HIDDEN AJ: The applicant, Tamekah Rose Morgan, pleaded guilty in the District Court to a charge of specially aggravated break, enter and commit an indictable offence, namely reckless wounding: an offence under s 112(3) of the Crimes Act 1900, carrying a maximum sentence of 25 years imprisonment and a standard non-parole period of 7 years. The circumstance of special aggravation was the intentional wounding of the victim. She was sentenced to imprisonment for 6 years and 3 months with a non-parole period of 2 years and 9 months. She seeks leave to appeal against that sentence on the ground that it is manifestly excessive.
[2]
Facts
The applicant and the victim of the offence (a woman) had been living in an intimate relationship at the victim's home in Griffith. The victim had two children. Some weeks prior to the commission of the offence the relationship had broken down, but the victim allowed the applicant to continue to live there.
On 3 October 2014, the victim observed that the applicant had become drunk and argumentative. Put shortly, there was an argument which developed into a physical altercation. The victim pushed the applicant, who fell over a couch. The applicant then assaulted the victim, wrestling with her and punching and kicking her. At one point the victim was lying on her back with the applicant on top of her and the victim could not breath and was panicking. In the victim's words, the applicant was "ranting about the relationship", saying that she wanted to "be with" the victim.
The victim heard her infant child crying in her bedroom, and the applicant got off her so that she could attend to her child. The victim went to the bedroom and used two butter knives to secure the door from the inside. The applicant yelled to her from outside, demanding to know if she was phoning the police. The victim said that she had not, but that she would so if the applicant did not leave within a specified time.
The victim then heard a loud bang, and saw the bedroom door break open and swing inwards. The applicant ran into the room, holding a knife. The victim was holding her infant child and turned away from the applicant to shield the child. The applicant stabbed her once to the right side of her lower back. It is accepted that at this point the applicant did not see that the victim was holding her child. The victim placed the infant on the bed, knowing that the applicant would not hurt him, and jumped out the bedroom window. The applicant chased her, and began hitting and choking her. Further stab wounds were inflicted, although the victim has no specific memory of them as the event happened so quickly. The victim called for help, some people eventually came to her assistance and she called 000.
As a result of the prolonged assault, the victim sustained stab wounds to her right buttock and both upper arms, laceration of her left wrist, multiple scratch marks over the neck and pain in her right shoulder.
[3]
Subjective Case
The applicant was 22 years old at the time of the offence and is now 24. Prior to the offence her criminal history comprised only a driving matter. Subsequently, however, she was convicted and placed on a bond for contravening an apprehended domestic violence order. This arose from her conduct towards the victim after her arrest and release on bail. Between 5 and 11 November 2014, in breach of a condition of an interim apprehended domestic violence order that she have no contact with the victim, she sent the victim a series of text messages which, in emphatic and colourful language, pleaded for the resumption of the relationship and conveyed her emotional dependence upon the victim. This contact would appear also to have been in breach of her bail conditions.
Notwithstanding this, the sentencing judge did not see her criminal history as of any significance, and accepted that she was "generally a person of good character."
The applicant had a troubled background, detailed in a psychological report which was before his Honour. She is Aboriginal. From an early age she witnessed domestic violence between her parents prior to their separation. She reported to the psychologist that she had experienced sexual abuse over a period of years at the hands of three male relatives and the uncle of a friend. She also experienced the death of four close family members, two of whom had suicided. She spent a considerable amount of her childhood travelling between her parents, and in the care of the Department of Community Services.
She had been a disruptive and unmotivated student at school, leaving in year 10. She had had little employment. From her late teens she had abused alcohol and a variety of drugs. In her mid-teens she began self-harming and made a number of attempts to take her own life, and was diagnosed with anxiety, depression and a borderline personality disorder.
