R v Morris

[2017] NSWSC 637

Supreme Court

New South Wales

Medium Neutral Citation:	R v Morris [2017] NSWSC 637
Hearing dates:	18 May 2017
Date of orders:	18 May 2017
Decision date:	18 May 2017
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	Sentenced for murder to imprisonment for 17 years with a non-parole period of 12 years.
Catchwords:	CRIMINAL LAW – sentence – murder – single blow to the deceased’s throat with a hammer in the course of a struggle – no premeditation – intent to cause grievous bodily harm – where offender showed genuine remorse – where offender’s mental illness an operative cause of offending conduct – reduced moral culpability – reduced weight of denunciation and general deterrence – low risk of re-offending – special circumstances – low range of offending
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Aslan v R [2014] NSWCCA 114 Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 R v Elphick [2002] NSW CCA 273 R v Hines (No 3) [2014] NSWSC 1273 R v Neave [2012] NSWSC 229 R v Valiukas [2009] NSWSC 808 R v Joiner [2001] NSWSC 1163 Green v The Queen (2011) 244 CLR 462; [2011] HCA 89 Wong v The Queen (2011) 207 CLR 584; [2001] HCA 64
Category:	Sentence
Parties:	Regina (Crown) Meirion Thomas Morris (offender)
Representation:	Counsel: Ms Kate Ratcliffe (Crown) Mr James Trevallion (offender)   Solicitors: Mr Paul Stanley, Office of the Director of Public Prosecutions (Crown) Aaron Kernaghan, Kernaghan & Associates (offender)
File Number(s):	2014/353930
Publication restriction:	Nil

Judgment

1. On 8 May 2017 Meirion Thomas Morris was arraigned on a charge that on or about 25 November 2014 at Wollongong he did murder Jade Cady. On 17 May 2017 following his trial the jury returned a verdict of guilty. He had entered a plea of not guilty of murder but guilty of manslaughter which the Crown did not accept.

2. The offender is now before the Court for sentence facing a maximum penalty of imprisonment for life pursuant to s 19A of the Crimes Act1900 (NSW). That maximum may be reduced to a specific term of years pursuant to s 21(1) of the Crimes (Sentencing Procedure) Act1999 (NSW) but not if the Court is satisfied that “the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through” a sentence of life imprisonment. The words quoted are from s 61(1) of the Crimes (Sentencing Procedure) Act. For reasons which will appear later in these remarks I consider I should fix a finite term. In doing so I will have regard to the standard non‑parole period of 20 years which applies to murder under Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act.

Victim impact statements

3. Before considering the circumstances of the offence and the background of the offender I will refer to the victim impact statement of Julie Cady, younger sister of the deceased. This was tendered to the Court in the proceedings on sentence. It informs the Court that the deceased had three siblings: an older sister and a younger brother as well as Julie. They were all quite close in age. The deceased was 36 years at the time of his death.

4. At the time he was killed Jade Cady’s mother was still alive, then aged 62 years. She died some six weeks after learning of her son’s death. The Court acknowledges the very understandable statements of the grief that has been felt by these family members and of the continuing impact that the murder has had upon them. In accordance with s 28 of the Crimes (Sentencing Procedure) Act those matters are taken into account in determining what penalty should be imposed upon the offender.

5. In the balance of these reasons I will make reference to, amongst other things, the degree of objective seriousness of the manner in which this murder was committed and to the measure of the offender’s moral culpability. It may be difficult for the deceased’s surviving family members, who have attended the trial and are present to hear sentence passed, to accept that this murder should be categorised as relatively less serious than many other murders, on the spectrum of such crimes. The Court has to pass sentence for murders committed in a very wide variety of circumstances. The length of the sentence to be imposed must be measured to the assessed degree of criminality of the offender. Any murder is a very serious offence. The fact that Meirion Morris’ term in prison will be shorter than terms imposed in other murder cases of course does not reflect any devaluation of Jade Cady’s life. All human lives are treated as equally precious in the criminal law. Other factors determine whether the taking of a life should, in the particular circumstances of the crime, be more or less heavily punishable.

Manner of commission of the offence

6. The offender was 57 years of age at the date of the offence. Since 2010 he had lived in Unit 18 of the apartment block in New Dapto Road where the homicide took place. He had suffered some form of mental illness characterised by psychosis since at least 1993, at which time he was aged 36 years, and probably for a decade before that.

