R v Cotterill [2012] NSWSC 89

Supreme Court New South Wales

Medium Neutral Citation: R v Cotterill [2012] NSWSC 89 Hearing dates: 9 December 2011 Decision date: 17 February 2012 Before: McCallum J Decision: For the offence of murder, offender convicted and sentenced to a term of imprisonment with a non-parole period of 16 years commencing on 30 March 2010 and concluding on 29 March 2026 and a balance of term of 6 years concluding on 29 March 2032. For the offence of escaping from lawful custody, offender convicted and sentenced to imprisonment for a fixed term of six months commencing on 30 March 2026 and concluding on 29 September 2026. Catchwords: CRIME - sentence - murder - escaping from lawful custody Legislation Cited: Crimes Act 1990 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Markarian v The Queen (2005) CLR 357 Muldrock v R [2011] HCA 39 R v Borkowski [2009] NSWCCA 102 R v Daetz [2003] NSWCCA 216 R v MAK (2006) 167 A Crim R 159 R v Plummer [2000] NSWCCA 363 R v Previtera (1997) 94 A Crim R 76 R v Webb 149 A Crim R 167 Category: Sentence Parties: Crown Luke John Cotterill Representation: P Barnett (Crown) S Hanley (Offender) Office of Director of Public Prosecutions (Crown) Legal Aid (Offender) File Number(s): 2010/80165 2010/134143 Publication restriction: None

Judgment 1The offender, Luke Cotterill, stands to be sentenced for the murder of Michelle Morrissey. He is also to be sentenced for escaping from lawful custody several days after his arrest for the murder. The offender pleaded guilty to both charges upon his arraignment in this Court. Apart from the period of his escape, which was a matter of moments, he has been in custody since his arrest on 30 March 2010. 2The maximum penalty for the offence of murder is imprisonment for life: section 19A of the Crimes Act 1900. A standard non-parole period of twenty years is prescribed for that offence under section 54A of the Crimes (Sentencing Procedure) Act 1999. Section 61(1) of the Crimes (Sentencing Procedure) Act requires the Court to impose a life sentence for an offence of murder if satisfied that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. The Crown did not contend that the present offence falls within the strictures of that section and I am not satisfied that it does. 3The maximum penalty for the offence of escaping from lawful custody is imprisonment for 10 years: section 310D of the Crimes Act . There is no standard non-parole period prescribed for that offence. Any sentence of imprisonment for that offence must be imposed after, and served consecutively with, the sentence imposed for the offence of murder (meaning the non-parole period fixed in respect of that offence): section 57 of the Crimes (Sentencing Procedure) Act . 4At the proceedings on sentence, victim impact statements were provided to the Court from Ms Morrissey's sister and grandfather and from her mother, Mrs Sue Morrissey. Mrs Morrissey read her statement to the Court. It eloquently revealed the unfathomable pain caused by the senseless killing of her daughter. It is important to note that the Court is not permitted in this case to take the victim impact statements into account in determining the sentence to be imposed on the offender, for the reasons explained by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 79 at 86. The statements received nonetheless afford the Court the opportunity to acknowledge the devastating impact of the offence on those who knew and loved Michelle Morrissey and the courage with which they have faced her death. 5The murder was committed on the afternoon of Saturday, 27 March 2010. Ms Morrissey was then aged 19 years. She had returned to her home in Mudgee from her place of work at a local real estate agency at about 3pm that afternoon. She was expected either to join her family in Dubbo or to attend a function in Mudgee with her partner later that day. 6After persistent attempts to contact Ms Morrissey by telephone that afternoon, her partner drove to her home, where he found the back door open. He found Ms Morrissey dead in the kitchen. 7The only direct account as to how Ms Morrissey was killed comes from the offender. He had travelled to Mudgee the previous day with his partner to attend a children's party. He was staying with his cousin in Mudgee. On the afternoon of the offence, the offender and his cousin returned to the place where the party had been held to collect the children, who had stayed there overnight. The offender left with two of the children but, at some point, parted company with them. It was evidently shortly after the offender left the company of the two children that he committed the murder. 8After later becoming aware that police were searching for him, the offender told his aunt that he had stopped in at a house on his way home to use the bathroom. He said he thought it was the house where "the girl was murdered". After watching a videotape with his aunt of a news report covering the murder, he confirmed that was the house he had been to and that he had spoken to the girl depicted in the video. He said he had also spoken to a neighbour and had admitted to going into the house to use the toilet. The offender told his aunt that the girl had just arrived home when he met her at the property and was still alive when he left. He said that he "didn't do it" and "was innocent". 