District Court New South Wales Medium Neutral Citation: R v Scott Robert Morrison [2014] NSWDC 155 Hearing dates: Trial: 22 May 2014 - 30 May 2014 Sentence Hearing: 15 August 2014 Decision date: 12 September 2014 Before: Mahony SC DCJ Decision: Concurrent terms of imprisonment. For Orders see [63] Catchwords: Reckless wounding; assault occasioning actual bodily harm Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 Cases Cited: Blanco v R (1999) 106 A Crim R 303 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Elmasri v R [2005] NSWCCA 167 Pearce v R (1998) 194 CLR 610 R v Todd (1982) 2 NSWLR 517 Silvano v R (2008) 184 A Crim R 593 Veen v R (No. 2) (1998) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecution (Crown) Scott Robert Morrison (Offender) Representation: D Daleo (Crown) B Robinson (Offender) File Number(s): 11/61616 Publication restriction: Nil SENTENCE 1On 30 May 2014 the jury delivered verdicts of not guilty on the first three counts in the Indictment. The jury delivered a verdict of guilty on the 4th count on the Indictment which was an alternative count to count 3, namely: "On 23 February 2011 at St Marys in the State of New South Wales recklessly wounded Christina Ioannou." Section 35(4) of the Crimes Act 1900. 2The offender had previously entered a plea of guilty to count 5 on the Indictment which was as follows: "On 23 February 2011 at St Marys in the State of New South Wales, assaulted Danielle Oliver, thereby occasioning to her actual bodily harm." Section 59(1) Crimes Act 1900. 3In respect of count 4 on the Indictment, the maximum penalty prescribed by s 35(4) of the Crimes Act 1900 is 7 years imprisonment. There is a standard non-parole period of 3 years. 4In respect of count 5, the maximum penalty prescribed by s 59(1) of the Crimes Act 1900 is imprisonment of 5 years. 5The accused has been in custody since the verdicts were returned and that time in custody will be taken into account on sentence. Circumstances of the Offending 6Based on the evidence at trial, I make the following findings of fact. The evidence comprised the Crown case against the offender and also the evidence of the offender. 7On 23 February 2011 the offender had been drinking since approximately 1pm. He later attended the Penrith Hotel where he consumed two alcoholic drinks and played the poker machines. He was observed after 10pm by the licensee of the Penrith Hotel to be fairly quiet, and there was nothing to indicate that he was intoxicated. He caused no trouble at the hotel and won $700 on the poker machines. 8The offender travelled by taxi to St Marys where he attended the Stairway to Heaven Brothel. He conceded that he had consumed up to 20 alcoholic drinks "at the most" and gave evidence that he felt pretty intoxicated. At the reception area he was introduced to Danielle Oliver and asked to speak to her privately about the services that were to be offered. In making their way to a back room in the premises, they walked through a lounge area where Larissa Goodman and Erhan Demirel were seated eating pizza. Ms Goodman told Danielle Oliver to leave the door of the room open whilst they were talking. After the conversation took place, the offender and Danielle Oliver were walking back through the lounge to the reception area. The offender was undecided as to whether he would stay, and in his own words was "umming and aahhing about it". Ms Goodman asked him if he was going to see the girl and he said "What's it to you?" Ms Goodman gave evidence that she said "I'm the manager on the floor". Ms Goodman gave evidence that the offender then said "That doesn't mean shit to me". The offender's evidence was that he said "Well I don't want to see you". 9Whatever it was that the offender said, it caused Mr Demirel to get up from the couch and say "You can't fucking talk to her like that". By that time, the offender had decided to pay for the services of Danielle Oliver and proceeded to walk out to the reception area to pay. At that point, he was pushed in the chest by Erhan Demirel. 10The evidence established that Danielle Oliver placed herself between the two men to separate them. The offender was trying to retaliate and Mr Demirel threw a punch which did not connect. It was only when Danielle Oliver moved in order to go outside to get the guard dog, that the two men started fighting. 11On the basis of the jury verdict, the two men ended up in a wrestle, with the offender held by Mr Demirel in a headlock on one of the sofas. Larissa Goodman then smashed a large ceramic vase across the back of the offender, causing him to fall and lay prone on the ground. It was then that he picked up a piece of shard from the ceramic vase and struck out in order to stop the attack upon him by Mr Demirel. Based on the jury verdict, he must have done so in self-defence. 