Morris v R

[2007] NSWCCA 127

New South Wales
Court of Criminal Appeal

CITATION:	MORRIS v R [2007] NSWCCA 127 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 May 2007
JUDGMENT DATE:	17 May 2007
JUDGMENT OF:	Giles JA at 1; Hidden J at 30; Harrison J at 31
DECISION:	Grant leave to appeal. Appeal allowed. Sentence imposed on 10 August 2006 quashed and in lieu thereof the applicant sentenced to imprisonment for 5 years, comprising a non-parole period of 3 years and 6 months commencing on 28 January 2006 and to expire on 27 July 2009 and a balance of term of 1 year and 6 months to commence on 28 July 2009 and expire on 27 January 2011.
CATCHWORDS:	Sentencing - malicious wounding - whether aggravating factor of vulnerability of victim - vunlerability because of disability through illness - whether sentence manifestly excessive - sentencing judge placed offence at top of range of seriousness and within "worst case" class - imposed maximum period of imprisonment - injuries far removed from worst case injuries - erroneous to place offence within worst case class - resentenced to lesser period of imprisonment.
PARTIES:	Mark Anthony Morris - Applicant Regina - Respondent
FILE NUMBER(S):	CCA 2007/408
COUNSEL:	B Rigg - Applicant P Ingram - Crown
SOLICITORS:	Brenda Duchen - Applicant S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/31/0363
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	10 August 2006 (Date of sentence)

CCA 2007/408

GILES JA
HIDDEN J
HARRISON J

Thursday 17 May 2007

Mark Anthony MORRIS v REGINA

Judgment

1 GILES JA: After a trial before Nield DCJ and a jury, on 22 May 2006 the applicant was found guilty on a charge of malicious wounding, an offence under s 35(1)(a) of the Crimes Act 1900. The offence was committed on 24 July 2005. On 10 August 2006 the applicant was sentenced to imprisonment for seven years being a non-parole period of 4 years and 6 months commencing on 28 January 2006 and expiring on 27 July 2010 and a balance of term of 2 years and 6 months expiring on 27 January 2013. The commencement on 28 January 2006 reflected partial accumulation upon a sentence then being served for another offence, and special circumstances for varying the statutory ratio between the non-parole period and the parole period were found in the accumulation.

2 This is an application for leave to appeal against the sentence, on the grounds -

(1) that the judge erroneously took into account as an aggravating factor, pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, the vulnerability of the victim; and
(2) that the sentence is manifestly excessive.

3 The judge did not find the facts of the offence in narrative form. The full trial materials were not put before us. The judge’s findings shortly set out are to be understood against the following events, taken from the description of the Crown case in the helpful written submissions of the applicant’s counsel and with reference to the photographs Exx H1 and H2 and the sketch plan Ex K2.

4 The applicant had moved into a flat at the rear of 351 The Entrance Road, Long Jetty. In the early hours of 24 July 2005 Mr Wade Burns and a number of his friends were walking along The Entrance Road, returning from the Tuggerah Lakes Memorial Club. The applicant was standing near the corner of the dwelling at number 351 more distant from the Club, a little off the street.

5 There was a letterbox outside number 351, approximately central to the dwelling as viewed from the street. When near the letterbox, but still on the Club side of the letterbox, Mr Burns felt unwell. He thought he was going to vomit, and stopped with his hands on his knees and his head down; according to his friend Mr Anderson, Mr Burns was dry retching and making horrible sounds.

6 A man, who must have been the applicant, told Mr Burns or perhaps the whole group to “fuck off”, and Mr Burns replied to “hold on a minute mate, I’m just being crook here”. The man said, “I’m sick of you blokes. Get the fuck out of here”, and Mr Burns said “You fuck off mate, I’m being crook”. Thereupon the applicant ran towards Mr Burns, who in a manner which the evidence did not make clear also moved to be at the letterbox. Mr Burns tackled the applicant, and they fell onto the concrete foot path with the applicant beneath Mr Burns.