9Upon his arrest, the offender initially told police the same story. However, on the way to Mudgee Police Station, he told police that he had lied when first spoken to because his partner was present. He then told police that the girl in the house was in fact dead when he arrived at the property. The offender claimed that he got blood on his shoes as he stood over her body. He said that, after checking her neck and finding no pulse, he "freaked out" and ran down the train tracks, in the process of which he twisted his ankle. 10On arrival at the police station the offender took part in an electronically recorded interview. During that interview, he provided further details as to his second version of events. He said that he had gone to the house and knocked on the front door. After hearing a noise from the back of the house he went to the back door and found it open. He said he went inside and found Ms Morrissey. He claimed that, after rolling her over and checking for a pulse, he got a cloth from the sink and wiped the floor. 11The offender told police that he then went to the bathroom and washed his hands. He said that he did not call "000" as he "freaked out". He said he did not tell his cousin or her partner what had happened when he returned to their house later that afternoon as he thought he might have been hallucinating. The offender denied entering Ms Morrissey's house with the intention of stealing goods. He denied having a knife when he entered or left the property. Police later found a knife in the kitchen sink at the house where the offender was staying which was identified as having come from Ms Morrissey's house. 12On 3 April 2010, whilst being transported from Bathurst gaol to Sydney, the offender reportedly told other inmates that he had been casing Ms Morrissey's house with a view to breaking in to steal something. He said that when he went into the house, he was confronted by Ms Morrissey and that he had stabbed her. He said he was unsure how often he had stabbed her as he had "blacked out". He said that he later took the knife to his cousin's house, washed it and placed it in a drawer. 13Several months later, the offender told his mother that he was acting "loopy". He said he would attempt to have the charge of murder reduced to manslaughter on the basis that he had been hit on the face as a child, causing him to have blackouts. He told his mother that, on the day of the offence, he had been casing the house with a view to break in. He said that, when he entered the house, he was confronted by a woman who called him a "creep" and slapped him. He gave a similar account to Dr Westmore, a psychiatrist who prepared a report for the purpose of the proceedings. 14The next memory the offender said he had was of standing over Ms Morrissey's body with a knife in his hand. He told his mother that he had no memory of an attack as he had "blacked out". During that conversation, the offender attempted unsuccessfully to recruit his mother's assistance to support him in his allegations of childhood mistreatment. 15I am not persuaded that Ms Morrissey insulted the offender or slapped him, as he has said. It seems unlikely that she would have reacted in that way to the presence of an intruder in her home. However, even if she did, I do not think that reduces the offender's culpability in any degree. 16The gaps in the offender's account are to some extent filled by the forensic evidence in the case. There were indications of a struggle in the family room. The report of the forensic pathologist, Dr Nadesan, establishes that the injuries sustained by the deceased were brutal and extensive. She had twenty-seven stab wounds to the neck, face, chest and abdomen. There were multiple contusions to the face and both sides of the head which were considered by the pathologist to have been caused by heavy blunt force trauma such as punching or kicking. 17I am satisfied beyond reasonable doubt that the deceased was subjected to two distinct knife attacks separated by the movement of the body from the base of the stairs to the kitchen area, as submitted on behalf of the Crown. An analysis of the bloodstain patterns found at the home of the deceased was undertaken by a Crime Scene Officer, Acting Senior Sergeant Debbie Veness. Her evidence, considered together with the report of the pathologist, has persuaded me that the deceased was first attacked with the knife in the area of the family room at the foot of the stairs and then dragged to the kitchen where she was attacked further. 18The Crown case against the offender appears to have been strong. Apart from the offender's admissions to which I have already referred, fingerprint analysis revealed the offender's left palm impression on the stairwell and various finger impressions in the kitchen area. All of the prints were in blood. Shoe impressions found at the scene matched the offender's shoes. DNA evidence matching the profile of the offender was found on the palm and forearm of the deceased and the leg of the jeans she was wearing. 19It must nonetheless be acknowledged that the offender's pleas of guilty have substantial utilitarian value and have obviated the need for what would have been an extremely distressing trial. The offender is accordingly entitled to a reduction in the sentence that would otherwise have been imposed to reflect the utilitarian value of the pleas. The pleas having been entered upon arraignment, I consider that the reduction should be in the order of 15%: R v Borkowski [2009] NSWCCA 102 at [31] per Howie J. 20I am satisfied beyond reasonable doubt that the offender intended to kill Ms Morrissey. The forensic evidence admits of no other conclusion. That is plainly a matter that renders the offence more serious. The seriousness of the offence is further exacerbated by the fact that it was committed in the deceased's home by an unwelcome intruder who, by his own admission, had entered the house for the purpose of stealing. 