12Shortly afterwards, Ms Goodman, Mr Demirel and Ms Oliver left the premises and ran down the front stairs onto Queen Street. The offender chased them and once outside the premises the two offences occurred. 13The first offence in time occurred when the offender reached the bottom of the stairs onto the pavement in Queen Street. Just nearby, and situated under the Stairway to Heaven premises, was a bakery where Ms Goodman and Mr Demirel had sought refuge. The roller shutter door had been closed behind them and Ms Oliver, who had stopped to pick up the keys to the premises which had been dropped on the ground, was standing outside by the shutter door. She was dressed in a bra and g-string only. The offender attacked her, striking her with a kick from his leg to her upper thigh and a punch which was directed towards her head, that struck her on the back. Ms Oliver gave evidence that she was screaming for help, and saw the offender clench his fist and try to hit her. She ducked and felt his hand hit the back of her neck and slide across from her right shoulder to her left. She gave evidence that he said "I'm going to get you, you slut" and she ran away. The offender followed her and she gave evidence that he said "I'm going to get you, I'm going to kill you if it's the last thing I do". 14Mr Narway Vani was a security guard employed by the bakery downstairs. He observed the offender kick Danielle Oliver a couple of times in the leg and punch her shoulder or face. 15The offender gave evidence that when he got on to Queen Street, he had looked first across the road and then to the right, and as he went to look to the left he saw someone out of the corner of his eye and he threw a kick and a punch. Once he had thrown the kick and started to throw the punch, he realised that it was not Erhan Demirel, who he was intending to attack, but that it was Danielle Oliver. 16When Danielle Oliver ran to the back of the premises she ran up the back stairs to the veranda and saw Christina Ioannou standing there. The offender followed her up the stairs to the veranda and that is where the offence in count 4 occurred. Christina Ioannou was on the veranda and was on the phone to the 000 operator when the offender came up the stairs. She gave evidence that he punched her in the right side of her rib area and then with a jagged ceramic object, which was outside on the veranda, hit her on the back of the head by lifting the ceramic piece and bringing it down in a stabbing motion, making contact with the back of the head on her left occipital area. He also punched her to the abdomen. The wound to the back of her head was 3-4cms in length, and went through to the bone of her skull. 17Police arrived shortly thereafter and the offender was arrested. The Sentence Hearing 18The Crown evidence included the criminal history of the offender (exhibit A), the pre-sentence report under the hand of Joan Horsell dated 14 August 2014 (exhibit B), and the custodial record of the offender (exhibit C). 19The offender tendered a report from Dr Mark Howard, psychologist, dated 29 July 2014 (exhibit 1), a bundle of 17 testimonials or references from friends, relatives, his partner and former employers (exhibit 2), a report of Dr Peter Nguyen dated 5 August 2014 (exhibit 3), and a letter from the offender which was undated and became exhibit 4. 20It was noted that the offender had been in custody since the guilty verdict handed down by the jury on 30 May 2014. Submissions on behalf of the Offender 21It was submitted that the offender had pleaded not guilty to the offence pursuant to s 35(4) of the Crimes Act and had entered a plea of guilty in respect of the second matter pursuant to s 59(1) of the Crimes Act. In respect of the first of those offences, the evidence established that he had struck the victim, Christine Ioannou, with a piece of ceramic shard that he had picked up just before she was struck. This constituted "use of a weapon". It was submitted that the offender did not bring a knife or weapon with him and therefore the conduct amounted to an opportunistic use of a weapon here. It was noted that shortly before this offence the jury verdict meant that he had been acting in self defence and he had not used the bottle of alcohol he had carried into the premises on that night in any way as a weapon. 22In respect of the wound inflicted on the victim, it was submitted that it was not the most serious of wounds. It measured 3cms and was half a centimetre deep. The laceration required suturing but no surgery, there was minimal loss of blood and otherwise the victim's vital signs were normal and she suffered no loss of consciousness and was not admitted to hospital. 23Counsel referred to other evidence, for example, that of the publican, Mr Hunter, which established that the offender had not caused any trouble that night. Nor did he display any intoxicated behaviour, notwithstanding that he had consumed 20 alcohol drinks on the day in question. The offence itself occurred over a short duration and therefore fell within the low range of seriousness of this type of offence. 