Morris v R

Judgment (5 paragraphs)

[1]

Background facts

Mr Morris and the victim, Benjamin Jacobson, had known each other for at least 18 months at the time of the offence. Mr Morris had been a guest at the victim's home a number of times. He told Ms Godbee that they had been friends prior to the incident.
Nine days before the offences, Mr Morris and the victim exchanged angry text messages, including a threatening message from Mr Morris. In his ERISP, Mr Morris told police that his relationship with the victim broke down as he was dating the victim's ex-girlfriend.
On 26 April 2019, Mr Morris had been drinking. He met up with his co-offender, Shanice Ison. Ms Ison's father, Daniel, had recently died. Daniel Ison had been a friend of the victim. When Mr Morris saw Ms Ison that night, she was yelling out: "Kane, Benny [the victim] has stolen from my dead father, that prick stole from my dead father. He is a fucking thief, how dare he steal from my dead dad."
At about 11pm, he and Ms Ison entered the victim's home. The victim had been watching TV when he heard his front gate fling open and then saw Mr Morris and Ms Ison entering his house. According to the Agreed Facts on Sentence, Mr Morris was demanding to know where "Daniel's stash is". Ms Ison also started "going off" about "Daniel's stash".
In response, the victim said that he did not know what they were talking about and demanded they "fuck off" out of his house. Mr Morris said to the victim, "We are going to stab you cunt, you are going to die tonight." Mr Morris then stepped back out of the door. The victim went to get his phone to call police and Mr Morris came back into the house, screaming at the victim. He hit him twice, once to the left side of the forehead, just above his eyebrow, and on the back of his head.

Crown submissions

As already noted, the Crown accepted that it may be necessary for this Court to exercise the sentencing discretion afresh in accordance with the principles stated by the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. The approach to be adopted by this Court is that set out by Beech-Jones J in RO v R [2019] NSWCCA 183 at [87]-[89]. It includes putting aside the sentence imposed at first instance.
The Crown submitted that having considered all relevant factors this Court would not conclude that a lesser sentence is warranted in law and would therefore dismiss the appeal: s 6(3) Criminal Appeal Act, 1912. The Crown submitted that this Court would adopt such findings of the sentencing judge that are not the subject of challenge by the parties.
The Crown submitted that the offence was serious. Not only did he know that the victim was at home (the circumstance of aggravation relied upon to establish the charge), but he committed the offence in the company of a co-offender. When the victim refused to accede to his demands, Mr Morris repeatedly threatened to kill him. Mr Morris' submission that the threat although made "was not acted on, notwithstanding that there was opportunity to do so" is of limited significance given that it can only relate to Mr Morris' failure to stab and kill the victim. The reality that a particular crime could conceivably have been worse is not relevant to the assessment of what occurred in fact. Mr Morris assaulted the victim causing him injury. As the sentencing judge recognised, Mr Morris' actions were entirely unprovoked by the victim who posed no threat.
As Mr Morris' submissions accept in terms, his background was not as deprived or disadvantaged as others who come before this Court. The Crown accepted that his background was plainly deprived and the deprivation continues to have consequences for him. The Crown also accepted that aspects of Mr Morris' upbringing and early life are properly characterised as deprived or disadvantaged and that Ms Godbee's report supports the conclusion that his exposure to violence and substance abuse continues to have consequences for him. However, the Crown maintained that the sentencing judge took these matters into account as part of his instinctive synthesis.
Moreover, Mr Morris enjoyed a close relationship with his mother and his siblings. He told Ms Godbee that his mother would intervene when he tried to emulate his father by acting "mean and rough", demonstrating not only that positive behavioural traits were modelled to him but that he possessed a level of insight into his own behaviour. Further, while Mr Morris' accommodation was, at times, unstable in the sense that he was absent from his mother's home, on some of those occasions he would stay with his grandparents with whom he also enjoyed a close relationship.
As N Adams J observed in Dungay v R [2020] NSWCCA 209 at [153]: "… although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender's moral culpability: Kleindienst v R [2020] NSWCA 98. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence."
The present case does not involve Mr Morris impulsively resorting to violence. Nor, as noted above, does it involve him resorting to violence in response to a threat. Here, the violence was entirely unprovoked. While the Crown accepted that the offending occurred in circumstances where Mr Morris' substance abuse issues and preparedness to resort to violence are to some extent rooted in his childhood, any reduction in moral culpability on that account ought only to be modest where the offence was committed at least in part because of a perceived need to obtain more drugs.
The Crown submitted that the evidence does not establish a causal relationship between Mr Morris' mental health issues and his commission of the offences so as to justify a finding that his moral culpability is reduced. Nor are those issues of such a character that they make him an inappropriate vehicle for general deterrence or moderate the weight to be afforded to specific deterrence. The sentencing judge was correct to regard general and specific deterrence as important considerations in the determination of an appropriate sentence in this case.
Further, insofar as the evidence suggests that symptoms reported by Mr Morris to Ms Godbee are a product of his childhood, it is necessary to ensure that there is no double counting of the issue.
Accordingly, and having regard to the other uncontested findings made by the sentencing judge, this Court would conclude that no other (lesser) sentence is warranted at law.