7 The applicant was carrying a knife, and Mr Anderson said that “Soon as they hit the ground I saw the knife come out in the bloke’s hand, on his left hand side”. It was a large knife, variously described but towards 30 cm long. Mr Burns received a number of wounds. Mr Anderson intervened and restrained the applicant’s use of the knife, and separated the men, and the applicant ran off.

8 Mr Burns said that he received five wounds, two of which were stitched, two of which were puncture marks and the other was like a slice or graze. There was other evidence of three lacerations to the torso. One, about two centimetres long, was just left of the sternum. A second was about one centimetre long. A third laceration about 4 mm in length was observed beneath the navel on the left side. The abdomen was not penetrated, and the wounds were sutured.

9 Early in his remarks on sentence the judge said that at about 1 am on 24 July 2005 the applicant -

“ … attacked Mr Wade Burns when armed with a knife and he wounded Mr Burns a number of times, after which he ran away, taking the knife with him.”

10 The judge said -

“16. I do not have any doubt that the offender, when armed with a knife, ran towards the complainant intending to attack him with the knife and that the complainant, in defending himself against the offender’s attack, tackled the offender, sending them both onto the concrete path leading from the stairs at the footpath to the home, and that then the offender stabbed the complainant a number of times with the knife, after which, and fortunately for the complainant, Mr Anderson, the complainant’s friend, intervened, which led to the offender running away, taking the knife with him.
17. The offender’s attack upon the complainant was a premeditated, unprovoked, armed and cowardly attack upon an unsuspecting, unarmed, defenceless and helpless man, which resulted in the complainant suffering numerous wounds, lacerations, grazes and abrasions. Fortunately, as a result of luck, the complainant’s actions in his own defence and the intervention of his friend, Mr Anderson, none of the complainant’s injuries was serious or life threatening and, so far as I am aware, the complainant has recovered from his injuries. Of course, the number of the complainant’s injuries and the nature and extent of them are indications of the ferocity of the attack and of the offender’s intention at the time.
18. The offence committed by the offender involved the use of violence and the use of a weapon. It was, as I have said, an armed attack upon an unarmed man. It resulted in the victim suffering numerous injuries. It was, in my assessment, at the top of the range of seriousness for offences of its kind. It falls within the class of worst case of its kind. It merits, and demands, an appropriately severe penalty.
19. The offender’s counsel submitted that the offence was not premeditated being unplanned and spontaneous. I do not agree. I accept that, when the offender left his flat at the rear of the property, taking a knife with him, and why he did so is unexplained, and walked to the corner of the building at the front of the property, he did not intend to attack and to injure the complainant. However, I find that he stood at the corner of the building at the front of the property, that he watched Mr Anderson and the complainant as they walked along the footpath from one corner of the property towards the other corner of it, that, while watching the complainant and what the complainant was doing, he decided to attack the complainant with the knife and that, having made that decision, he ran from where he was standing towards the complainant carrying the knife in one hand and he attacked the complainant with the knife.
20. The offender’s counsel submitted that the offender was provoked by the complainant. I do not agree. Although I accept that the complainant used offensive language towards the offender, which language was in response to offensive language used by the offender towards the complainant, that the complainant was dry retching while leaning on the letterbox at the front of the property and that the complainant tackled the offender when the offender ran at him with the knife in one of his hands, none of the words or actions of the complainant could be considered to amount to provocation for the conduct of the offender, and, in any event, the complainant’s tackling of the offender was an act in his own defence.”

Aggravating factor

11 Referring to s 21A of the Crimes (Sentencing Procedure) Act, the judge said -

“ … having regard to what I have said already about the offence and the offender, I consider that the only appropriate aggravating factor is that lettered (l), in subsection 2 and that the only appropriate mitigating factors are those lettered (a) and (b), that is, not part of an organised criminal activity, in subsection 3 of the section”.

12 Section 21A(2)(l) states as an aggravating factor to be taken into account in determining the appropriate sentence for an offence -

“(l) The victim was vulnerable, for example, because the victim was very young or old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant)”.