24In respect of the second offence of occasioning actual bodily harm to Danielle Oliver pursuant to s 59(1) of the Crimes Act, the offender had entered a plea of guilty. He denied saying the words "I'm going to get you, you slut" and it was submitted that as the independent witness, Mr Vani, had not given evidence of those words being spoken, the court would not be satisfied beyond reasonable doubt that he said them. 25The injury suffered by Ms Oliver was fairly minor, constituting a grazing to her back area. Again, it was submitted that this constituted the least serious example of this type of offence and therefore lay within the lower range of objective seriousness for such offences. 26Counsel submitted that the offender was entitled to a 10% utilitarian discount on sentence for his plea of guilty. He had also demonstrated remorse for his conduct in relation to this matter, having said in evidence that he felt "like a scumbag" for striking the victim. It was submitted that the court should find that he is genuinely remorseful in respect of his conduct towards Ms Oliver. 27The offender's criminal history since 2001 involved mainly motor vehicle offences. There were a number of gaps in that history where he had not offended, for example, between 2003 and 2006. It was submitted that the criminal history was such that the court would extend some leniency to the offender on the basis that this was his first conviction for offences involving violence. 28Counsel further submitted that the offender had very good prospects of rehabilitation back into the community. Since these offences, he had got his life in order and he had put before the Court a very powerful subjective case. The history recorded by Dr Howard demonstrated that he had had a disrupted and at times traumatic childhood including years of abuse by a stepfather which led to him spending time in foster homes and a boys home. His childhood lacked stability. 29The many testimonials tendered on his behalf supported that background information. Notwithstanding that, he had developed work experience skills as a carpet layer and demonstrated a strong work ethic. Moreover, the testimonials demonstrated that he was a good father to his four sons and was now in a supportive relationship. 30Counsel submitted that each of the charges was capable of being dealt with in the Local Court, relying on Elmasri v R [2005] NSWCCA 167. The Court should therefore give some consideration of the maximum penalty available in that jurisdiction, namely, 2 years. 31Further, the trial of the offender and resolution of these matters had been delayed for a number of years, which had led him to develop anxiety and a depressive illness referred to by Dr Nguyen. Referring to R v Todd (1982) 2 NSWLR 517 and Blanco v R (1999) 106 A Crim R 303, Counsel submitted that this delay should be taken into account in moderating the penalty. Further, it had been three years since the offences, and the offender had committed no further offences. Whilst according to the presentence report he was considered a medium risk of re-offending, the Court would give little weight to that opinion given his changed circumstances and good prospects. 32It was also relevant that the offender had suffered mental health issues and therefore his time in custody would be more difficult, relying on DPP (Cth) v De La Rosa [2010] NSWCCA 194. Also, whilst it was not an exceptional case, the offender and his family had suffered hardship as a result of his circumstances. He had also suffered extra curial punishment in that he was injured in the affray and some allowance should be made for that, relying on Silvano v R (2008) 184 A Crim R 593. 33Counsel submitted that special circumstances should be found pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, as it was the first time in custody, that the offender was suffering mental health issues, and provision of rehabilitation would assist his return to the workplace. 34There are other subjective matters to be taken into account. There was ample evidence that the offender had assisted others less fortunate than himself in the community. He had given employment opportunities to persons who were out of work. He had now benefited from the spiritual guidance of his church and all of the testimonials spoke highly of his character. 