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[2025] NSWDC 430
General information, not legal advice.
District Court of NSW
2025-10-24
Newlinds SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Morris [2025] NSWDC 430
Hearing dates: 24 October 2025
Date of orders: 24 October 2025
Decision date: 24 October 2025
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision: (1) In relation to Count 1, after taking into account the 5% discount for the plea of guilty, the Offender is sentenced to a term of imprisonment of 6 years and 6 months commencing on 9 May 2025 and expiring 8 November 2031. (2) There will be a minimum non-parole period of 3 years and 6 months, expiring 8 November 2028, which is the first day the Offender will become eligible for parole.
Catchwords: CRIME — Break and enter with intent to commit serious indictable offence — Violent offence — Intimidation — Circumstances of aggravation — In company
SENTENCING — Relevant factors on sentence — Deprived upbringing engaging Bugmy principle — Mental health — Drug and alcohol addiction — Extensive criminal record including similar offences — General deterrence — Need for deterrence of “vigilante justice” — Special circumstances found —Non-parole period lower than standard
Legislation Cited: Crimes Act 1900 (NSW) s 112(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; s 25D(2)(a)
Cases Cited: Weininger v The Queen (2003) 212 CLR 629
Bugmy v The Queen (2013) 249 CLR 571
R v Henry (1999) 46 NSWLR 346
Category: Sentence
Parties: Rex (Crown)
Rex Morris (Offender)
Representation: Counsel:
L Nichols (Solicitor) (Crown)
J Peluso (Offender)
Solicitors:
ODPP (Crown)
Richard Cummins Solicitor (Offender)
File Number(s): 2022/67348
Publication restriction: Nil
The Offender and an unknown Co-offender broke into the victim’s house in the early hours of the morning on 3 March 2022. The victim opened the door and was confronted by the Offender and the Co-offender. The victim then quickly closed and locked the door and placed a weighted barbell at the door and called Triple 0. The Offender and the Co-offender then proceeded to attempt to force open the door for a couple minutes until the lock mechanism broke.
The Offender and Co-offender were armed with a knife, a metal pole and a wooden hockey stick.
Whilst at the front door, the Offender swung the knife at the victim but did not contact him.
There was then an altercation between the victim, Offender, and Co-offender inside the premises which lasted 7-8 minutes before the Offender and Co-offender ran away. As a result of the fight, the victim’s telescope valued at $600 was broken. The facts are agreed by the parties in some detail, and I will not reiterate them, suffice to say, there is no doubt that the victim was intimidated to the extent that he would have been terrified.
The matter was set down for trial on 7 August 2023 at the District Court at Sydney. On the first day of trial the Offender pleaded guilty. He is eligible for a discount of 5% for the utilitarian value of his plea pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”).
It now falls to me to pass sentence.
It is common ground that the following aggravating factors are engaged:
Section 21A(2)(c): the offence involved the actual use of a weapon. The Offender and unknown Co-offender were armed with a knife, a metal pole, and a wooden hockey stick.
Section 21A(2)(eb): the offence was committed in the home of the victim. The offending involved a violation of the victim’s reasonable expectation of safety and security in their own home.
It is common ground between the parties that the discount of 5% mandated by the legislation is appropriate, having regard to the timing of the plea.
In addition, the plea itself can be some evidence of contrition, remorse, and insight, a topic to which I will return.
The Offender has a significant prior history of offending, including similar offending and has served many terms in custody.
Details of the convictions for similar offences are as follows:
Aggravated break and enter: sentence date 09/01/2004, for which a suspended sentence was imposed for a term of 18 months;
Aggravated break and enter – inflict actual bodily harm: sentence date 05/11/2010, for which he was sentenced to imprisonment for 4 years with a non-parole period of 2 years; and
Aggravated break and enter: sentence date 01/12/2014, for which he was sentenced to imprisonment for 3 years with a non-parole period of 2 years.
It is acknowledged by the Offender that this prior record disentitles him from leniency and also does not bode well for the future in terms of rehabilitation.
On behalf of the Offender, it was, however, emphasised in accordance with the proportionality principle that his record cannot be taken into account to increase the sentence beyond that which is "proportionate" to the objective seriousness of the offence (disregarding the offender's prior history). It is also acknowledged by the Offender that it can negate the impact of any factors tending to reduce the seriousness of the offending or otherwise mitigate the offence: See Weininger v The Queen (2003) 212 CLR 629.
It is well established that childhood disadvantage may affect the determination of the appropriate sentence in a number of ways, in accordance with the general principles of sentencing. It may support a more lenient sentence on the basis that the court may conclude that greater weight should be given to rehabilitation than general deterrence in the particular circumstances of a case.
The mitigating effect of childhood disadvantage may have reduced impact where the offender has a criminal history and has not benefited from earlier attempts at rehabilitation. In those circumstances, greater importance may be given to the sentencing purpose of protecting the community from the offender.
