R v Morrison

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0203

THE QUEEN

SAMUEL MORRISON

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	25–29 August, 1–5, 8–10 September 2014
DATE OF SENTENCE:	7 November 2014
CASE MAY BE CITED AS:	R v Morrison
MEDIUM NEUTRAL CITATION:	[2014] VSC 674

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CRIMINAL LAW – Sentence – Murder and intentionally causing serious injury.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Williams QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Ms J Dixon QC with Mr P Smallwood	Kurnai Legal Practice

HIS HONOUR:

Samuel Morrison, on 25 August 2014, you pleaded guilty to Charge 1 on the indictment, that of causing injury intentionally to Lochlan McCowan on 22 February 2013, and I directed the entry of a verdict of guilty to that charge in the records of the Court.
On 10 September 2014, after a trial lasting 13 days, you were convicted of the murder of Dylan McCowan on 22 February 2013. On 17 November 2012, you were involved in an incident at the Commonwealth Hotel, Orbost. You suffered some injuries on that night, almost certainly in a dispute with the publican and staff of the Commonwealth Hotel. I accept that you were either drunk or significantly affected by alcohol on that occasion.
Although Ethan McCowan, the older brother of Lochlan McCowan and the younger brother of Dylan McCowan, had been present at the Hotel and witnessed the incident in which you were involved, he was not involved in it in any way. You apparently believed, from something you were told, that a member of the McCowan family, not Dylan, had been involved in the attack on you. You also believed that you had lost your keys in the incident. You did not ultimately contest infringement notices for being drunk and disorderly, and wilful damage arising out of that incident.
Between November 2012 and February 2013, there is no evidence to suggest that you were involved, in any way, with members of the McCowan family.
You told Associate Professor Andrew Carroll, who interviewed you on 21 May 2014 and who provided a report dated 22 May 2014, that you were afraid to leave your house in the months following the November incident. Dr Carroll was called to give evidence on your behalf during the trial, and I accepted the tender or further tender of his report on the plea.
At about 12.30 pm on 22 February 2013, Lochlan McCowan was walking past your house at 48 Reed Street, Orbost. He saw you in the front yard. After he had walked past the house, you approached him and asked him if he was Dylan McCowan’s little brother. When he replied yes to that, you struck him on the left-hand side of the face. He was then 18 years of age and the photographs taken later that day reveal he was a young, not very robust looking, 18 year old. He fell to the ground, he broke his wrist, and he suffered injuries to the side of his face and to a tooth.
Lochlan McCowan sought help from Tiffany Millard, who was Dylan McCowan’s partner. She came and gave him assistance and took him to her home, where she contacted her partner, Dylan. She told him what had happened.
Dylan, who had been on his way back home from work, arrived at home and took steps to attend to the medical needs of his brother, Lochlan, but eventually he went to your house, where he banged on the door. He was angry with you for the attack on his brother and he sought to have it out with you.
At a relatively early stage of events, you armed yourself with a knife. Dylan McCowan was unarmed at all stages of these events. Dylan McCowan had been admitted to the house by your friend, Maurice Duggan. It does not seem that you remained in the house for very long — that is, the three of you — although it is true to say that Dylan McCowan did not immediately leave the house on being told for you to do so. But the three of you moved out into the front yard.
There was some struggle in the front yard, the circumstances of which are not completely clear. There are great difficulties about the evidence of the witness, Maurice Duggan, and it is very difficult to rely on almost anything he said.
At some stage during the struggle, you received a slash-type wound across the chest. Dylan McCowan received stab wounds to his arms and to his back. The back wound, which penetrated his lung, was quite a serious one. Eventually, Dylan McCowan tried to leave the premises and walked towards his car with his back to you. You said, at least once and probably twice, words to that effect, “I’m going to kill you.”
You then came up behind Dylan McCowan and plunged your knife into his upper left shoulder. It caused a deep penetrating wound which was to prove fatal. Dylan, having first gone to his car, staggered across the road where he was assisted by the neighbours on that side of the street. In the next short period of time a number of people made calls trying to get an ambulance to come to the scene. You returned to the house, washed the knife, and concealed it in a pot full of earth on the back veranda.
You then left the house, and walked across the road where you kicked Dylan McCowan to the head with your bare foot, but forcefully. Subsequent to that, you expressed great concern for your own welfare, but very little, if any, concern for Mr McCowan. You were ultimately taken to the Bairnsdale Hospital, where you wound was sutured.
You were interviewed on the morning of 23 February 2013, and after some early denials of your involvement you accepted that you had killed Dylan McCowan, but basically said that you had acted in self-defence, and that it was Dylan McCowan who had been threatening you, not the other way round. In particular, you said that he had run at you. The seriousness of the crime of murder — which you have committed — overshadows the less serious offence against Lochlan McCowan, which would have been ordinarily dealt with in the Magistrates’ Court.
The importance of that conduct, however, is that it became the catalyst for what occurred later, and seems at least in part to contradict your claim of fear of outsiders. The conduct, however, was unwarranted and cowardly, and Lochlan McCowan did suffer a broken wrist and other injuries as a result of it.
On the plea, I received a number of Victim Impact Statements prepared by Lynette Dann, Dylan’s mother. That statement was provided on behalf of the extended Dann/McCowan family — it was on Lynne Dann’s own behalf, and that of her husband, Mark; her sons, Ethan and Lochlan; her daughter, Logan; her daughter-in-law, Tiffany; and Dylan’s children, Aliad and Kaylene. That document was measured and careful. It was very moving. It shows the inner strength of some, but the effect on all members of the family, and those effects have been very significant.