35Counsel submitted that whilst the Court would have regard to the maximum penalty and standard non-parole period involved in respect of the first offence, these were guidelines only and that there were other options available to allow the offender to make a constructive return to the community. It was acknowledged that general deterrence was relevant, however, the offender had been assessed as suitable for a community service order. Crown Submissions 36The Crown submitted that for the offence pursuant to s 35(4) of the Crimes Act the only appropriate sentence was one of full time custody. In respect of the facts relating to that offence, the Crown noted that it was the offender's evidence that he never touched Christina Ioannou, and that that evidence had been clearly rejected by the jury. It was submitted that Christina Ioannou did nothing to the offender. She was standing upstairs outside the brothel and was on the phone to 000 when the offender faced her and attacked her with a shard of the ceramic vase. He struck her with that shard in the back of the head and also struck her with his fist to the area of her ribs and abdomen. He had demonstrated no remorse in respect of this attack. It was an unprovoked serious assault with a weapon to a vulnerable part of the body of the victim. It was not an element of the offence that he was armed and therefore the fact that he was armed, aggravated the offending. Nothing that had occurred to him prior to the offence justified his conduct and therefore the offending lay within the mid-range of objective seriousness for the offence of recklessly wounding. 37The Crown submitted that this was not a matter that could be dealt with within the jurisdiction of the Local Court. The transcript of the 000 call made by the victim was compelling evidence of the fear and distress suffered by her. That evidence was corroborated by the paramedic who attended her, Mr Fulcher, and observed her to be in a distressed state. The offence had a significant impact on Christina Ioannou. 38The Crown acknowledged that the offender had been remorseful in respect of the offence pursuant to s 59(1) of the Crimes Act, namely, the assault on Ms Oliver. His evidence that he thought she was Mr Demirel should be rejected. At the time of the offence she was facing the offender and she was scantily clad. The Court would also accept her evidence that he said "I'm going to get you, you slut". The Court would not accept the offender's evidence that he tried to pull back on the punch that he threw at her. This was not supported by the evidence of the independent witness, Mr Vani, who clearly saw the offender punch and kick Ms Oliver. He then chased her. 39The Crown submitted that there was no utility in the plea of guilty entered by the offender in respect of this charge. Ms Oliver was required to give evidence and was cross-examined in respect of her conduct in respect of this charge. Given the dispute on the facts, there could not be a utilitarian discount on sentence. 40Having regard to the principles of totality and accumulation, there being no discount available to the offender in respect of the offence pursuant to s 35(4) of the Crimes Act, the standard non-parole period was then a compelling guide. Further, the pre-sentence report had recorded that the offender's response to prior supervision had been generally unsatisfactory. Notwithstanding his good prospects of rehabilitation, the offender must be held accountable for his conduct. The letter that he presented to the Court (exhibit 4), was dominated by concerns for himself. It demonstrates that he believes he continues to be the aggrieved party, and his plea for immediate release demonstrated a lack of insight into the seriousness of his conduct. 41The Crown submitted that the subjective features demonstrated in the offender's case do not override the objective seriousness of the offending here. There was no hardship to the offender or his family that was out of the ordinary, and whilst he had suffered some extra curial punishment when he was injured in the affray inside the brothel, the offender had the opportunity to walk away on several occasions and chose not to. There should therefore be no discount for extra curial punishment in this case. 42Finally, it was submitted that the sentences should be discrete, reflecting the seriousness of the offending in each case. The offender, at the time of the sentence hearing, had spent two months and 16 days in custody, since 30 May 2014. Joint Submissions on the Court's power to impose a Community Service Order 43During Counsels' submissions at the sentence hearing I raised the question whether there was power, pursuant to the Crimes (Sentencing Procedure) Act 1999 to order a Community Service Order in respect of the second offence, to follow any term of imprisonment that the offender may be sentenced to in respect of the first offence, if that were to occur. On 3 September 2014 I received a joint submission from the parties that noted that the relevant legislation was silent on that question. S 93 of the Act provides for notice by the Court to be given to the offender and the Commissioner of Corrective Services. S 107 of the Crimes (Administration of Sentences) Act 1999 provides for the relevant maximum period of any such order, depending on the number of hours. It was submitted that the effect of the proper construction of the two sections was that a Community Service Order commences on the day that it is imposed by the Court, and that the commencement date of the order cannot be post-dated. 