Morris v The King

[2023] NSWCCA 228

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Morris v R [2023] NSWCCA 228

Hearing dates:

01 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Before:

Ward P at [1];
Harrison J at [2];
Dhanji J at [45]

Decision:

(1) Grant leave to appeal.

(2) Allow the appeal.

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

   (a)    An aggregate sentence of 1 year and 2 weeks imprisonment to commence on 15 September 2023.

(b) Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on Mr Morris is to be served by way of an intensive correction order commencing on 15 September 2023 and expiring on 29 September 2024.

   (c)    The standard conditions of the order will apply, namely,

(i)    Mr Morris must not commit any offence; and

(ii)    Mr Morris must submit to supervision by a community corrections officer for the term of the order.

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

(f)    An abstention condition requiring abstention from alcohol and drugs.

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

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

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – indigenous offender – deprived background - Bugmy v The Queen principles – whether sentencing judge gave effect to these principles having regard to the applicant’s circumstances – re-sentence – intensive corrections order

Legislation Cited:

Crimes Act 1900 (NSW) ss 59(2), 111(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 73A

Criminal Appeal Act 1912 (NSW) s 6(3)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Chan v R [2023] NSWCCA 206

Dungay v R [2020] NSWCCA 209

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Mandranis v R [2021] NSWCCA 97

RO v R [2019] NSWCCA 183

Category:

Principal judgment

Parties:

Kane Adam Morris (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Evers (Applicant)
V Garrity (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/62539

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court at Tamworth

Jurisdiction:

Criminal

Date of Decision:

02 December 2022

Before:

Judge Coleman SC DCJ

File Number(s):

2020/00062539

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Morris was sentenced to 2 years and 4 months imprisonment with a non-parole period of 18 months after the entry of two guilty pleas, to one count of aggravated enter dwelling house with intent to commit a serious indictable offence (being intimidation) and one count of assault occasioning actual bodily harm in company.

The circumstances of the offending were this: Ms Ison, an associate of Mr Morris, incensed at the victim for stealing from her recently deceased father, enlisted him for revenge. The two went to the victim’s house and broke in, before intimidating the victim verbally. Mr Morris then punched the victim in the head twice.

The upbringing of Mr Morris and applicability of Bugmy principles was a live issue at the sentencing hearing. Mr Morris put on a report by psychiatrist Ms Megan Godbee, which detailed an upbringing of poverty, substance abuse and normalised violence among his family, and, later, his associates. His Honour did accept the evidence in the report and accounted for the report as part of the subjective factors on sentence, but explicitly did not accept that the matters were sufficient to affect Mr Morris’s moral culpability with reference to childhood deprivation in the relevant Bugmy sense. The matters were instead characterised as an almanac of self-reported diagnoses given after past recitations of this history to other practitioners.

The Crown on appeal did concede there was potentially error in this approach. However, they did not accept a different sentence would be warranted at law. They pointed to the unprovoked and violent nature of the offending, and submitted that the offending was not causally linked to his mental health concerns in such a way as to lower his moral culpability. They also noted and Mr Morris did accept that his upbringing was not as deprived as others who come before the Court, and to the extent it does weigh on him it was appropriately accounted for by the sentencing judge.

Mr Morris on the other hand submitted that there was a causal link between the index offending and his mental health, most particularly a PTSD diagnosis. The upshot of this was threefold: firstly that it rendered him a good candidate for a sentence with a greater emphasis on rehabilitation as against general and specific deterrence, that reintegration into the community was of importance, and finally that his moral culpability ought to be reduced. Mr Morris was able to point to various positive rehabilitative steps during his incarceration including qualifications, volunteering, and abstinence from drugs and alcohol, as well as strong ties in the community.

The Court held (granting leave to appeal and allowing the appeal):

Regarding applicability of Bugmy:

Per Harrison J (Ward P and Dhanji J agreeing):

1. His Honour did err on sentence in finding that there was no evidence to support a finding that Mr Morris suffered a background of deprivation which was relevant to the sentencing exercise pursuant to Bugmy v The Queen (2013) 249 CLR 571: [13]

On resentence:

Per Harrison J (Ward P and Dhanji J agreeing):

2. Adopting findings of the sentencing judge a different aggregate sentence was warranted at law being two years full time imprisonment: [37]-[38]