The majority in Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”) accepted that the mitigating effect of such considerations do not "lose force" where the offender has committed several serious offences in the past, "the effects of profound deprivation do not dimmish over time and… they are to be given full weight in the determination of the appropriate sentence in every case."
In the Psychological Report of Chafic Awit, of Bridges Psychology Clinic, under the heading of "Early History", Mr Awit refers to the main issues that the Offender faced in his childhood. Particularly, he refers to:
a very unstable childhood;
domestic violence in his foster homes;
sexual abuse in foster care (age 10) and in a Juvenile Justice Centre (age 16); and
financial deprivation growing up.
I accept that the Offender suffered a traumatic upbringing that entitles him to the benefit of the principle explained in cases such as Bugmy.
Addiction may affect the determination of the appropriate sentence in a number of ways, in accordance with the general principles of sentencing, including:
reduced seriousness of offence;
reduced weight to general deterrence; and
reduced need for specific deterrence and enhanced prospects of rehabilitation.
Where a sentence of imprisonment is imposed, addiction may be relevant to both the head sentence and the non-parole period (although it would not be appropriate to apply a quantitative discount). However, in R v Henry (1999) 46 NSWLR 346 (“Henry”), Wood CJ at CL observed that drug addiction, in an individual case, may be a relevant fact reflecting "particularly on the relativity of the minimum and additional terms": Henry at [270].
The Offender does have a significant and ongoing addiction issue, which no doubt is partly the consequence of his difficult upbringing. I take it into account in his favour in the ways described.
Mr Awit has diagnosed the Offender as suffering from severe levels of depression, severe levels of anxiety, and severe levels of stress. He has symptoms consistent with post-traumatic stress disorder.
Mr Awit’s diagnoses are as follows:
“The history given by Mr. Morris alongside the clinical opinion of the writer supports a diagnosis of Antisocial Personality Disorder; Posttraumatic Stress Disorder; Persistent Depressive Disorder; and Substance Use Disorder at the time of the offences. There is further evidence that he struggled with Alcohol Use Disorder over the course of his adulthood.”
The Offender’s mental health history has, to date, been largely untreated.
I take into account the Offender’s mental health issues in his favour when assessing his subjective case, they certainly reduce his moral culpability. I also do consider that his medical condition makes him an unattractive vehicle for general deterrence.
It is always difficult to predict the future. The past is not always an accurate guide. However, it is often all that is available.
The Offender has what can only be described as a terrible criminal history.
He has had many convictions for all sorts of offences but, as I have already described, a number for aggravated break and entry. He has received the benefit of many, what appear to be, lenient sentences over the years by various Courts, often having been allowed to remain in the community on conditional liberty and yet he continues to offend.
What follows from this is twofold. Firstly, I do not think specific deterrence has much part to play in this sentencing exercise because I think it likely that whatever penalty I impose will make little difference to the Offender’s future. If he is to get over his drug and alcohol addictions and come to terms with the significant trauma he endured as a child, he can only do that himself. I cannot make him.
The other relevance of this history is that, whilst no doubt it is all a consequence of his deprived upbringing, that same deprived upbringing does tend to suggest that his prospects of rehabilitation must be, at best, guarded. That is not to say that he cannot be rehabilitated, and I wish him well in that regard, but it is going to be difficult for him. His mother is terminally ill with cancer, and he has a strong desire to look after her, which should motivate him. I will also take into account in his favour the effect on his mother of her son being in gaol.
Unless he is rehabilitated, by which I mean getting free of drugs and alcohol and coming to an understanding that crimes of violence are entirely unacceptable, the likelihood of him reoffending is high. This means that the need to protect the community becomes a weighty factor.
The Offender does have a history of trying to rid himself of the scourge of drug and alcohol addiction and there has been tendered a glowing Discharge Report from Wayback Limited in January 2023, indicating that he had successfully completed the residential program and had obviously done very well.
Unfortunately, between then and the offending, he had resumed his use of alcohol and drugs.
Whilst in custody, the Offender has enthusiastically participated in various courses, including what appears to be a very worthwhile program for indigenous inmates called the “Healing the Warrior Program," again there is a glowing Report from Mr Clarke, the Lead facilitator and Executive Director of the Wiimpatja Training and Skills Development Centre, recording that the Offender participated enthusiastically and with great success. There is also a photograph of the Offender receiving his certificate at the conclusion of the program and he looks happy and proud of himself, as he should be.
All of that means that, notwithstanding the Offender’s terrible criminal history and his previous failed attempts to become drug and alcohol free, I am not prepared to give up on him. Almost every person who has beaten addiction has tried and failed more than once and so past failures are not necessarily a sign that they will ultimately fail.
Although, as I have said, the Offender can only do this himself, but I was heartened to hear his evidence that, upon release on parole, he proposes to request that his parole officer’s impose conditions on him that will assist with his rehabilitation.
