Morris v R

1. [1]

   WARD P: I agree with Harrison J.

2. [2]

   HARRISON J: Kane Adam Morris was sentenced on 2 December 2022 by Coleman SC DCJ following pleas of guilty to two offences. The first was an offence of aggravated enter dwelling house with intent to commit a serious indictable offence, being intimidation, contrary to s 111(2) of the Crimes Act 1900. The second offence was assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act. The former offence carries a maximum penalty of 14 years imprisonment. The latter carries a maximum penalty of 7 years imprisonment. Neither offence attracts a standard non-parole period.

3. [3]

   His Honour imposed an aggregate sentence of 2 years and 4 months imprisonment with a non-parole period of 18 months. The sentence was backdated to commence on 1 October 2022. The non-parole period expires on 31 March 2024. His Honour designated indicative sentences of 2 years imprisonment for the s 111(2) offence and 12 months imprisonment for the s 59(2) offence. His Honour allowed a 10 percent discount for the plea of guilty.

4. [4]

   Mr Morris now appeals against the severity of his sentence on two grounds as follows:

Ground 1

1. [5]

   Mr Morris relied upon a report from Megan Godbee, a psychologist, at his sentencing hearing. Ms Godbee set out information about his background, including the circumstances of his upbringing. That material was used as the foundation for a submission at that time that Mr Morris’ “moral culpability… [was] lessened on account of the disadvantages of his upbringing”. The Crown did not take issue with the reliability of the information given by Mr Morris to Ms Godbee in that respect upon which she relied.

2. [6]

   However, in his remarks on sentence, his Honour noted Mr Morris’ submissions that his background invited consideration of the Bugmy principles which operate to reduce his moral culpability, but dealt with that submission as follows:

3. [7]

   Mr Morris submitted in this Court that his Honour’s conclusion was not open to him, given the material in Ms Godbee’s report, which included the following:

4. [8]

   Moreover, Mr Morris submitted that if his Honour was intending to suggest that some diagnosis had to be made before a background of deprivation could be taken into account, then this was also an error.

5. [9]

   Mr Morris submitted that his upbringing was clearly impoverished, where violence, offending and drug use were normalised. He submitted that it follows that his recourse to impulsive acts of violence and substance abuse can clearly be traced to his lived childhood experience. In these circumstances it was not open to his Honour to conclude that the information provided did not support a finding that Mr Morris’ background attracted consideration being given to moderating his moral culpability and the corresponding reduction of the importance of denunciation and deterrence.

6. [10]

   Mr Morris emphasised that his Honour did not reject the evidence in Ms Godbee’s report concerning his background and upbringing. Indeed, his Honour specifically noted that he would “take into account…the matters that [he] referred to and that are in the psychologist’s report on the subjective case of the offender”. Nor was it, as Mr Morris emphasised, simply a case of a sentencing judge making an assessment of the appropriate weight to be given to the issue or merely balancing it against some countervailing consideration, such as the protection of the community. His Honour simply proceeded upon the basis that there was no evidence before him that would give rise to the principles which apply to sentencing offenders with a background of deprivation. Mr Morris maintained that his Honour’s approach was therefore clearly erroneous.

7. [11]

   In response to Ground 1, the Crown’s written submissions included the following concession:

8. [12]

   Having regard to Mr Morris’ submissions, as well as the Crown’s concession, I consider that Ground 1 is made out and that it is appropriate to proceed to re-sentence. It becomes unnecessary to consider Ground 2.

Background facts

1. [13]

   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.

2. [14]

   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.

3. [15]

   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:

4. [16]

   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”.

5. [17]

   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.

6. [18]

   The victim was able to get Mr Morris and Ms Ison out of the house. Mr Morris yelled, “I’m going to stab you cunt, you are going to die tonight, I will be back”.

7. [19]

   They then left. The victim called police who attended a short time later. Mr Morris was arrested the following afternoon. He participated in an ERISP in which he denied attending the victim’s house or threatening him.

8. [20]

   As a result of the assault, the victim sustained a large swollen lump to the right side of his head, a two-centimetre laceration to his forehead, and a headache.

Mr Morris’ submissions

1. [21]

   Mr Morris submitted that on re-sentence, this Court should find that there was a causal link between Mr Morris’ history of deprivation and the commission of the offences so as to reduce his moral culpability. He maintained that greater weight should be given to rehabilitation at the expense of general and specific deterrence and denunciation. His reintegration into society was a matter of importance as well. Mr Morris contended that this Court should find that there was a link between his mental health conditions, particularly his PTSD, and his offending which should weigh in the assessment of his moral culpability.

Crown submissions

1. [22]

   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.

2. [23]

   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.

3. [24]

   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.

4. [25]

   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.

5. [26]

   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.

6. [27]

   As N Adams J observed in Dungay v R [2020] NSWCCA 209 at [153]:

7. [28]

   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.

8. [29]

   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.

9. [30]

   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.

10. [31]

    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

1. [32]

   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].

2. [33]

   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.

3. [34]

   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:

4. [35]

   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.

5. [36]

   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.

6. [37]

   I have arrived at an aggregate sentence of 2 years imprisonment with indicative sentences (applying a 10% discount to the indicative sentences) as follows:

7. [38]

   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.

8. [39]

   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]:

9. [40]

   See also Chan v R [2023] NSWCCA 206 at [161] and following.

10. [41]

    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.

11. [42]

    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.

12. [43]

    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.

13. [44]

    Accordingly, I would propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the sentence imposed by Coleman SC DCJ on 2 December 2022 and in lieu thereof the following sentence is imposed:

    4. (4)

       In addition to the standard conditions, the following additional condition is imposed in accordance with s 73A(2) of the Act:

    5. (5)

       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.

    6. (6)

       Mr Morris is to report to Community Corrections office as soon as practicable but no later than within seven days.

    7. (7)

       A copy of this order will be forwarded to Mr Morris.

14. [45]

    DHANJI J: I agree with Harrison J.