Morris v Regina [2006] NSWCCA 199

New South Wales Court of Criminal Appeal

CITATION: Morris v Regina [2006] NSWCCA 199

HEARING DATE(S): 23 June 2006

JUDGMENT DATE: 23 June 2006

JUDGMENT OF: Giles JA at 1; Grove J at 22; Hidden J at 23

EX TEMPORE JUDGMENT DATE: 06/23/2006

DECISION: (1) Leave to appeal granted; (2) Quash the sentence imposed on 29 July 2005; (3) Sentence the applicant to imprisonment consisting of a non-parole period of 1 year and 2 months commencing on 26 July 2005 and expiring on 25 September 2006 with a total term of 2 years 3 months commencing on 26 July 2005; (4) Direct that the applicant be released to parole on 25 September 2006.

CATCHWORDS: Sentencing - malicious wounding - whether manifestly excessive - sentence outside available range - re-sentencing - depends on particular facts.

CASES CITED: Markarian v The Queen (2005) 215 ALR 213

PARTIES: Leon Glen Morris -v Regina

FILE NUMBER(S): CCA 2006/516

COUNSEL: R J Button SC & B Arste - Applicant J Girdham - Crown

SOLICITORS: S O'Connor - Appellant S Kavanagh (Solicitor for Public Prosecutions) - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1246