Consideration

Having regard to the foregoing, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) Criminal Appeal Act 1912: Kentwell v The Queen at [43].
In his remarks on sentence, his Honour observed, uncontroversially in my opinion, that Mr Morris' prospects of rehabilitation depended upon him being able to control and rid himself of drug and alcohol abuse. His Honour expressed the view that those prospects were, at the time of the sentence hearing, guarded.
In this Court, Mr Morris sought to read his affidavit of 11 August 2023, helpfully dealing with matters that have occurred since his Honour expressed that view. That affidavit, read without objection upon the usual basis, contains the following information: "1. I am the applicant in this matter. 2. I was moved to St Heliers gaol after I was sentenced in December 2022. 3. Since I have been at St Heliers gaol, I have had a job in modular building. I was building kits for gaol cells and buildings in the community which have been damaged by the floods. In the past week, I volunteered for a spray-painting job because of a shortage of workers in this area. I am now doing spray-painting work for furniture in schools. 4. I have completed the following employment-related training since I was sentenced: a. Forklift licence; b. Crane licence; c. Elevated Work Platform licence; d. Vocational Training Program - agriculture; e. Vocational Training Program - construction. 5. I have attended Narcotics Anonymous and Alcoholics Anonymous every Monday for the past few months. These weekly group sessions have given me the tools to cope with difficult emotions and the foundations to help me stay in recovery. I have not had drugs or alcohol since I have come into gaol. 6. I have also been attending the Kairos Christianity program since March this year. I go to the prison chapel and meet with a group on a monthly basis. 7. I have not been able to access any other programs while in custody. I am willing to do all I can to access rehabilitation programs in the community when I am released so I can stay well and away from alcohol and drugs. 8. A couple of months ago, my mum told me that my brother-in-law tried to end his life by hanging himself. This really shocked me. I was devastated at the time. He and I are very close. I asked to see a psychologist and I am still waiting to see one. I go up to the clinic every couple of days to see whether I am on the list yet to see someone. 9. I was approved to stay in the Dumaresq Centre until the incident with my brother-in-law. I decided at that point to move back into the compound to be with friends because I needed their support. The Dumaresq Centre is a section of the gaol that is more open and relaxed and with no fences and for those inmates who are trusted to behave well. 10. I was eligible for re-classification to C3 in June this year and to be granted works release, but I was told by gaol staff that this would not go ahead while I still have an appeal running. 11. I have the support of my ex-partner, Talia, as well as my mum and my nan. I speak with Talia daily and regularly with my mum and nan. 12. I have had no internal disciplinary charges since I came into gaol except for an incident last month on 18 July. I was caught with a cigarette on me. I was given a caution only for that charge. I was feeling stressed at that time because my nan was not well and I was really worried about her. She is 78 years old and has had 2 broken hips in the past 8 months. She lives by herself in Manilla. I am very close to my nan and use (sic) to help her with everyday chores and intend to go back to helping her as much as I can when I am released. 13. My Legal Aid solicitor told me that a positive urine sample and a missed muster was reported in a case note on 29 May 2023. In relation to the urine sample, I was later told by gaol staff that it was a false positive and I did not get any charge or punishment for it. In relation to the missed muster, I was just really tired on the weekend before the Monday when I missed the muster and had slept in. 14. When I am released, I will live with my mum in Manilla until I find a place of my own. I have a family friend, Paul Ferguson, who has a tree services company called Aura Tree Services. He has told me that he will give me a full-time job with his company doing tree- lopping work when I am released. I speak to him on the telephone regularly. 15. When I am released, I also intend to do all I can to support Talia and our 8-month old son who was born while I have been in gaol. They live in Gunnedah which is close to Manilla where my mum and nan live."
This information is in contrast to the limited material that was before the sentencing judge and significantly informs the likelihood that Mr Morris' rehabilitation prospects have improved. Affidavits from Frances Low, Mr Morris' solicitor, affirmed on 15 August 2023 and 23 August 2023, also support the fact that Mr Morris will have secure employment upon his release, whenever that occurs.
I adopt the findings of the sentencing judge with respect to the subjective and objective factors relevant to sentencing Mr Morris. It was not submitted that I should do otherwise. I am also satisfied that a sentence of imprisonment was warranted, but in the exercise of my sentencing discretion, I would impose a different aggregate sentence.