7. Medical evidence from psychiatric specialists given in the trial is to the effect that in all likelihood the catalyst for his mental illness was the abuse of mind altering substances during his twenties. From early 1993 he was in receipt of Commonwealth Disability Benefits on the basis of his incapacity through mental illness. He received intermittent psychiatric medical attention from 1993 up to the date of the offence. Diagnosis and treatment was frustrated by his continuing use of illicit drugs, predominantly organic and synthetic cannabis, and by his failure to adhere to medical guidance in particular with respect to taking antipsychotic medication.

8. The deceased lived next-door to the offender’s unit, in number 17. He had lived there for the entire period of four years in which the offender occupied number 18. They did not socialise together to any significant extent and spoke to each other only briefly and on infrequent occasions. The longest encounter recalled by the offender was a conversation of 10 to 15 minutes at the Wollongong Train Station at some time during that four year period.

9. The deceased suffered from schizophrenia. He was visited fortnightly by a registered psychiatric nurse who injected him with an antipsychotic drug. Neither the offender nor the deceased had employment. Both were users of cannabis in one form or another. The deceased also apparently used methyl amphetamine approximately fortnightly.

10. At the time of the offence the offender predominantly used synthetic cannabis. This had been the case during the immediately preceding three and a half years. Exceptionally he had used methyl amphetamine on the day before the homicide.

11. Approximately three weeks before the offence the offender requested Mr Cady to procure for him an ounce (28 grams) of organic cannabis for $300. Mr Cady was able to do this through his niece and her boyfriend. These two brought the drug to the apartment block. The offender paid the $300 and Mr Cady delivered to him the cannabis but only after having removed about one‑quarter of it (approximately 7 grams) for himself. He did not tell the offender that he was doing this but the offender noticed. In his own words the offender was “peeved” although he did not say anything at the time.

12. On Monday 24 November 2014, the offender went to the deceased’s unit and gave him a fishing rod which the offender had found. I have no basis for finding that this was anything other than a genuine social gesture, as it appeared on its face to be. At about 7:00 pm on Tuesday 25 November 2014 the offender smoked synthetic cannabis and was heavily affected by it. At 11:00 pm he knocked on Mr Cady’s door at Unit 17 and asked if he would like to come into the offender’s unit for “a couple of cones”. That is, to smoke cannabis. The offender had at that time one or two grams of synthetic cannabis which they could share.

13. Mr Cady accepted the invitation. As soon as they were inside Unit 18 and the offender had closed the door he commenced to complain to Mr Cady about the short weight of the cannabis which had been supplied three weeks earlier. The offender gave evidence in the trial, which I accept, that he had not planned to confront Mr Cady on the subject when he invited him in. He was annoyed at having been “taxed” (as he put it) by the amount of approximately seven grams. The offender referred to this as a common occurrence in illicit drug supply. The offender said he had been annoyed ever since the event. However he stated he was not on this score angry when he issued the invitation to the deceased to come to his unit.

14. According to the offender he was lonely and that was the reason for having invited Mr Cady in. This was uncharacteristic. The offender was suspicious and mistrustful of all people to a pathological degree and had never invited Mr Cady into his unit over the preceding four years. The offender avoided people and spent nearly all of his time alone in his unit or walking the streets or in the Wollongong library. But he was then, and apparently remains, a man of very unusual and erratic personality. I accept on the balance of probabilities that he issued a purely social invitation which was out of character and exceptional to his usual habits. I am not satisfied to any standard of proof that he invited Mr Cady into his flat for the purpose of starting an argument, let alone for the purpose of causing him harm.

15. When the offender went to the door of number 17, he observed that Mr Cady’s flatmate was present. He thought he also perceived at least one other person in the unit. The offender extended his invitation to come and “smoke a couple of cones”, through Jade Cady at the door, to the other person or persons in the unit. This was declined and only Jade Cady went with him. I do not consider that the offender would have so extended his invitation to others present if he was intending a confrontation with Jade Cady.