LOWER COURT JUDICIAL OFFICER: Donovan DCJ

IN THE COURT OF CRIMINAL APPEAL CCA 2006/516 DC 03/21/1246

GILES JA GROVE J HIDDEN J

Friday 23 June 2006 Leon Glen MORRIS v Regina Judgment 1 GILES JA: The applicant pleaded guilty to an indictment charging that on 29 April 2003 at Rooty Hill in the State of New South Wales he maliciously wounded Hans Robert Bruns. On 29 July 2005 he was sentenced to imprisonment for three years with a non-parole period of 1 year 8 months. He applied for leave to appeal on the ground that the sentence was manifestly excessive. A short extension of time was necessary, and should be granted. 2 The applicant and Mr Bruns had known each other for about ten years, and had from time to time shared accommodation. For a period prior to 29 April 2003 they shared accommodation rented in the name of Mr Bruns at Rooty Hill. The applicant was just into his forties and Mr Bruns was thirty-four years of age. In the weeks prior to that date there had been a deteriorating relationship between the applicant and Mr Bruns, with verbal and other fights. 3 The applicant had a dog. On the evening of 28 April 2003 the dog went into Mr Bruns' bedroom and urinated on the bed. Mr Bruns was angry, and the next day told the applicant to keep the dog outside until toilet trained. When he lay down in his bedroom during the day on 29 April 2003 Mr Bruns heard the dog inside. He said when interviewed by the police that - " … I just lost it and I was screaming at [the applicant] through the door um you know to get the dog outside and then um I heard him slamming doors and doing some kind of damage in his room and I screamed out, I screamed out you know, 'If you break something you can bloody well pay for it'." 4 The applicant then entered Mr Bruns' bedroom with a large knife which he had removed from a knife block in the kitchen of the house. He jumped onto the side of the bed, as described by Mr Bruns, on his knees on the bed trying to hold Mr Bruns down, and stabbed Mr Bruns with the knife. There were wounds to Mr Bruns' hands and forearms and one leg, significant but fortunately not deep stab wounds. Three were fairly superficial and two more serious than that. 5 In his interview Mr Bruns said - "I saw the look in his eyes, he was trying to kill me. Yeah. It was funny just like half way through it, he just stopped and switched off and I was just I was looking at my wounds and everything, I heard one of the screen doors open, it was the front door, he was out washing his hands of I don't know." 6 The applicant went out of the house with his dog and the knife, and threw the knife in the garden. He said to an ambulance officer "I did it, I stabbed him. I don't know what came over me." He said to a police officer that he was not going to deny what he did. In a police interview he said he remembered "just the fight, exchanging words and running to the bedroom. Just being, you know, how do you say it, seeing red." He said that he remembered "just like punching and slapping between the two of us", and that he "just saw red and was just rage". In his evidence before the sentencing judge he said he did not know why he stabbed Mr Bruns. He said it was very vague, he recalled the dog, he recalled having a knife and the dog and could remember slapping and punching Mr Bruns but he could not remember pushing the knife into him. 7 Mr Bruns recovered from his wounds. He received counselling for some time, but the judge said he did not appear to have any permanent emotional problem. 8 There was a deal of evidence concerning the effect of medications upon the applicant, none of which explained his actions, and concerning his neurological and psychological condition. The judge did not make specific findings, but appears to have accepted that the applicant's conduct was not the result of a neurological condition. Rather the judge appears to have considered that the applicant was "an isolated individual" whose failure to express remorse "in any real sense" was due to what the judge called "psychological detachment that he has from the event which is part of his psychological state". His Honour said, however - "There is insufficient evidence before me to make a specific finding about any disability, although it does appear that his outburst was inexplicable other than as ordinary rage." 9 His Honour nonetheless accepted that the applicant was otherwise a person of good character and that the offence was out of character. Mr Bruns himself had said that the attack on him was out of character for the applicant. 10 The judge's path to the sentence was as follows. 11 First, he considered aggravating and mitigating factors with reference to s 21A of the Crimes (Sentencing Procedure) Act 1999. The aggravating factor was the nature of the knife used as the weapon. The mitigating factors were that the harm to Mr Bruns, while significant, was "not substantial"; that the offence was not part of planned criminal activity except that there must have been some very limited planning immediately before the event; that the applicant did not have a significant record and was of good character, that the applicant was unlikely to re-offend and had good prospects of rehabilitation; and that the applicant had pleaded guilty at the earliest opportunity. 12 The judge then said - "The maximum penalty for this offence is seven years. I do not consider that the objective facts would warrant a seven year term. I do consider that the offence is serious and that the objective facts would warrant something in the vicinity of five years. From that I immediately discount five per cent for the plea of guilty, which brings the notional sentence to a level of 3.9 years." 13 The 3.9 years was plainly enough three and three-quarter years, more correctly expressed as 3.75 years. His Honour then said that there were "further matters which require some reduction". They were, in summary, delay between the date of the offence and sentencing, during which there had been a few days in custody and twice daily, daily and then twice weekly reporting; that the applicant had HIV and prison would therefore bear more harshly upon him; and - "There are also some significant subjective matters which I have referred to in the mitigating factors. These must be counterbalanced to a degree by the aggravating factors. Nevertheless, a further reduction should be allowed for the subjective mitigating factors which I have set out above." 14 His Honour then said - "Taking all that into account it seems to me that an appropriate head sentence which reflects the objective seriousness would be three years. The background of the defendant and his good prospects of rehabilitation indicate to me that a period less than the normal statutory period for non-parole period should be applied and I specify a non-parole period of twenty months." 15 His Honour said that the sentence would date from that day, 29 July 2005, but that the four days in custody would be taken into account and so the head sentence would expire on 25 July 2008 and the non-parole period would run to 25 March 2007. It is not entirely clear whether in the result the sentence was shortened by four days or backdated. 16 The applicant did not submit that the judge erred in the process of reasoning or in the matters he took into account. He submitted that the starting point taken by the judge was too high, and that notwithstanding that there had been a terrifying attack on Mr Bruns it was brief, the applicant desisted part-way through and there were no long-standing injuries. He submitted that sentencing statistics indicated that equivalent or greater head sentences and non-parole periods had been imposed on only a small percentage of those convicted for the same offence, and that the matters taken into account by the judge simply did not warrant a sentence as severe as that imposed. 17 I do not find assistance in the sentencing statistics on which the applicant relied. His reliance was distorted by combining sentences imposed in the Local Court with sentences imposed in higher courts, necessarily skewing the result because of the probably less serious offending underlying about two-thirds of the penalties. For higher courts, a three year head sentence and a twenty month non-parole period are broadly in the middle of the range of sentences, certainly by no means out of line so far as anything can be gained from the statistics without greater knowledge of the facts on which the sentences were imposed. It is necessary to consider the particular facts of the applicant's offence. 18 The judge's reasoning path may not have been in accord with the guidance from the High Court in Markarian v The Queen (2005) 215 ALR 213, and taking the 25 percent discount from the so called starting point may also have deprived the applicant of all of its benefit. However, neither the applicant nor the Crown went into these matters of sentencing approach, and both helpfully addressed the end question of whether or not the sentence was manifestly excessive. 19 Taking the judge's head sentence of three years and writing back the discount for a plea of guilty brings a head sentence of four years. It was a very serious attack, but it was the product of a moment of rage and out of character for the applicant. General deterrence and a need to mark that even momentary rage carried into such a serious attack can not be accepted in the community are important, but on the judge's findings specific deterrence is not. The applicant's subjective circumstances, including his HIV status and its effect on him in serving a term of imprisonment, must be borne in mind, and in my opinion the four years which more properly was part of the judge's reasoning was outside the range within which the applicant could have been sentenced. 20 In re-sentencing him I bear in mind the applicant's affidavit affirmed today, which demonstrates that his HIV status is indeed making service of a term of imprisonment a harsh exercise for him. I have come to the view that in re-sentencing an appropriate head sentence is three years, after the discount of 2 years and three months. For the reasons given by the judge, the non-parole period should be less than the statutory period, and should be 1 year and 2 months. 21 I propose the orders -