21A further aggravating feature of the offence is the extreme degree of violence involved. The killing of Michelle Morrissey was callous, brutal and senseless. She was subjected to a sustained and ferocious attack in her own home with both blunt force and a knife. There is some small mercy in the suggestion in the evidence of the forensic pathologist that she was probably rendered unconscious early in the attack. She must nonetheless have died in a state of pain and absolute terror. 22The Crown submitted that the offence should be regarded as one committed by a dangerous and violent individual but nonetheless accepted that the offender's conduct was reactive and was not planned or premeditated. It will be necessary to return to those issues in the context of the psychiatric evidence before the Court. 23The offence of escaping from lawful custody was committed on 3 April 2010, several days after the offender was arrested for the murder and remanded in custody with bail refused. The offender was due to be transported from Bathurst to Sydney. When boarding the truck, he asked other inmates for advice as to how he would be able to escape. 24The truck stopped at Lithgow Correctional Centre for a break at around 11am. During the break, some of the other inmates told their escorts that the offender had been discussing his role in the murder. They indicated that he might be at risk of being assaulted, as other inmates had evidently taken exception to his attitude to the offence. As a result of those reports, the offender was placed in a segregated section of the truck. 25After the truck left Lithgow Correctional Centre, the offender was observed on an on-board camera apparently attempting self-harm. Correctional Services Officers noted that he was motionless and had an item of clothing wrapped around his neck. They stopped the truck near the village of Hartley and opened the rear door of the van. They found the offender in what they believed to be an incoherent state. They told him to remove his clothing so as to prevent any further self-harm. For that purpose, the offender was released from his handcuffs. 26After the handcuffs had been removed, the offender pushed an officer in the chest, causing him to stumble. The offender then jumped from the truck and ran. A Corrective Services Officer warned the offender to stop running but he continued. The officer then shot him in the arm. He continued to run and the officer fired two further shots, striking the offender in the pelvic region and in the leg. The officer later estimated that the offender had travelled approximately six metres before he succumbed to the third gunshot. 27The offender fell to the ground and was re-captured and handcuffed. He was taken away by ambulance and later underwent surgery. He told police investigating the incident that he had run from the truck in an attempt to inflict self-harm by running in front of a moving vehicle. On 5 May 2010, the offender was interviewed regarding the incident. In the interview he admitted attempting to hang himself, pushing a guard away and running onto the highway. He claimed he acted in this way to ensure that he would be hit by a car as it would be "a lot quicker". He said his intention had been to kill himself. 28The determination of the appropriate sentence to be imposed for the murder of Michelle Morrissey is guided by both the maximum penalty of life imprisonment and the standard non-parole period prescribed for the offence. 29I have regard to the fact that, in accordance with the statute, twenty years is the non-parole period for an offence of murder in the middle of the range of objective seriousness. As recently explained by the High Court, the guidance afforded by that statutory fact is informed only by reference to the nature of the offending, without reference to matters personal to the offender: Muldrock v R [2011] HCA 39 at [27]. The offence in the middle of the range is hypothetical and does not comprehend the range of factors relevant to sentencing in the individual case before the Court: at [31]. Accordingly, contrary to a line of appellate authority preceding the decision in Muldrock , the Court is not required to assess whether the individual offence under consideration is within the mid-range of objective seriousness: see Muldrock at [25] and [29]. 30It nonetheless remains an important aspect of the sentencing task to assess the objective seriousness of the offence, which may include consideration of circumstances personal to the offender that are causally connected to the commission of the offence. I do not understand the decision of the High Court in Muldrock to hold otherwise. 31The task is to identify and consider all the factors relevant to the sentence (including any relevant aggravating and mitigating factors listed in s 21A of the Crimes (Sentencing Procedure) Act ) and to make a value judgment as to the appropriate sentence given all the factors of the case: Muldrock at [26], citing Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J. The statutory specification of a standard non-parole period is one of the relevant factors but is not to be taken as the starting point in determining the appropriate sentence. 