The effects on Lochlan have been very severe because he holds himself responsible for what happened to his brother, and requires intensive in-patient psychiatric treatment. He is not to blame in any way at all for anything that happened. Ethan and Logan are both struggling to get on with their lives as well. Such is the effect of needless offending such as this. This is yet another case which demonstrates how little we truly understand about the far reaching effects of criminal behaviour such as this. This killing was entirely pointless, and that very fact heightens the grief and suffering of the family, who are deprived of a son, brother, husband, and father.
Submissions were made on behalf of both the prosecution and defence as to where this particular crime of murder fits into the range of seriousness. It was submitted by the prosecution that the case fitted into the middle range of seriousness. It was submitted on your behalf that it was really to the lower end of the range of seriousness, because it was unplanned and reactive — it was reactive to the circumstances in which you found yourself when Dylan McCowan came to your house and aggressively forced his way in, and that the case should be viewed as an overreaction to the harm that you faced, or thought that you faced.
I am satisfied that this murder does fit in the middle range of seriousness. At the time he was killed, Dylan McCowan represented no threat to you — he was leaving, he was walking to his car. You were very angry and said that you would kill him. By the stage that he received his fatal wound he had already received a number of stab wounds, including the serious stab wound to the back which I have described.
After you threatened him, he turned once to face you, but again turned and was walking away from you. I do not entertain any doubt that he had his back to you at the time that you stabbed him. At the time you stabbed him you either intended to kill him, or at the very least to cause him really serious injury (a distinction which is of no real significance in this case).
Although you were angry, you were not out of control. After stabbing Dylan McCowan, and having caused what I have no doubt you knew was a pretty serious injury, you returned to the house, washed the knife, and concealed it. You did not seek to make any arrangement to help your victim, and after attempting to cover your tracks you went outside, crossed the road and kicked Dylan McCowan to the head, albeit with a bare foot. You called Mr McCowan a fucking dickhead. And as I have already observed, after that you expressed only concern for your own welfare and asked to be taken to hospital.
You are Aboriginal, now 30 years of age. You’ve been on a disability support pension since 2001, when your brother committed suicide. You have been receiving treatment for mental health issues throughout that time. Yours has been a difficult upbringing. Your mother left your father in Adelaide when you were two or three, and took you and your sister, Jasmine, and your brother, Gerald, to live in Marlo in far eastern Victoria. You were living there with your aunt. Your father had been violent to your mother, which caused her to leave.
Your life in Marlo was difficult. Your mother had become a heavy drinker and your Aboriginality was an issue. When you were about nine, your mother commenced a relationship with your step-father, Des. Although that relationship continues, and now appears to be a relatively straightforward and loving relationship, it was also marked by episodes of violence and the family circumstances were economically difficult in almost all ways, including housing. Your relationship with your brother Gerald was a very important one to you. You completed schooling to Year 11 but your schooling was largely unsatisfactory, a time you apparently did not enjoy.
In 2001, after Gerald had left home, he unfortunately committed suicide. It was not long after that that you commenced to show symptoms of mental illness and you were at about that time diagnosed with schizophrenia and were treated for schizophrenia over a long period of time. After you settled into your own accommodation in Reed Street, you in fact found out that you had a son. His name is Cohen, he’s now 12. Your mother has the custody of Cohen but you do not see him. You have now found out that your father has been convicted of the murder of his girlfriend and he now writes to you and you to him. That relationship, for very obvious reasons, is very difficult and you have a sense of abandonment about it, not surprisingly. Your father played no part in your upbringing. You have a good relationship with your step-father, Des, and you are quite distressed and concerned by the fact that he’s been diagnosed with terminal lung cancer and is now receiving chemotherapy.
You are supported by your mother and step-father, who attended your trial every day. Your sister, Jasmine, and family friend, Neil McDougall, also give you their support. I received letters from both your sister and Mr McDougall on the plea. You have a significant history of alcohol and substance abuse. In his report, Associate Professor Carroll said:
Diagnostically, there is no strong evidence that he suffers from a schizophrenic illness. His psychotic symptoms in his late teens are indeed consistent with a drug-induced psychotic episode. Given however that he has remained on antipsychotic treatment ever since, it would not be entirely possible to exclude the possibility of an underlying schizophrenic illness in the absence of a trial without medication.
He certainly suffers with dysfunctional personality traits, and is in my opinion diagnosable with a borderline personality disorder, likely secondary to a combination of inherited temperamental factors and his developmental history of abandonment and exposure to childhood trauma. Consistent with this diagnosis, he reported long-term problems with unstable mood and there is evidence of poor impulse control, a tendency to non-delusional persecutory thinking when under stress and reckless impulsive behaviours, primarily in the form of substance misuse. It is notable that antipsychotic medications (both zucopenthixol and olanzapine) are known to be helpful in helping to ameliorate the behavioural manifestations of borderline personality disorder.
These problems have of course been compounded by his substance use disorders, which appear to be in remission in a controlled environment in the context of methadone treatment.