Psychiatric assessment found the applicant to be below average intelligence and to have a schizoid personality type with associated features, the combination of which suggests an individual who, among other things, is deficient in their capacity to experience emotions, detached and indifferent towards others, and likely to find "relationships sufficiently painful and have withdrawn to such an extent that they rarely interact and become relatively isolated." They may feel that "interpersonal situations are potentially dangerous and often experience frequent rejection, resulting in psychopathology such as anxious arousal and depression."
The psychologist expressed the opinion that the applicant was not developmentally disabled, nor suffering from a mental illness, at the time of the offence. However, she saw her turbulent history as having "negatively affected her mental health." She noted the development of early symptoms of borderline personality disorder, "including impulsivity and instability of behaviours, turbulent interpersonal relationships, and distorted self image."
The psychologist continued:
"She also appears to have developed an intense fear of abandonment, anger and irritability. This was outwardly manifest in self-harm, suicidal behaviours and substance abuse. Consequently, at the time of her index offence, Ms Morgan likely felt the victim was emotionally and physically abandoning her, triggering her deep-seated insecurities and sparking thoughts of retaliation. Furthermore, Ms Morgan's use of alcohol at the time likely exacerbated her symptoms of mental illness and caused her to disregard social conventions, act impulsively and to make poor risk judgments."
The report concluded with a recommended treatment plan for the applicant while in custody and upon her release.
[4]
Remarks on Sentence
The sentencing judge described the offence as "somewhat unusual", it having been committed in a domestic context in the home where she and the victim were living. Nevertheless, he described the incident as "replete with violence" and as "an ugly, violent incident involving a knife, in the presence of a child." He found that there was "considerable and continual violence, which was in a repeated stabbing, and there was a risk of serious injury... ." On the other hand, he found that the offence was not planned. He said that the incident "seemed to escalate, and that the applicant had "snapped". In the event, there was no substantial injury. He found the offence to be between the mid and low range of objective gravity.
His Honour noted the applicant's "background of considerable, and perhaps profound, disadvantage", and found that her moral culpability was significantly ameliorated by her mental condition. He considered that her "background and her mental state make her susceptible to lashing out, indeed, lashing out violently in the context of a perceived wrong, but that also makes her prone to lashing out violently on other occasions." He accepted that her mental condition called for "some diminution" of the requirement for general deterrence. He found her to be remorseful and considered her prospects of rehabilitation to be "fair". Those prospects would depend on her adherence to her medication regime and her obtaining "some stability of mental condition."
His Honour made a finding of special circumstances in the light of the applicant's mental condition, her alcohol dependence and her drug history. He reduced the sentence otherwise appropriate by 25% in recognition of the utilitarian value of her plea of guilty.
[5]
The Application
As I have said, the only ground of the application to this Court is that the sentence is manifestly excessive. The well-worn principles governing that ground were considered by the High Court in Hili v R (2010) 242 CLR 520 at [59] (538-9), [2010] HCA 45. It is sufficient for present purposes to refer to the test affirmed in Markarian v R (2005) 228 CLR 357 at [25] (370-371), adopting the language used in House v The King (1936) 55 CLR 499 at 505, that to succeed on this ground the applicant must establish that the sentence was "unreasonable or plainly unjust." The submissions of counsel for the applicant, Mr Michael King, centred upon the objective gravity of the offence and the applicant's subjective case.
Mr King briefly sketched the history of s 112 of the Crimes Act which, as originally enacted, created the offence of breaking and entering any dwelling house or other building and committing any felony therein. He pointed out that most commonly the felony alleged was stealing. He referred to the introduction in 1994 of circumstances of aggravation and special aggravation attaching to that offence by the Crimes (Home Invasion) Amendment Act. He noted that in the second reading speech of the then Attorney General, reference was made to the Government's proposal to re-write "the burglary offences" in the Crimes Act to take account of aggravating features. The Attorney referred to a spate of "these types of offences" which had recently dominated the news. He added, "In addition to losing money and valuables, members of the community have been beaten, stabbed, raped or imprisoned in their own homes." (Hansard, 16 November 1994, pp 5090-1)
Mr King argued that the primary focus of s 112, and its attendant aggravating and specially aggravated features, is what has become known as the home invasion: the breaking into a home through an external door or window, generally by a person who is a stranger to the occupants, and the stealing of property aggravated by one or more of the circumstances set out in s 105A of the Crimes Act.