However, that all being said, I think the best I can say for the Offender at this stage as to prospects of rehabilitation is that they must be guarded.
The Agreed Facts tendered on sentence were conspicuous by their silence as to the Offender’s motivation to do what he did.
There was also tendered before me the Report of Mr Awit, to which I have already referred, which does not seek to connect the mental health diagnoses, together with the drug and alcohol addictions, to the offending.
I was concerned about this because it seemed to me that, without any basis to connect the Offender’s deprived upbringing, drug and alcohol problems, and mental health issues to the actual offending, those factors, whilst remaining relevant, would attract significantly less weight than they might otherwise do if there was such a connection.
At the sentencing hearing, the Offender gave sworn evidence before me explaining the offending. That explanation was that he believed at the time that the victim was “a bad man" who “was doing bad things to young girls". He explained this latter comment by saying that he believed the victim gave drugs to young girls and then sexually abused them.
The Offender with the Co-offender then took it upon themselves to go to the victim’s premises to effectively, by extracting either punishment or deterrence, mete out some sort of justice.
The Offender was not challenged as to this explanation, and I accept it. I am prepared to infer that the reason he decided to offend, being an ill thought through and irrational desire to engage in some sort of vigilante justice, can be in part explained and in that way is connected to his deprived upbringing, drug and alcohol issues, and mental health problems.
I should add that the Offender said that, at the time of the offending, he had consumed a significant amount of alcohol and ice. Whilst this is not an excuse, it does assist in understanding his conduct.
Accordingly, I am satisfied that the Offender is entitled to the full benefit of leniency described in cases such as Bugmy and that his drug and alcohol addictions are not his fault because, no doubt, they are a consequence of his deprived upbringing, as, in part, are his mental health issues.
All of that weighs heavily in his favour on the sentencing exercise.
However, against that, and whilst accepting that the Offender’s experience with police over his life has been negative and it is therefore understandable perhaps that he did not bring his concerns about the victim to the police's attention, crimes of violence motivated by a desire for vigilante or private justice are an anathema to the criminal justice system. It is wholly unacceptable for members of the community to go outside the criminal justice system, decide for themselves if a person is guilty of some sort of crime, and then pronounce sentence on them and administer that sentence. In other words, the weight to be given to general deterrence must be significant as the community needs to understand that vigilante so-called justice is itself a very serious crime and will be met with stern punishment by the Courts.
This is a reasonably serious example of this type of offending.
The Parliament’s maximum penalty of 20 years imprisonment and the standard non-parole period of 5 years are guideposts only but do tend to emphasise the serious nature of the criminality involved.
The Offender has a sorry history of similar offending and has been the beneficiary of a number of sentences which appear to have been lenient and have given him the opportunity to mend his ways. For people who suffer from deprived upbringings, there is no such thing as a last chance, but where the Offender has a history of violence, the important consideration of protection of the community looms large.
Crimes of violence are abhorrent, and general deterrence is an important factor, as all members of the community need to understand, with clarity, that people convicted of crimes of violence, especially crimes of violence committed in the victim's home, will almost inevitably be met with stern punishment.
I am concerned about and take into account what I consider to be the guarded prospects of the Offender being rehabilitated and, therefore, his reasonably high prospects of reoffending and that there is a real need in my mind to protect the community. That being said, I wish to emphasise that I have not given up on him and wish him well in his quest to improve his life.
I take into account the deprived upbringing of the Offender and give it full weight in his favour. Although, it also pulls in other directions on questions on the important questions of rehabilitation and prospects of reoffending.
Over and above the plea of guilty, there is real remorse, contrition, or insight expressed by the Offender. He knows what he needs to do and is trying to do his best. I take this into account in his favour.
There is no doubt that the threshold of a sentence of full-time imprisonment has been well and truly satisfied.
In all the circumstances, taking into account the factors in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I consider a starting point head sentence of 7 years to be appropriate.
From that, the Offender is entitled to a 5% discount of approximately five months, which when rounded in his favour, leads to a head sentence of 6 years and 6 months.
I do think that the Offender’s background and his mental health conditions will make it more difficult for him in prison than for others.
He will need all the help he can get to assist with his prospects of rehabilitation and reintegration into the community upon release and, accordingly, I am satisfied that a longer period than usual should be afforded him on parole and I propose to adjust the standard proportion in his favour.
I have determined that the non-parole period ought be 3 years and 6 months.
The sentence will be backdated by 168 days from today.
For those reasons, my orders are as follows:
In relation to Count 1, after taking into account the 5% discount for the plea of guilty, the Offender is sentenced to a term of imprisonment of 6 years and 6 months commencing on 9 May 2025 and expiring 8 November 2031.
There will be a minimum non-parole period of 3 years and 6 months, expiring 8 November 2028, which is the first day the Offender will become eligible for parole.
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R
Morris [2025] NSWDC 430
(2003) 212 CLR 629
(2013) 249 CLR 571
(1999) 46 NSWLR 346