Currently, his symptoms of anxiety and low mood mean that he would be appropriately diagnosed which chronic adjustment disorder with mixed features of anxiety and depressed mood. His level of functioning within the prison context is not consistent with a full-blown depressive illness or generalised anxiety disorder.
At the time of alleged homicide, both his borderline personality disorder and his substance use disorders were active clinical problems.[1]
Associate Professor Carroll went on to say:
At the time of the alleged homicide, his poor impulse control and emotional instability secondary to his personality disorder would have adversely affected his mental capacity. As noted above, his personality-based propensity for anxiety about his personal safety and persecutory thinking had clearly been exacerbated by the incident in the previous November, and prior experiences of victimisation in 2009, such that he was hypersensitive to the possibility of intruders coming into his home. When his fears were realised, and (if his account is to be accepted) his life was direly threatened by an unexpected intruder into his house, he appears to have abruptly entered into a state of intense acute anxiety amounting to panic, whereby he was physiologically hyper-aroused and felt in acute fear of his life. Based on his own account, it appears that he was of the belief at the relevant time that if he did not kill the victim then he himself would be killed.
His personality disorder makes him vulnerable to acute over arousal in the face of stress; sufferers of borderline personality disorder have particular difficulties in controlling emotional reactions. His acute panic reaction when faced with the threat of an intruder is consistent with this. This panic reaction would have impaired his capacity to make decisions and appropriate judgments in a calm and reasonable fashion, and led to a degree of disinhibition.
His propensity for anxiety and persecutory thinking would have been further exacerbated by his persistent cannabis misuse, and heavy alcohol use. Both of these substances, when used in the quantity he describes, would certainly worsen an already limited capacity for emotional regulation. Furthermore, his usage of alcohol and cannabis on the day in question would have contributed to his propensity for disinhibited behaviour.[2]
[1]Report of Associate Professor Carroll dated 22 May 2014, [66]–[70].
[2]Ibid [77]–[79].
However, in my opinion there’s a slight air of unreality to these aspects of the case. That is, the aspects of the case that it is suggested that you have a personality disorder which leads you to react in an aberrant way to matters of not significant provocation, for want of a better expression.
You have told Dr Carroll that you had been afraid to leave your own house over the few months preceding these events, and that you feared home invasion, most apparently on the loss of your keys. But it appears that nothing had occurred of that kind in the three months from November 2012 to February 2013. Yet in that context, when the opportunity arose to confront a member of the McCowan Family, you chose to attack Lochlan McCowan, a younger and smaller member of the McCowan Family. It does not bespeak fear.
It is true to say that Dylan McCowan came to your house to confront you, and it’s reasonable to assume he was reasonably angry. But you chose to deal with that by the production of a knife.
That may or may not have been justified, but the reason for the presence of Dylan McCowan at your house, at that time on that day, was perfectly clear, and clear to you. It does not seem, and could not seem, to have anything to do with the prior incident, but it is plainly connected to your cowardly attack on Lochlan McCowan and must have been perceived by you to be so.
Mr McCowan did leave the house, and at the point everyone left the house there does not appear, or appear to be suggested, that any injury had been inflicted upon you before that happened. In the fight or fights which ensued, you suffered an injury, partly at your own hand. You had the knife and Mr McCowan suffered a number of injuries, one of which was serious and one of which was fatal.
I accept, as the jury must have, that at the time of the killing you were not acting in self-defence. It follows that the jury accepted that such mental disorder from which you may have suffered did not lead you to kill Dylan McCowan believing it was necessary to do so in self-defence. It does not follow that your personality disorder is irrelevant, but that causal connection between it and the killing is at least tenuous. It may be that it got you in the position of the fight with the knife more readily than it might otherwise have been so, but at the time of the killing you did not believe that it was necessary to kill Mr McCowan in self-defence.
Your disorder entitles you to some reduction in your moral responsibility because of its underlying relationship to the offending. I should say that I am not satisfied that your apparent distress after these events was necessarily genuine, except to the degree that it was a manifestation of self-pity. It does not fit at all with your conduct immediately after the stabbing.
It cannot be that the jury rejected self-defence because your conduct was disproportionate. The jury accepted beyond reasonable doubt that you did not believe it was necessary to do what you did in self-defence.
I am satisfied that you are a candidate for both general and specific deterrence, but because of your underlying impairment to your functioning, those matters have to be mitigated. I am also satisfied that imprisonment will weigh more heavily upon you because of that feature, and because of a number of matters arising out of your disadvantaged background.
I accept that you have a greatly disadvantaged background, particularly in your formative years, and I have taken that into account. Accepting the way your alcohol and drug consumption has contributed to your impaired functioning related to your personality disorder, I do not regard it as being otherwise relevant. It does not appear to have played any particular part, except in that more general sense, in what happened on this day.
You have prior convictions, nearly all of which appear to be alcohol-related. The only convictions which you have for violence-related behavior are convictions for assaulting police and resisting police, and they are both quite old. I do not regard your prior convictions of any great relevance to the sentence that I am going to impose upon you.