The present case, Mr King pointed out, is very different. As his Honour recognised, it was an unusual case of its kind because of its domestic setting. The applicant, far from being a stranger to the victim, had been in an intimate relationship with her. Moreover, she still resided in the home at the relevant time and the breaking was into an internal room which she had previously occupied with the victim. Mr King acknowledged that the breaking of an interior door is sufficient: R v Johnson (1786) 2 East PC 448, Rex v Wenmouth (1860) 8 Cox CC 348. However, his researches had been unable to find any case dealing with that proposition since the nineteenth century, and it would seem that the charging of a breaking in those circumstances has fallen into disuse in modern times.
In the light of these circumstances, Mr King submitted, the moral culpability of this offence was low. The gravamen of the offence, he argued, was not in the applicant's breaking into the bedroom but what happened thereafter, that is, the wounding. While accepting his Honour's characterisation of the incident as a vicious attack with a knife, he pointed out that none of the wounds was life threatening or dangerous.
A sentence of 6 years and 3 months after a discount of 25% means that his Honour's starting point was 8 years and 4 months. Mr King did not challenge his Honour's finding that the offence fell within the mid and low range of objective gravity, but the effect of his argument was that the sentence does not reflect the unusual and mitigating circumstances of the case. Equally, he argued, the sentence fails to reflect the applicant's favourable subjective case: her profoundly deprived early life, her general good character and her mental condition.
Mr King referred to the Judicial Commission's statistics of sentences for the offence under s 112(3) of the Crimes Act, together with sixteen cases in this Court dealing with that offence. Broadly speaking, the figures placed the applicant's head sentence and non-parole period close to the mid-point of sentence for all offenders. The cases deal with the offence in a wide variety of circumstances, and disclose sentences ranging from 4 year with a non-parole period of 2 years to 10 years and 9 months with a non-parole period of 7 years. Four of the cases involve offences of a domestic nature, the sentences ranging from 4 years with a non-parole period of 2 years (Kelly v R [2007] NSWCCA 357) to 6 years and 9 months with a non-parole period of 3 years and 3 months (McDonald v R [2014] NSWCCA 127). These involved breaking into the home of an ex-partner and threatening or inflicting violence.
Mr King appropriately acknowledged the limitations of the statistics, which are well recognised. He also acknowledged that it was impossible to find any cases directly comparable to the present. He relied on the table of sixteen cases to convey that the applicant's sentence fell within a range reserved for cases of more serious criminality, but most of the cases are so different from the present case that they do not provide a "yardstick" against which to examine the sentence here: Hili (supra) at [54] (537), citing with approval a passage from the judgment of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) NSWLR 1 at [303-305] (70-71), [2010] NSWCCA 194.
In the category of offences under s 112(3), this is an unusual case. In the light of the applicant's deprived background and mental health problems, it is also a sad case. Nevertheless, as I have said, the offence carries a maximum sentence of 25 years and a standard non-parole period of 7 years. As the Crown prosecutor in this Court pointed out, despite its mitigating features, the present offence is objectively serious. The applicant forced her way into the room which the victim had sought to secure to protect herself, and there ensued a sustained attack upon the victim, with the use of a knife, which must have been a terrifying experience for her. The head sentence of 6 years and 9 months is severe but, having found special circumstances, his Honour afforded the applicant considerable leniency in the non-parole period of 2 years and 9 months, only 44% of the head sentence. In all the circumstances, I am not persuaded that the sentence is unreasonable or plainly unjust.
I would grant leave to appeal, but dismiss the appeal.
[6]
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Decision last updated: 14 February 2018