R v Morrison [2003] NSWCCA 89

New South Wales Court of Criminal Appeal

CITATION : R v Morrison [2003] NSWCCA 89 HEARING DATE(S) : 25 March 2003 JUDGMENT DATE : 25 March 2003

JUDGMENT OF : Studdert J at 1; Smart AJ at 39 DECISION : Leave to appeal granted; appeal dismissed.

LEGISLATION CITED : Crimes Act, s 35 Crimes (Sentencing Procedure) Act, s 32 R v Bett [2001] NSWCCA 482 R v Coleman (unreported, NSWCCA, 20 February 1995) CASES CITED : R v Galati [2002] NSWCCA 366 R v Kalache (unreported, NSWCCA, 30 June 1995) R v Page [2000] NSWCCA 484 PARTIES : Regina v Troy Anthony Morrison FILE NUMBER(S) : CCA 60027/03 COUNSEL : G.I.O. Rowling (Crown) R. Burgess (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0087 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60027/03

STUDDERT J SMART AJ

Tuesday 25 March 2003 REGINA v TROY ANTHONY MORRISON Judgment 1 STUDDERT J: The applicant, Troy Anthony Morrison, seeks leave to appeal against the sentence imposed by his Honour Judge Christie QC on 5 July 2002. On that date his Honour sentenced the applicant to a term of imprisonment of five years commencing on 5 March 2002 and expiring on 4 March 2007. His Honour, having found special circumstances, fixed a non-parole period of three years and three months expiring on 4 June 2005. 2 The offence is in a category for which s 35 of the Crimes Act imposed a maximum sentence of seven years imprisonment. The judge was also asked to take into account, pursuant to s 32 of the Crimes (Sentencing Procedure) Act an offence of malicious damage to property. 3 The objective facts were the subject of agreement. The applicant had been drinking with friends at an hotel early on the morning of 29 July 2001. The victim entered the hotel and approached the bar area. He was challenged there by the applicant who told him to leave the hotel. The victim did so but the applicant followed him out of the hotel to the front of the carpark where he hit the victim in the face with his right elbow. The victim fell to the ground unconscious and the applicant then commenced to kick the victim in the head. He did so four or five times. He then left the victim unconscious where he had fallen and returned to the hotel and resumed drinking. 4 Later, when the applicant left the hotel, he head butted a glass window of a shop, breaking the glass. It was this latter matter that the applicant asked the sentencing judge to take into account under a Form 1. 5 The applicant was arrested some eight hours after the commission of the crime and at the Taree police station made frank admissions in an ERISP. In that ERISP the applicant admitted he elbowed the victim in the vicinity of the nose, that the applicant fell over and that he then kicked him in the head probably four or five times. He added that one of the applicant's mates saw what had happened and stopped the applicant from jumping on the victim's head. 6 The applicant told the police he did what he did because he hated the victim and wanted to hurt him enough to leave the applicant's girlfriend alone. The applicant did tell the police that the victim did have a knife but he did not get a chance to use it. The applicant told the police that he was getting "pretty drunk" but that he knew what he was doing. He told the police that he hit his victim "pretty much as hard as I can." He told the police that he kicked the victim, "pretty much in the back of the head." 7 The victim was seriously injured and admitted to the Manning Base Hospital intensive care unit with what were characterised, by the surgical registrar who attended him, as serious head injuries. He was transferred to the John Hunter Hospital on 3 August 2001. A CT scan showed generalised oedema with a small subdural haematoma in the right temporal lobe. He came under the care of Dr Booth, Director of the Rehabilitation Unit for the Hunter Area Health Service, and remained at the Rankin Park Rehabilitation Unit from 13 September 2001 until 11 December 2001. 8 Subsequently, Dr Schofield, the Director of the Neuropsychiatry Service for the Hunter Area Health Service, wrote a report on 4 July 2002 in which it was stated: "He was admitted to the Rankin Park Rehabilitation Unit on 13 September 2001 and remained there until 11 December 2001. Following discharge from the Rankin Park Unit, he attended the Brain Injury Services as a day patient. In mid December, he developed psychotic symptoms and was admitted to the James Fletcher Hospital when he first had contact with the Neuropsychiatry Service. His progress since that time has been stormy. There have been periods of frank psychotic behaviour and at other times periods of depression. He continues to demonstrate marked cognitive impairments, and particularly severe memory problems. Currently, he remains an inpatient in the Neuropsychiatry Unit at Morisset Hospital but has been well enough to make a number of overnight stays with his partner.