44On that basis, the defence submission was that if the offender was to be released in the near future, there would be sufficient time for the number of hours the subject of a Community Service Order to be completed within the "relevant maximum period" as proscribed s 107 of the Crimes (Administration of Sentences) Act. However, if the sentence imposed keeps the offender in custody from beyond the near future, then it was respectfully submitted that the Court should not impose a Community Service Order. 45The Crown submitted that it would not be appropriate to impose a Community Service Order to follow upon the release of the offender from custody in the circumstances. Determination 46Having regard to all of the circumstances of the offending, the offence of recklessly wounding Christina Ioannou, by stabbing her in the back of the head with a shard of the broken ceramic vase, and punching her in the rib and abdomen area, constitutes serious offending which falls just below the mid-range of objective seriousness for offences pursuant to s 35(4) of the Crimes Act, but not very far below it. That offence occurred at the end of the conduct outlined above, when the offender had had numerous opportunities to walk away from the situation or to end his involvement in it. The offending was borne of a rage, no doubt fuelled by the fact that the offender had consumed up to 20 alcoholic drinks that day, that saw him chase the other victim, Ms Oliver, back to the premises. Ms Ioannou had had no involvement in the earlier affray inside the premises. She was on the phone to 000 requesting police assistance at the time of the attack upon her. The transcript of that phone call bespeaks the terrifying situation she found herself in. Further, she suffered a laceration to the back of her head which could not be described in any way as minor. 47With respect to the offence involving Ms Oliver, of occasioning actual bodily harm pursuant to s 59(1) of the Crimes Act, I am of the view that the offending there lies below the mid-range of objective seriousness for such offences. Notwithstanding that, it still amounted to serious offending, being an attack by way of kicking and punching a woman in a public place. I do not accept the offender's explanation that he at first thought that person was a male. On any objective view of the situation, given that she was scantily clad, he could not have done so. 48I have had regard to the maximum penalty in respect of the offence pursuant to s 35(4) of the Crimes Act of 7 years imprisonment and the standard non-parole period of 3 years for that offence, and the maximum penalty of imprisonment of 5 years for the offence pursuant to s 59(1) of the Crimes Act. The maximum sentences and standard non-parole periods are guideposts to be taken into account in the sentencing process. 49I have also had regard to the fact that the offender's criminal history since 2001 has involved mainly motor vehicle offences, and that this is his first conviction for offences involving violence. The offences are thereby shown to be an uncharacteristic aberration rather than demonstrating an attitude of disobedience to the law - see Veen v R (No. 2) (1998) 164 CLR 465 at 477. 50In respect of the offence pursuant to s 59(1) of the Crimes Act, the offender did enter a plea of guilty prior to the trial, and has also demonstrated remorse for his conduct in relation to striking the female victim. I find that he is genuinely remorseful in respect of his conduct towards Ms Oliver, notwithstanding that she was cross-examined by his counsel in the trial. I do not, however, find that her injury was in any way minimal. However, having regard to the fact that Ms Oliver was required to give evidence and be cross-examined at trial, I find that he is entitled to no utilitarian discount on sentence in respect of the plea of guilty to this offence. 51Given the nature of the offending and the serious circumstances giving rise to the various counts on the Indictment that were tried before a jury, I do not find that each of these charges were capable of being dealt with in the Local Court and that therefore the maximum jurisdiction of that Court should be applicable. 52I do find that the offender is entitled to some leniency in respect of the delay in these matters being finalised. I refer to the well known passage by Street CJ in R v Todd (1982) 2 NSWLR 517 at 519: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence, at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." I have also had regard to the offender's demonstrated rehabilitative progress in the intervening period - see Blanco v R, supra. 