16. I accept on the balance of probabilities that the offender commenced the confrontation concerning the earlier drug supply spontaneously. That was a very awkward thing for him to have done with a man whom he had just sought out for company. But awkward social conduct is not surprising in the offender given his negligible social experience from day-to-day over the 20 years leading up to this point. The Crown submitted I should be satisfied beyond reasonable doubt that the offender invited Jade Cady in for the purpose of confronting him about the earlier drug transaction. Even if that were so (contrary to my finding) it would not have any bearing on the objective seriousness of the offence. The Crown did not submit that I should find the offender intended, in issuing the invitation, to start a physical altercation. I am comfortably satisfied that he did not.

17. I find, on the balance of probabilities, first, that the offender sought to embarrass Mr Cady about cheating him over the ounce of cannabis. He sought to do this by confronting him about the event orally. He hoped this would cause Mr Cady to put the offender in direct touch with the person from whom Mr Cady had obtained the drugs. The intent on the offender’s part was to remove the possibility of being “taxed” on any future occasion. The offender gave evidence which I have no reason to doubt that he had previously pursued this tactic with other persons through whom he had purchased drugs when he sought to avoid being cheated of part of the supply. Secondly, I find that Mr Cady reacted angrily and badly to the offender’s complaint about the earlier transaction. He began to shout at the offender. This caused the latter to become alarmed and to try to silence Mr Cady by punching him in the stomach to wind him.

18. During the trial the offender gave evidence that he feared Mr Cady, by shouting, would attract his friends (of whom the offender believed there were at least two) to come from Unit 17 into Unit 18 to bash the offender. Having regard to the way in which the issues were left to the jury they must be taken to have rejected this. Their verdict indicates that they found the Crown had excluded beyond reasonable doubt that the offender held any belief that he needed to defend himself physically. I am, however, satisfied that the offender was panicked by Mr Cady’s loud and angry reaction to being confronted about the previous short supply of cannabis and that he unnecessarily and irrationally perceived a need to subdue Mr Cady. This finding is independent of any proposition that he considered that he needed to do this for the purpose of self-defence.

19. The offender’s punch to Mr Cady’s stomach did not quieten him. The two men grappled with each other. The offender was able to put an effective chokehold on Mr Cady from behind. He placed the crook of the elbow of his right arm against Mr Cady’s throat. He described in evidence how he used his left arm in connection with the right, putting his left hand behind Mr Cady’s head so that any attempt by Mr Cady to dislodge the chokehold would only apply more pressure to the back of his own head and increase the force against his throat and the restriction of his airway.

20. As described by the offender and as I accept on the balance of probabilities, the chokehold restricted Mr Cady’s breathing and caused him to become limp. When the offender eased the chokehold Mr Cady resumed shouting and struggling. The offender re-applied the hold. Mr Cady and the offender struggled in this manner, with the offender maintaining the chokehold, until by some means they fell to the floor, both on their backs with Mr Cady on top. The offender was underneath still with his right arm around Mr Cady’s neck.

21. The offender gave evidence, which I accept on the balance of probabilities, that when he released the chokehold and pushed Mr Cady off him whilst both were on the floor, Mr Cady resumed struggling and shouting. A hammer lay on a coffee table nearby at eye level to the offender, who was at this point sitting or crouched on the floor. The offender seized it and swung it at Mr Cady’s throat. He struck a substantial blow which fractured Mr Cady’s thyroid cartilage and did other damage to the bony and tissue structures of the neck. The offender struck three further much lighter blows to the throat. Mr Cady’s windpipe collapsed as a result of the first blow to his throat and he suffocated.

22. I am satisfied that the first, harder blow did the fatal damage. That appears to me to be supported by a combination of the evidence of the offender and of the Crown’s forensic pathologist, Dr Brouwer. The forensic medical evidence would not support a conclusion that the fatal injury to the deceased’s throat resulted from the cumulative effect of lighter blows.

23. The offender has said and I accept that he was exhausted by this struggle. At the date of the offence he weighed 64 kilograms. The deceased was shorter than himself, at 167 centimetres, and weighed 62.5 kilograms. The deceased was 20 years younger than the offender. Photographs of the offender at the time show that he had minimal muscle bulk and tone. This was consistent with his account of very poor nutrition over many years and minimal physical activity from day to day. I find it readily believable that the accused was exhausted by the brief struggle up to the point where both men were on the floor and that in an irrational panic – the same panic that had caused him to try to silence Mr Cady in the first place – he seized the hammer and struck the hard blow.