13 The judge had earlier noted that the offence was committed while the applicant was on parole less than three months after serving a sentence of imprisonment for armed robbery and while on bail for some driving offences. That he was on conditional liberty was also an aggravating factor under s 21A(2)(j). It should be said that the bail for driving offences was not clear from the materials before the judge.

14 The judge was not specific in identification of Mr Wade’s vulnerability. The applicant’s submissions took it that his Honour was harking back to his earlier references to an attack upon “an unsuspecting, unarmed, defenceless and helpless man” and “an unarmed man”, see the judge’s [17] and [18] earlier set out. The applicant submitted that vulnerability could not properly be found in a victim being unarmed, or at least in Mr Wade being unarmed, and that the fact that Mr Wade was overcome in the commission of the offence also did not give rise to vulnerability. The thrust of the submissions was that there was not vulnerability, and that the collection of adjectives used by the judge went beyond what could be vulnerability.

15 It may be that the collection of adjectives is not the a measure of the judge’s finding of vulnerability. It is unfortunate that his Honour referred so globally to “what I have already said about the offence and the offender”, but his remarks on sentence must be read as a whole. He specifically adverted to Mr Burns dry retching while leaning on the letterbox, see his [20], when the applicant ran at Mr Burns with the knife, and it may be that no more than that was intended to be taken up. Ordinarily a victim would not be regarded as vulnerable because not armed in like manner to the offender, although in some circumstances perhaps there could be vulnerability in that situation, and an unsuspecting victim is ordinarily not thereby vulnerable for the purposes of s 21A(2)(l); defencelessness and helplessness may or may not be because of, for example, disability.

16 If the judge meant more than that, because of his illness, Mr Wade was disadvantaged in meeting the attack, in my view he overstated the vulnerability. However, there was vulnerability. Mr Wade was unwell, and was dry retching; he was distracted and less able to respond to an attack upon him than otherwise he would have been, and the attack was without warning. It would have been better, with respect, if the judge had more clearly articulated the vulnerability he took into account as an aggravating factor, but it is not necessary to take this matter further, since the second ground should be upheld and the applicant must be resentenced. Account can be taken of the correct vulnerability in the resentencing.

Manifestly excessive

17 The maximum penalty for the offence is imprisonment for seven years.

18 The applicant was either 41 or 39 at the time of the offence. The judge found nothing in his background and upbringing, his education and employment or any medical condition material to his commission of the offence. His Honour recounted the applicant’s extensive criminal record, which included offences involving violence and the use of a weapon, and noted the aggravating factor concerning commission of the offence in question while on parole and while on bail for driving offences.

19 After his paras [10] – [20] earlier set out, the judge said -

“21. As to the offender’s prospects for rehabilitation and as to the likelihood of the offender not reoffending, I consider that, having regard to his past, it is obvious that the offender is not motivated towards living a crime free life and that, if he does not get his way, he will resort to the use of violence.”

20 The judge adverted to the aggravating and mitigating factors, and said -

“24. One factor not mentioned in section 21A of the Crimes (Sentencing Procedure) Act is deterrence. I see both personal and general deterrence to be important. Neither can be ignored or overlooked. Having regard to the offender’s criminal past he must be reminded, yet again, and loudly and clearly, that repeat offending will not be tolerated. Others who may think of doing what the offender has done must be deterred from doing so.”

21 The judge concluded -

“27. When I take into account the objective circumstances of the offence, the subjective circumstances of the offender, the purposes of sentencing, the aggravating and mitigating relevant factors referred to above, I have determined that the appropriate sentence to impose on the offender is the maximum sentence of imprisonment for seven years.”

22 His Honour then apportioned the sentence, with the finding of special circumstances to which I have referred. He declined to find special circumstances in a need for lengthy supervision because “the offender’s past has shown that he is not motivated towards living a crime free life”.