I have arrived at an aggregate sentence of 2 years imprisonment with indicative sentences (applying a 10% discount to the indicative sentences) as follows: Count 1: 18 months imprisonment Count 2: 9 months imprisonment.
I consider that Mr Morris should serve that sentence under an ICO in the community. Although we have not been provided with a Sentencing Assessment Report, the evidence touching and concerning Mr Morris' progress in custody indicates in my opinion that he is now a suitable candidate for such an order. I have proceeded upon the basis that the safety of the community is the paramount consideration and that Mr Morris now poses a low risk to the community. I consider that Mr Morris' risk of reoffending would be better met on an ICO than if he were to remain in custody. General deterrence, denunciation and punishment are important sentencing principles but the seeds of rehabilitation have been well nourished and ought in this case be given the best opportunity to bloom. I am satisfied that, giving paramount consideration to community safety, this is an appropriate case in which Mr Morris can serve his sentence by way of an ICO.
Mr Morris has been in custody serving his sentence since 1 October 2022. Under s 71 of the Crimes (Sentencing Procedure) Act 1999, an ICO commences on the date it is made. Unlike a sentence of imprisonment served in custody, the sentence cannot be backdated. The time spent by Mr Morris in custody since the commencement of his sentence has already been served and cannot now be accounted for in any principled way. This difficulty was considered in Mandranis v R [2021] NSWCCA 97. In that decision, Simpson JA observed at [61]: "Provided that the appropriate term of the sentence is determined before consideration is given to an ICO, it would, if an ICO is found to be appropriate, be acceptable for that term to be adjusted by the deduction of a period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it is made (in compliance with s 71) and is co-extensive with the term of imprisonment (as required by s 70). The sentence actually recorded and imposed would be less (by the length of the pre-sentence custody) than the sentence found to be appropriate to meet the purpose of sentencing."
See also Chan v R [2023] NSWCCA 206 at [161] and following.
Having regard to the fact that I would impose a sentence of 2 years imprisonment, a reduction of that term by 11 months and 2 weeks to account for his time already served would leave Mr Morris with a sentence of 1 year and 2 weeks to be served by way of an ICO.
Mr Evers of counsel for Mr Morris submitted that the form of any ICO that this Court may consider appropriate should include only the standard conditions to which s 73 of the Act refers. He contended that the imposition of an abstention condition requiring Mr Morris to abstain from alcohol or drugs or both could potentially work to Mr Morris' detriment if it, in effect, set him up to fail. While I accept the sentiment behind such a submission, it is in the circumstances of this case necessary, as the sentencing judge himself recognised, to take account both of the role played by drugs and alcohol in the commission of the offences as well as the corresponding need to give primacy to the protection of the safety of the community. It follows that I am not satisfied that there are exceptional circumstances justifying a decision not to impose an additional condition as contemplated by s 73A(1A) of the Act.
As was observed in Mandranis, the effect of s 71 of the Act is that the term of imprisonment imposed on Mr Morris on re-sentence is shorter than would have been the case had I been sentencing him at first instance. In the intervening period he has now served 11 months and 2 weeks in full time custody. The sentence I propose must necessarily be understood in light of the aggregate sentence of 2 years that I have indicated and the time served by Mr Morris to date in accordance with his original sentence.
Accordingly, I would propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Coleman SC DCJ on 2 December 2022 and in lieu thereof the following sentence is imposed: 1. An aggregate sentence of 1 year and 2 weeks imprisonment to commence on 15 September 2023. 2. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on Mr Morris is to be served by way of an intensive correction order commencing on 15 September 2023 and expiring on 29 September 2024. 3. The standard conditions of the order will apply, namely, 1. Mr Morris must not commit any offence; and 2. Mr Morris must submit to supervision by a community corrections officer for the term of the order. 1. In addition to the standard conditions, the following additional condition is imposed in accordance with s 73A(2) of the Act: (f) an abstention condition requiring abstention from alcohol and drugs. 1. If Mr Morris fails to comply with the conditions of the order, sanctions may be imposed by the Commissioner of Corrective Services. Those sanctions may include a formal warning, the imposition of more stringent conditions or may include revocation of this order. If the order is revoked, Mr Morris may be required to serve all or some of the period of the sentence in full-time custody. 2. Mr Morris is to report to Community Corrections office as soon as practicable but no later than within seven days. 3. A copy of this order will be forwarded to Mr Morris.
DHANJI J: I agree with Harrison J.

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