24. I am satisfied that the hammer lay on the coffee table by chance. Other tools were laid out on the kitchen bench opposite. The offender said that at least some of them were used by him in preparing cannabis to smoke. A number of items lay untidily on the coffee table and on the kitchen bench. The Crown did not submit that the offender had placed the hammer there in readiness or that violence had been planned ahead. That was an appropriate stance by the Crown. There is no evidence on which I could have made either such finding.

25. In the sequence of events which I find occurred there was very little thought given to the striking of this blow. There was barely enough time for the offender even to have formed the intent which the jury must be taken to have attributed to him. Namely, the intention to inflict at least grievous bodily harm on the deceased. The jury’s verdict is of course silent as to whether the intent was to cause death or to cause grievous bodily harm. I am not able to be satisfied beyond reasonable doubt that it was the former. Rather I find that he intended only to inflict really serious injury on Mr Cady.

26. The offender gave evidence that he intended to do no more than bruise the deceased, with the aim of silencing him. The jury must be taken to have rejected that and their finding will be given effect. Their conclusion was supportable on the basis, at least, that to swing a hammer at a person’s throat would almost necessarily involve intent to inflict grievous bodily harm.

27. The Crown led evidence of an additional injury to the back of the deceased’s head which was semi-circular or crescent shaped and could conceivably have been caused by a hammer blow. A claw hammer with a 30 mm diameter head was found in Unit 18 and was evidently the murder weapon. The Crown urged in the course of the proceedings on sentence that the Court should find this laceration to the back of the deceased’s head was also caused by the offender with the hammer. It was argued that upon that finding the Court would perceive that the course of violence by the offender against the deceased was more extensive and more serious than he has acknowledged.

28. The alternative possibility with respect to the causation of this second injury is that the deceased may have struck his head on the aforementioned coffee table as he went to the ground. The table was in the vicinity where the two landed on the floor. It was placed in a right angle corner of the wall nearby. It is quite reasonably possible that if the back of the deceased’s head struck the edge of it as he went to the ground, the table would not have been moved significantly. Because of the way in which it was in contact with the wall on two of its sides an impact on one edge of it may well have simply wedged it more firmly against the wall and would not necessarily have upset it. The evidence was that the items on the surface of the coffee table were not dislodged in the course of the altercation.

29. The offender was asked whether the deceased struck his head on this piece of furniture as he went to the ground. He was not able to say. That state of the offender’s evidence is not inconsistent with the reasonable possibility that the deceased hit his head on it. From the photographs in evidence the table appeared to have a relatively sharp right angled edge of Formica or some other similar laminate. The nature of the brief struggle between the two men was such that one would not expect the offender necessarily to have been aware of that contact if it occurred.

30. Dr Duflou, a forensic pathologist of considerable experience who was called in the case for the accused, considered that because of the curvature of the occipital region of the deceased’s head where this injury was sustained, contact with a straight edge could have inflicted the crescent shaped laceration. Dr Brouwer who gave evidence for the Crown is also a highly experienced forensic pathologist. Her view was that the injury was more likely consistent with having been caused by the hammer. However she acknowledged there was no underlying skull fracture as would be common with a hammer blow and she could not positively exclude that the laceration may have been caused by the curved surface of this part of the deceased’s head striking a straight sharp edge, if there was such an edge with which he could have come in contact when falling.

6. Just as Dr Brouwer is not able to exclude that possibility, nor am I. I cannot be satisfied beyond reasonable doubt that this additional injury was inflicted by the offender wielding the hammer.

7. I find on the balance of probabilities that the struggle with the deceased from its commencement was spontaneous and occurred in circumstances where the offender had intended no more than a verbal confrontation, but then initiated a physical fight by punching the deceased as a reaction in panic when the deceased commenced to shout angrily.

8. Having punched Jade Cady in these circumstances, I find that the offender had in effect started something he could not finish in a manner safe to himself, as he perceived the situation. This was not a vicious, brutal, callous or sustained attack by the offender. The fatal blow was delivered without premeditation, in panic, in the heat of a quarrel over a trivial matter. The quarrel escalated over a very brief period up to its tragic end. The blow was conceived of and executed in an instant. The outcome was devastating but the objective seriousness of the offender’s conduct was low in the range of acts which may constitute murder.