32I have already addressed the factors of aggravation relevant to my assessment. It is also necessary to consider whether there are any factors that mitigate the seriousness of the offence. 33As accepted by the Crown, the offence was not planned or premeditated. I am satisfied that the offender's decision to enter the house was spontaneous and that his conduct was reactive, probably reflecting surprise at finding a person in the house. 34The offender has a significant history of behavioural difficulties which are well documented in the material before the Court. He had a childhood of relative instability. From an early age he displayed difficulty with anger and impulse control. When he was just 10 years old, his teachers reported that he displayed physical aggression towards others including biting and kicking whilst under restraint, throwing furniture, kicking others who passed him, using sticks to swipe at other students, physical violence against other students and swearing at staff and students. 35When the offender was 12 years old he was diagnosed with multiple learning and behavioural difficulties. His mother held fears at times for the safety of others in his presence. He was described as having aggressive outbursts. He has been diagnosed with ADHD, oppositional defiant disorder, learning difficulties, substance abuse and alcohol abuse. 36A report by Dr Bruce Westmore, a forensic psychiatrist, was tendered on behalf of the offender. I accept, as submitted on behalf of the Crown, that the report must be considered with some caution, since it is based on self-reporting by the offender. However, Dr Westmore was also able to rely upon other historical material provided to him by the offender's solicitor. 37Dr Westmore concluded from that material that the offender was severely disturbed as a child and as an adolescent. He noted that the offender was raised in a highly dysfunctional family dynamic which allegedly included violence at the hands of his stepfather from the age of six. 38Dr Westmore identified no psychotic symptoms in the offender. He noted the offender's statement that he blacked out and could not remember the offence. Dr Westmore considered the possibility of a dissociative state or episode but noted that there was no clear previous history of the offender suffering dissociative episodes. He suggested that might be considered unusual if he did have a dissociative episode when he killed the victim. 39Dr Westmore concluded that the offender did not "qualify" for a defence of mental illness or substantial impairment. He expressed the belief that, although the account given by the offender suggested a degree of loss of control at the time of the offence, the emotion driving that loss of control was anger rather than any underlying abnormality of the mind. Dr Westmore said that cannabis use by the offender may have led to a loss of inhibition and that there may have been some component of impaired cognition and impairment of mood regulation at the time of the offence. 40Competing submissions were put as to significance of those matters in determining sentence. The Crown submitted that nothing in the report of Dr Westmore should be regarded as being relevant to the assessment of the objective seriousness of the offence, other than the offender's propensity for sudden and uncontrolled violence. He submitted that the offender's history of aggression and explosive violence demonstrates that he is a "dangerous person". The Crown submitted that the Court accordingly could not find any mitigation of the offence in the offender's past history. 41The Crown did not, however, seek any finding as to future dangerousness. On that issue the Crown submitted, both fairly and correctly in my view, that the length of time the offender will be in prison and the availability of constant psychiatric and psychological assistance during that time mean that any attempt to assess whether he might be dangerous upon his release back into the community would be "more academic than useful" at the present time. 42The Crown submitted, however, that in light of the offender's history, the Court could not be satisfied that he is unlikely to re-offend. I accept that submission. 43On behalf of the offender, it was submitted that the history of behavioural difficulties can not be taken into account as a factor that exacerbates the objective seriousness of the offence. In my view, that is plainly right. I did not understand the Crown to suggest otherwise. 44It was further submitted that the offender's history should be taken into account as a mitigating factor in that it points to the conclusion that the offence was a "spontaneous and uncontrollable display of violence". It was submitted that the objective seriousness of the offence was less on that account. 45In considering that issue, I have had regard to the fact that the psychiatric and psychological material before the Court strongly supports the conclusion that, by reason of his severe behavioural and psychological difficulties, the offender is ill-equipped psychologically to control his anger and impulsive behaviour. The report of Dr Westmore supports the conclusion that those shortcomings may have been exacerbated by the offender's use of cannabis. I think it would be wrong to disregard those considerations altogether in assessing the seriousness of the offender's conduct. I am satisfied that the seriousness of the offence is mitigated to some slight degree by the offender's impaired control due to his several psychiatric disorders. However, that factor must not be allowed to overwhelm proper consideration of the ferocity of the attack and the fact that a life was taken. 