23 The judge’s reference to the objective circumstances of the offence appears to have taken up his placement of it “at the top of the range of seriousness for offences of its kind”, and “within the class of worst case of its kind”, see his [18] earlier set out. The applicant submitted that the judge erred in placing the offence within a “worst case” class, it seems thereby coming to the maximum penalty, when the injuries suffered by Mr Wade were relatively minor, certainly far less than other injuries from malicious wounding which might from seriousness or permanence heighten the gravity of an offence. Further, it was submitted, while the judge found that the offence was premeditated, the premeditation was but shortly before the event. To regard the offence as within a “worst case” class wrongly left no room for a significantly worse class or classes.

24 In R v Westerman [2004] NSWCCA 161 the victim, a 5 year old boy, had been very severely beaten, although his injuries were not permanent. The offence was maliciously inflicting grievous bodily harm, under s 35(1)(b) of the Crimes Act, for which the same maximum sentence of seven years imprisonment was provided.

25 The offender was sentenced to seven years imprisonment, and successfully appealed and was resentenced to four years imprisonment. It was accepted that the nature of the injuries did not bring the case within a “worst case” category, but the Crown submitted that the nature of the offender’s conduct in causing the injury brought it within that category. Hulme J, with whom Spigelman CJ and Adams J agreed, accepted in principle that one can find a worst case without being able to categorise the injuries in such an offence as “worst type injuries”, but considered that the injuries were so far removed from worst case injuries falling within the description of grievous bodily harm that the offence should not be regarded as in that category.

26 Similarly, in my view, in the present case. The malicious wounding was unprovoked, and was to the extent described by the judge premeditated. The judge found in the nature and extent of Mr Wade’s injuries an indication of the ferocity of the attack and the applicant’s intention, and it may have been good fortune that Mr Wade was not more seriously injured, but the fact is that he was not; it should also be noted that when Mr Anderson intervened the applicant screamed “Let me up. Let me up. I just want to get out of here.” In my opinion, the offence fell short of a class of “worst case” offence, and to so treat it as the apparent springboard to imposition of the maximum penalty was, with respect, an error in the judge’s exercise of his sentencing discretion.

27 It is thus necessary for this Court to re-sentence. There is no occasion to depart from what the judge said as to rehabilitation and, particularly in the light of the applicant’s criminal history, the need for personal and general deterrence, or (save in regard to vulnerability and confining the aggravating factor of being on conditional liberty to the parole) in other respects from the judge’s bases for his sentencing. I also take into account evidence before this Court of qualified acceptance by the applicant of responsibility for his actions (he does not accept that he initiated the attack) and a present supportive relationship with the benefit of which he hopes to make a fresh start.

28 Counsel for the applicant referred to a number of cases, said to be comparable and to provide guidance towards a lesser sentence than that imposed by the judge. The helpful tabulation of the cases demonstrates the great variety of circumstances bringing a large range of sentences. Comparability is only at a high level of generality, and the resentencing I propose is in my view not out of line with such guidance as can be obtained. The gravity of offence, although not in a “worst case” category, including the aggravating factors of commission while on conditional liberty and the vulnerability earlier described, should be recognised by a sentence towards the prescribed maximum sentence. In lieu of the 7 years, the applicant should be sentenced to imprisonment for 5 years, and with the special circumstances to which the judge referred there should be a non-parole period of 3 years 6 months and a parole period of 1 year 6 months.

29 I therefore propose that leave to appeal be granted, the appeal be allowed, the sentence imposed on 10 August 2006 be quashed and in lieu thereof the applicant be sentenced to imprisonment for 5 years, comprising a non-parole period of 3 years and 6 months commencing on 28 January 2006 and to expire on 27 July 2009 and a balance of term of 1 year and 6 months to commence on 28 July 2009 and expire on 27 January 2011.

30 HIDDEN J: I agree with the orders proposed by Giles JA and with his Honour’s reasons. Like his Honour, I do not find it necessary to determine the ground about the sentencing judge’s finding of vulnerability within the terms of s21A(2)(l) of the Crimes(Sentencing Procedure) Act.

31 HARRISON J: I agree with Giles JA.

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30/05/2007 - Short title - Paragraph(s) Coversheet