally, will have a difficult life.
Donna Ford saw Mr Morrison shot in front of her. She talks about depression and spiralling alcoholism, none of which, is surprising.
There are no Victim Impact Statements from the six children but that may well be to do with just their age.
One thing is certain, Mr Morrison was a son, a brother, a father and a partner who was loved and cared about by many people. Although they may not be the most eloquent of Victim Impact Statements it is clear that his death has caused much pain and grief to a wide variety of people and there are now six children who no longer have a father.
The pointless loss of a decent and much-loved man is a tragedy for all who cared about him and one from which long-term recovery will be very difficult for those individuals.
I am equally bound to take into account your own personal circumstances. As indicated, you were born on 11 December 1978. Your father was a concreter. Your parents were living in Broadford and moved, subsequently, to Kilmore.
According to the instructions you gave to your counsel, to some extent, even then, he was an alcoholic. He currently suffers from liver failure and he is aged 51. Your mother is 48 and she has worked in a variety of positions.
You are the eldest of three children. The youngest child perished in a house fire when he was 18 months old in 1984. The fire was a result of an electrical failure and you were rescued from the house but your youngest brother was unable to be rescued. Exhibit 8 was put before me which were two cuttings in relation to the fire and the death of your young brother. You were aged five, your brother, Brett, was aged three and the child who died, 18 months at the time.
Both you and Brett were rescued by your mother and a neighbour, but as indicated, they were unable to rescue your brother, Shane.
Your counsel stated that in relation to the fire, you instruct, that you have a memory which you first expressed at the age of 21, that you were in fact responsible for the fire. That there was a chainsaw which had a petrol container attached to it and you remember throwing petrol from the chainsaw on to the fire which resulted in a burst of flames, which you say, followed you and the chainsaw as it dripped on the floor. You say that was how the fire commenced that killed your young brother.
That, of course, is not accurate. It was an electrical fault. False memory or otherwise, that is what appears to be the memory that you harbour as to this fire.
You told your father about that at 21 and your mother when you were about 28 that they were your beliefs. You do not accept what they tell you about this being an electrical fire.
After the fire your father became more involved with alcohol and marijuana in terms of dealing with his grief whilst your mother tended to pull herself together and continued to support the family.
Your father, ultimately, left the family and your mother has remarried Mr Craig Waters, who gave evidence on your behalf. He is a grounds keeper at the State Motor Cycle Sports Complex and he works part-time with Human Services Juvenile Justice. He is also a District Commissioner of the Scouts Association and has been a scout leader for over 20 years.
He met your mother in 1987 and they were married in 1989. You were aged around 11 at that stage.
Mr Waters and your mother have another child together, a son. Mr Waters previously had another child. He is of Koori background and he involved you with various aspects of his Koori heritage including visiting a Koori settlement up at Gilgandra where you learnt about hunting, fishing and tracking.
He described you as being a poor student who had literacy issues and you were diagnosed later in life with Attention Deficit Hyperactivity Disorder. You remain to this day functionally illiterate.
At around the age of 15 he described you as getting into more than the average amount of trouble for shoplifting, criminal damage and drinking offences.
You were suspended from school on a fairly constant basis and ultimately expelled after you had repeated Year 7 at Seymour Technical College. You had been sent there after you had completed Year 7 at the high school. You were a child who would be described, he said, as fat at that stage and you have indicated to your counsel that you were the subject of bullying and humiliation.
One of your major pleasures was being involved with your aunt's children, that is your father's sister's children. Her husband, your uncle, took you under his wing and you and the other male children were regularly taken hunting and shooting; shooting rabbits and kangaroos which were used as meat for the dogs.
When you were about 15 and a half you decided to seek out your father and went to Townsville in Queensland. Your father at that stage was the head of a gang of concreters and he gave you a choice of going back to school or working with him. Against your mother and stepfather's wishes you joined your father where you worked full-time six days a week. You drank unfortunately equally like a man with your father's approval. You were living initially with your father and your counsel described you at the age of 16 after you had been working for your father for nine months as being, "Sixteen stone, using marijuana which came with the job, using alcohol and amphetamines."
It was around this time that you met a girl called Erin and you lived with her in Townsville before moving back to Seymour in Victoria. Ultimately because you were really both children, you grew out of that relationship. You had stayed only some nine months with your father before returning to Victoria.