46The offender can not be said to be a person of good character. He has committed prior offences, including offences of violence. However, I note that all of those offences were committed when the offender was under the age of eighteen. Before his arrest for the present matters, he had not spent any extended period of time in custody. 47An important consideration is the fact that the offender was a young man at the time of the offences, being aged only 18 years and 9 months. Although that is not a mitigating factor, it is significant in considering his culpability for the offences. 48I cannot form any view as to the offender's prospects of future rehabilitation. The complexity of his behavioural difficulties and the need for extensive future psychiatric and psychological care identified by Dr Westmore preclude any reliable assessment of that issue. 49It was noted on behalf of the offender that, in light of his youth at the time of the offence, the Court must be astute not to impose a sentence that is "crushing" or of such severity as to hinder the offender's prospects of rehabilitation. The Court of Criminal Appeal has acknowledged the importance of that consideration: R v MAK (2006) 167 A Crim R 159 at [17]. I have endeavoured to give it some reflection in the sentences to be imposed and the structure of those sentences. 50Given the offender's actions and conversations after his arrest, and the strong case against him, it is difficult to view his pleas of guilty as a demonstration of any remorse. The evidence does not sustain the conclusion that the offender is remorseful. 51In respect of the count of escaping from lawful custody, the Crown acknowledged that the seriousness of the offending was at the lower end of the scale. 52The offender was shot three times during his escape. He underwent major surgery to treat those injuries including a partial hemicolectomy and the insertion of a femoral nail. He suffers ongoing pain and disabilities as a result of the injuries. It was submitted on his behalf that those matters amount to extra-curial punishment which may be viewed as a mitigating factor in the exercise of the Court's sentencing discretion. That is the approach that has been taken in the analogous case of an offender shot in the course of arrest: R v Daetz [2003] NSWCCA 216, R v Webb 149 A Crim R 167. 53Although, technically speaking, the offender enjoyed a brief period of liberty following his escape, all that happened during that time was that he ran six metres and was shot three times. The objective seriousness of an offence of escape is greater in the case of an offender who remains at large for a significant period of time. That is because of the time and resources of prison staff and police consumed in the recapture: R v Plummer [2000] NSWCCA 363. 54I accept, however, that the statute evinces a clear intention that prisoners should be made to understand that an escape will lead to an increase in the time spent in custody. I consider a fixed term of 6 months imprisonment appropriate in all the circumstances. 55In respect of the offence of murder, I am satisfied that there are special circumstances such as to warrant a slight adjustment to the statutory ratio between the balance of term and the non-parole period I propose to fix. Although the length of the sentence I am about to impose might ordinarily be thought to provide an adequate period of supervision, the offender's history of behavioural difficulties and the fact that he will necessarily be released into a community in which he will have spent almost no time as an adult point to the likelihood that he will need supervision for a substantial period of time. I also have regard to the fact that he is required to serve the term of imprisonment for the offence of escaping from lawful custody after the conclusion of the non-parole period fixed for the offence of murder. 56In all the circumstances I consider that the appropriate sentence for the murder of Michelle Morrissey is a term of imprisonment of twenty-two years with a non-parole period of sixteen years and a balance of term of six years. In accordance with section 57 of the Crimes (Sentencing Procedure) Act , the fixed term of six months imprisonment for the offence of escaping from lawful custody will be served after the conclusion of the non-parole period for the offence of murder. 57The effect of those sentences will be that the offender will not be eligible for release to parole for a period of sixteen years and six months from the commencement of his sentence. 58Luke Cotterill, for the murder of Michelle Morrissey I sentence you to imprisonment with a non-parole period of sixteen years commencing on 30 March 2010 and concluding on 29 March 2026 and a balance of term of six years concluding on 29 March 2032. For the offence of escaping from lawful custody I sentence you to a fixed term of imprisonment for six months commencing on 30 March 2026 and concluding on 29 September 2026. The first date on which you will be eligible for release to parole is 29 September 2026.