I was urged to take into account, on your behalf, the fact that you suffered an injury in these events. Since you introduced the knife and never lost possession of it, any injury which you may have received in the struggle does not act, in my view, in mitigation of sentence.
I am satisfied that you are remorseful for your actions, and though I think much of that is borne out of self-pity, nonetheless I think you are genuinely sorry for the death of Dylan McCowan.
You relayed a letter to me which was read to the court, which did express feelings of remorse and regret relating to Dylan McCowan and his family. But in that letter, you used expressions such as “fight for survival”, “It would not have happened if Dylan did not threaten my life”, and later you said, “Think what you want of me, but I’m not a murderer”. That is why I have described your remorse in the way that I have.
I am obliged to consider your prospects of rehabilitation. You are about to be imprisoned for a long time, but the sentences I impose will still provide you with a significant life expectation after release.
What you do with your life will depend to a large degree on what you do with such opportunities that you may have whilst you are in prison. It is encouraging that you have completed courses, and applied for admission to many others. Mr McDougall has seen favourable signs about you, and I accept the positive things that he said in his letter. But I do have some reservations based on the letter that you wrote to me. It seems to me from what I observed during the trial, from what you told Associate Professor Carroll, and what you told the police, that it is your attitude to blame others for the strife that you have caused. Even the events of 20 November 2012 demonstrate this attitude, that it must be somebody else’s fault, it could not be yours.
In your letter you say nothing about your attack on Lochlan McCowan, your production of the knife, and the wrong that you place is all wrong by Dylan McCowan. You are a murderer, and unless you come to grips with, and accept the reasons for that, and for what you have done, your prospect of rehabilitation will be diminished. It goes almost without saying that your further prospects will depend on your ability to avoid alcohol and illicit drugs, and may well in part depend on you taking such medication as is prescribed for you.
For completeness I should say that I have also received a report from neuropsychologist Susan Carey dated 30 October 2014. That report was necessary because there was a possibility that you had a brain injury. That does not appear to be so. In the result Ms Carey had nothing really to add to what had already been said by Associate Professor Carroll, and I was not urged on the plea to give it any particular weight, apart from its relationship with what had already been said by the Professor.
Your offending is serious. The attack on Lochlan McCowan was cowardly and in its context destined to cause further trouble. Your killing of Dylan McCowan most of all was pointless and unnecessary in all of the circumstances. In sentencing you I am obliged to have regard to just punishment, and both specific and general deterrence in the way that I have described earlier in these reasons. I have taken into account all of the matters put on your behalf, in the way that I have set out also in these reasons.
On the charge of intentionally causing serious injury to Lochlan McCowan you are sentenced to be imprisoned for 12 months.
On the charge of the murder of Dylan McCowan you are sentenced to be imprisoned for 19 years and six months. I order that six months of the sentence on Charge 1 be served cumulatively upon the sentence on Charge 2. That is a total effective sentence of 20 years.
I order that you serve 16 years and six months before being eligible for parole. I fix that period of parole on the basis that I regard it as being an appropriate time if you are released at that date for the Parole Board to assist you in your rehabilitation.
I declare that you have served 623 days pre-sentence detention. I indicate that had it not been for your plea of guilty on Charge 1, I would have sentenced you to be imprisoned for 15 months. I direct that the above declaration and indication be entered in the records of the court.

[2014] VSC 674

7 November 2014