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

3. In light of the post-sentence affidavit material which significantly informs the likelihood that Mr Morris’ rehabilitation prospects have improved, accepting safety of the community as paramount, the sentence should be served by an ICO, in circumstances where the seeds of rehabilitation have been well nourished and ought in this case be given the best opportunity to bloom: [36], [39]

4. The term of the ICO ought appropriately to be reduced by 2 weeks and 11 months to account for the time already served in custody, which results in a sentence of fulltime imprisonment of 1 year and 2 weeks, served by way of an ICO: [40]-[44]

Mandranis v R [2021] NSWCCA 97

JUDGMENT

1. WARD P: I agree with Harrison J.

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

Ground 1: His Honour erred in finding that there was no evidence to support a finding that Mr Morris suffered a background of deprivation which was relevant to the sentencing exercise pursuant to Bugmy v The Queen (2013) 249 CLR 571.

Ground 2: The sentencing judge erred in finding that there were no mental health diagnoses in the psychologist’s report, and so finding that there was no link between Mr Morris’ mental health and his offending.

Ground 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.

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:

“I do not think the material supports such a finding, and I do not intend to make such a finding, having regard to the materials that are placed before me. As I have said, the material in the psychologist’s report is not an actual diagnosis by the psychologist based on the history she has taken, rather records other diagnoses reported to her by the offender, based upon histories given by him to those other practitioners.”

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:

“From Mr Morris’ account, his father’s violence had several consequences for him. Violence was normalised for Mr Morris and he internalised distorted beliefs about needing to be ‘tough’. He was also traumatised by his father’s behaviours, but Mr Morris viewed seeking help as a weakness. His other family members also modelled substance abuse and other antisocial behaviours. In this context, Mr Morris had a range of difficulties at school and had few opportunities for corrective experiences. He began associating with likeminded peers who facilitated an early onset of substance abuse. Mr Morris entered adulthood with posttraumatic stress, polysubstance abuse issues and distorted beliefs about violence. These difficulties contributed to the removal of his daughter, which in turn increased his mental health issues, substance use and offending.

Mr Morris’s index offending was precipitated by his association with antisocial peers, drug use, and the perceived need to obtain more drugs, the disinhibiting effects of alcohol and distorted beliefs about the appropriateness of violence.

…

Overall, it appears that Mr Morris has had a long-term history of posttraumatic stress disorder, depression, anxiety, and some OCD behaviours.

…

Mr Morris entered adulthood with posttraumatic stress, polysubstance abuse issues, and distorted beliefs about violence. These difficulties contributed to the removal of his daughter, which in turn increased his mental health issues, substance use and offending.

…

Mr Morris has not had any prior contact with mental health professionals …

Mr Morris added that he did not ask for help because ‘it made me feel weak’. He added that everyone in his small town knew his father and therefore expected Mr Morris to be ‘strong’. It appears he has adopted some unhelpful beliefs about managing emotions through violence.”

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.

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.

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.

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

“35. While the sentencing judge correctly observed that Ms Godbee did not diagnose the applicant as suffering from a psychiatric or psychological condition or disorder (although he had, at times, experienced symptoms consistent with known conditions), it was necessary to consider whether the applicant’s childhood – most relevantly his exposure to violence and alcohol and drug abuse – was such as to reduce his moral culpability for the subject offences. Even making due allowance for the challenges that attend the delivery of ex tempore reasons in the context of a busy District Court list, it would be open to this Court to find that it is unclear from the reasons whether his Honour did so.

36. Further but relatedly, the sentencing judge’s reference to ‘other diagnoses … based on histories given by [the applicant] to those practitioners’ appears to have been in error. As his Honour had correctly recorded earlier in his reasons, the applicant had not had prior contact with mental health professionals.

37. Accordingly, while properly understood the sentencing judge did not find there was ‘no evidence’ that the applicant suffered a background of deprivation, it would be open to this Court to find that his Honour’s conclusion that the applicant’s moral culpability was not reduced on account of that background was attended by error. The respondent accepts that the error is such that it is necessary for this Court to exercise the sentencing discretion afresh.”

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

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.

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.

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:

“Kane, Benny [the victim] has stolen from my dead father, that prick stole from my dead father. He is a fucking thief, how dare he steal from my dead dad.”

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”.

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.

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”.

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.

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

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

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.

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.

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.

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.

22. 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.

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

“… although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender’s moral culpability: Kleindienst v R [2020] NSWCA 98. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence.”

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.

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.

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.

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

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].

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.

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:

“1. I am the applicant in this matter.