After your relationship with Erin ceased, you became transient in your living, occasionally living with your mother when no other particular circumstances were available. There was a bungalow at your mother's house in Broadford, and it would appear, according to your counsel, you found, "A stash of dexamphetamine" that had been described as treatment for your hyperactivity when younger, which you had not taken, but had secreted away. You used that and continued to use it and according to your counsel's instructions that made you more stable as it is a treatment often used for hyperactivity attention deficit disorder.
At about the age of 17 or 18 you moved to Warragul where you were joined by a friend from Queensland and you became involved in the use of heroin. Heroin had the reverse effect upon you to many others in that it acted as a stimulant rather than as a sedative and that was the context in which you turned to theft and shoplifting in relation to supporting your heroin habit which had increased as time went by.
You received a suspended sentence and you continued to offend and breach that sentence and that is when you fled to Bowral in New South Wales. You became involved with a gang from Cabramatta who were professional thieves and you acquired a girlfriend by the name of Stacey. Both you and Stacey were addicted to heroin and involved with these gangs. Your girlfriend, Stacey, in due course, was charged with an offence of armed robbery and received a sentence of five years with a minimum of three and a half. You were not involved.
Whilst she was in custody she gave birth to your child, Tegan, who is now seven years of age. Tegan was, in fact, placed in the care of your girlfriend's mother not long after her birth.
You came back to Victoria, handed yourself in, and you served nine months for the breach. You went on a methadone program and by the end of the term you were free from your addiction. You returned to Kilmore to find work as a concreter and it was there in approximately 2002 that you first met Shellee Cornwell and you lived with her in Kilmore working when you found concreting work.
This relationship was interspersed with your time in custody and the resumption of your relationship with Stacey. Ms Cornwell left Kilmore in 2002 and moved to Whittington in Geelong where these events ultimately occurred.
You often returned to New South Wales to visit Stacey in prison and to visit your daughter who was with her grandmother at that stage. When Stacey was released on parole you and Stacey reconciled and as a result a second child, Isobella, was conceived. You moved around New South Wales ultimately settling in Moama to enable Stacey to comply with her parole conditions.
You say that as a result of an injury received in prison from being stabbed, you suffer pain in your lower back. As a result of that pain you say by the age of 27, you were again addicted to heroin. You were using it initially as a pain relief.
You ultimately ceased your relationship with Stacey in 2006 and were imprisoned again approximately nine months later.
It was upon your release from prison that you went to live with Ms Cornwell down in Whittington, but this did not last for long, as you reportedly did not like living in the city and you went back to Stacey. You broke up with Stacey again. You spent time in prison on an assault charge that was ultimately dismissed, and when you were finally released, you initially lived in Mildura and then, approximately three weeks before the murder, moved into the premises in Whittington.
You have used guns almost all of your life, commencing with a slug gun when you were aged five. You were given a .22 at eight or nine by your father, and you would go rabbiting with your father before he left, shooting with your cousins and uncle. Later you would to pig shooting when you were living with Stacey in Wagga. You purchased this gun and others after being released from prison on the last occasion, and you bought this gun with you to Whittington to take the boys rabbiting. You understand about guns. You understand how lethal they are.
I have received a report from Pamela Matthews, forensic psychologist, which, while useful in explaining some of your history and IQ levels, does not assist greatly with the problem of sentencing you for this tragic offence. She indicates that you may have a conduct disorder and also possibly ADHD, none of which are directly or even indirectly responsible for your actions in shooting the deceased man on this day.
The major mitigating factor is that you pleaded guilty to this offence, and have not put any of the witnesses through the ordeal of giving evidence, particularly in this case, Ms Ford, who now has very significant issues with alcohol and grief. The law requires that you receive a significant reduction in your sentence in acknowledgment of that fact. I also accept that that is an indicator of remorse for your actions on the day. I do not believe that there is a Verdins aspect to this case and, although I have no doubt that alcohol played a part in what occurred on the day in that it may have reduced your inhibitions or made you more angry, it does not reduce the sentence to be passed.
I will take into account and balance the factors to which I have earlier referred, including your plea of guilty, your prior criminal history, the need to impose a just and appropriate punishment, both personal and general deterrence, the impact that this offence has upon the family of the deceased, whilst also taking into account your personal circumstances and ensuring that the sentence is not crushing for a person of your age.
I direct that you are to be imprisoned for a period of 21 years, with a minimum of 17 years. Pursuant to s.6AAA, I declare that the sentence I would have imposed but for your plea of guilty would have been a sentence of 24 years, with a minimum of 20 years. I make the orders in respect of a forensic sample and forfeiture orders, and I declare that Mr Dean has spent 709 days in pre sentence detention, and such will be noted in the records of the court.
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