53In the intervening period, I also note that the evidence establishes that the offender has developed an anxiety and depressive illness as referred to by Dr Nguyen and further, that he has committed no further offences in that period. 54Having regard to the changes that the offender has effected in his life since the offending, and giving weight to the testimonials tendered on his behalf which support a finding that he has a strong relationship with his now partner and sons and a strong work ethic, I do not accept the opinion expressed in the pre-sentence report that he is a medium risk of reoffending in the manner of these offences. Rather, I find that he has, with the benefit of rehabilitative services for his drug and alcohol and anger manager issues, good prospects of being rehabilitated as a constructive member of the community. 55I do not find that the offender's conduct was borne of any mental health issues at the time of his offending. General deterrence therefore must have a part to play in the sentencing process. Nor do I find that this is an exceptional case, giving rise to hardship on his family. His present familial relationships were entered into subsequent to the offending that occurred here. Nor do I find that he suffered extra curial punishment as a result of the affray, given that he had the opportunity to walk away from it and was not prepared to do so. 56I have had regard to the subjective matters outlined in the submissions of Counsel for the offender. The 17 testimonials speak highly of his character, and I accept that his involvement in these offences was, as outlined above, an aberration. 57I find that there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The fact is that these are the first offences of a violent nature that the offender has been convicted of. He has clearly a problem with alcohol and anger management and requires rehabilitation in respect of those. I note that the offender has changed his life completely since the offending and has strong familial and community support. For those reasons I find that there are special circumstances made out and that the ratio of any non-parole period served by him to any head sentence should be altered accordingly. Sentence 58Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "(a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 59The maximum penalties and standard non-parole period are guideposts to be taken into account in considering all of the circumstances of the offending. However, as outlined above, I have found that the objective seriousness of the offending is below mid-range of offences of each type. 60I have had regard to the many subjective matters relevant to the offender's circumstances here. I am also mindful of the principles of proportionality, totality and the avoidance of double punishment set out in Pearce v R (1998) 194 CLR 610 at [45]. 61Having considered all sentencing options, there is, in respect of the offence pursuant to s 35(4) of the Crimes Act no alternative here to a term of full time imprisonment, pursuant to s 5 of the Sentencing Act. In respect of that offence, I intend to sentence you to a total term of imprisonment of 3 years. Having found special circumstances pursuant to s 44(2) of the Sentencing Act, I intend to sentence you to a non-parole period in respect of that offence of 1 year and 6 months, commencing on 30 May 2014. 62In respect of the offence pursuant to s 59(1) of the Crimes Act, I accept the joint submission that a Community Service Order is not appropriate here. I intend to sentence you to a fixed term of 12 months imprisonment, to be served concurrently with the above sentence. Orders 63I make the following orders: (1)You are convicted of both offences pursuant to s 35(4) and s 59(1) of the Crimes Act 1900. (2)In respect of the offence pursuant to s 35(4) of the Crimes Act, I sentence you to a non-parole period of 1 year and 6 months imprisonment to commence on 30 May 2014 and to expire on 29 November 2015. (3)In respect of that offence, I sentence you to a further period of imprisonment of 1 year and 6 months commencing on 30 November 2015 and expiring on 29 May 2017. (4)For the offence pursuant to s 59(1) of the Crimes Act, I sentence you to a fixed term of imprisonment of 12 months, to be served concurrently with the above sentence, to commence on 30 May 2014 and to expire on 29 May 2015. (5)Your parole eligibility date will be 29 November 2015. (6)I direct that upon release to parole you accept the supervision of the Probation and Parole Service, and any recommendations that service makes in respect of drug and alcohol rehabilitation and counselling, anger management and violence programs, and any reasonable direction given to you by that service. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 October 2014