2. I was moved to St Heliers gaol after I was sentenced in December 2022.

3. Since I have been at St Heliers gaol, I have had a job in modular building. I was building kits for gaol cells and buildings in the community which have been damaged by the floods. In the past week, I volunteered for a spray-painting job because of a shortage of workers in this area. I am now doing spray-painting work for furniture in schools.

4. I have completed the following employment-related training since I was sentenced:

a. Forklift licence;

b. Crane licence;

c. Elevated Work Platform licence;

d. Vocational Training Program – agriculture;

e. Vocational Training Program – construction.

5. I have attended Narcotics Anonymous and Alcoholics Anonymous every Monday for the past few months. These weekly group sessions have given me the tools to cope with difficult emotions and the foundations to help me stay in recovery. I have not had drugs or alcohol since I have come into gaol.

6. I have also been attending the Kairos Christianity program since March this year. I go to the prison chapel and meet with a group on a monthly basis.

7. I have not been able to access any other programs while in custody. I am willing to do all I can to access rehabilitation programs in the community when I am released so I can stay well and away from alcohol and drugs.

8. A couple of months ago, my mum told me that my brother-in-law tried to end his life by hanging himself. This really shocked me. I was devastated at the time. He and I are very close. I asked to see a psychologist and I am still waiting to see one. I go up to the clinic every couple of days to see whether I am on the list yet to see someone.

9. I was approved to stay in the Dumaresq Centre until the incident with my brother-in-law. I decided at that point to move back into the compound to be with friends because I needed their support. The Dumaresq Centre is a section of the gaol that is more open and relaxed and with no fences and for those inmates who are trusted to behave well.

10. I was eligible for re-classification to C3 in June this year and to be granted works release, but I was told by gaol staff that this would not go ahead while I still have an appeal running.

11. I have the support of my ex-partner, Talia, as well as my mum and my nan. I speak with Talia daily and regularly with my mum and nan.

12. I have had no internal disciplinary charges since I came into gaol except for an incident last month on 18 July. I was caught with a cigarette on me. I was given a caution only for that charge. I was feeling stressed at that time because my nan was not well and I was really worried about her. She is 78 years old and has had 2 broken hips in the past 8 months. She lives by herself in Manilla. I am very close to my nan and use (sic) to help her with everyday chores and intend to go back to helping her as much as I can when I am released.

13. My Legal Aid solicitor told me that a positive urine sample and a missed muster was reported in a case note on 29 May 2023. In relation to the urine sample, I was later told by gaol staff that it was a false positive and I did not get any charge or punishment for it. In relation to the missed muster, I was just really tired on the weekend before the Monday when I missed the muster and had slept in.

14. When I am released, I will live with my mum in Manilla until I find a place of my own. I have a family friend, Paul Ferguson, who has a tree services company called Aura Tree Services. He has told me that he will give me a full-time job with his company doing tree- lopping work when I am released. I speak to him on the telephone regularly.

15. When I am released, I also intend to do all I can to support Talia and our 8-month old son who was born while I have been in gaol. They live in Gunnedah which is close to Manilla where my mum and nan live.”

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.

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.

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:

Count 1: 18 months imprisonment

Count 2: 9 months imprisonment.

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.

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 Mandranisv R [2021] NSWCCA 97. In that decision, Simpson JA observed at [61]:

“Provided that the appropriate term of the sentence is determined before consideration is given to an ICO, it would, if an ICO is found to be appropriate, be acceptable for that term to be adjusted by the deduction of a period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it is made (in compliance with s 71) and is co-extensive with the term of imprisonment (as required by s 70). The sentence actually recorded and imposed would be less (by the length of the pre-sentence custody) than the sentence found to be appropriate to meet the purpose of sentencing.”

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

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.

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.

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.

44. Accordingly, I would propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

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

1. An aggregate sentence of 1 year and 2 weeks imprisonment to commence on 15 September 2023.

2. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on Mr Morris is to be served by way of an intensive correction order commencing on 15 September 2023 and expiring on 29 September 2024.

3. The standard conditions of the order will apply, namely,

1. Mr Morris must not commit any offence; and

2. Mr Morris must submit to supervision by a community corrections officer for the term of the order.

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

(f)    an abstention condition requiring abstention from alcohol and drugs.

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

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

45. DHANJI J: I agree with Harrison J.

**********

Amendments

15 September 2023 - [34] Typographical error corrected

Decision last updated: 15 September 2023