9. The offender realised after a short period that the deceased was not breathing. He found no pulse. When he realised that Mr Cady had died, the offender drew garbage bags over the body and dragged Mr Cady’s body into a built-in wardrobe in his bedroom. He closed the bedroom door and attempted to seal the foot of the door with a towel. He mopped up the blood of the deceased from the kitchen floor. I accept his evidence that all of this was done to buy time before discovery of the homicide in circumstances where he was resigned to being caught and being sent to prison for what had occurred. I accept that the offender felt and still feels genuine remorse for having killed Jade Cady. His efforts to conceal the crime are not inconsistent with that. They were intended, as I find, only to have a temporary effect. His actions after the event do not in my view indicate callousness or indifference to what had occurred.

10. He was arrested on 1 December 2014, having spent the intervening days in Sydney aimlessly wandering and sleeping on trains. He returned to Wollongong “to face the music”, in his own words. Upon arrest he immediately admitted having killed the deceased.

11. In short the features of this murder which make it objectively less serious than so many others that come before the Court include the lack of premeditation for the altercation in which the fatal blow was delivered, the lack of any premeditation with respect to the blow itself, a spontaneous single strike in the heat of a physical struggle which had escalated very quickly and was very brief overall and an intention only to cause grievous bodily harm and not to kill.

Subjective circumstances

37. The offender was born in 1957 in Wales. At age three his parents migrated to Australia with him and two siblings who were some years older. He has never had a close relationship with his siblings. At age 13 the offender’s parents took him back to Wales with them. The older brother remained in Australia.

38. He completed his schooling in Wales and was amongst the leaders of his class during his final years. He left school at age 17 years. In his 20’s in Wales the offender embarked upon a course of drug abuse which in time was to trigger the mental illness which has been identified by psychiatric experts in this case, and to which I will refer in more detail shortly.

39. On his own evidence for several years in his twenties he consumed what he called “magic mushrooms” in enormous quantities for two to three months each year during a season in which these fungi grew in Wales, commencing in November. The mushrooms contained some hallucinogenic constituent which has not been identified in the evidence. It produced an altered state of the offender’s consciousness which he must have found appealing but this together with copious quantities of cannabis, which he smoked during the mushroom off-season, and numerous other intoxicants and hallucinogens with which he has experimented, upset his neuro chemical processes sufficiently to render him intermittently psychotic and permanently mentally impaired.

40. The psychiatrists acknowledge that a disposition to mental disorder of schizophrenic type commonly emerges in a patient’s twenties and may well be triggered by the use of mind altering substances. The effect of the offender having precipitated mental disorder and otherwise damaged his health with drugs is that he has entirely corrupted the functioning of his brain. He has for about 30 years suffered intermittent psychosis and his intellectual capacity has for practical purposes been destroyed. Part of the result has been to disrupt his thinking processes and to fill his head with absurd ideas and imaginings. These have dominated his life since his return to Australia in 1993 at the age of 36 years. I have earlier referred to his incapacity, his treatment for mental illness and his drug taking since that time.

41. Three psychiatrists have diagnosed that the offender suffered at the date of the offence and still suffers either schizophrenia (or some mental disorder on what Dr Allnutt termed the spectrum of schizophrenic disorders) or schizotypal personality disorder. Two of the psychiatrists who examined him and gave evidence in the trial and whose evidence was further expanded by the tender of reports during the sentence proceedings have found it difficult to distinguish between the possibilities of the offender suffering schizophrenia on the one hand or a personality disorder of schizoid type on the other hand.

42. The precise diagnosis does not matter for sentencing purposes. On any view he had at the time of the offence a tendency to psychotic episodes and his mind was dominated by irrational fears, conspiracy theories and anticipation of the apocalypse. He was afflicted by a strong and pervasive paranoia, making him fearful and mistrustful of others and causing him to withdraw socially.

43. Despite this, in giving evidence the offender was articulate, responsive and internally logical. He was coherent and reliable in recounting relevant events. He thus exhibited his residual intelligence, providing some insight to what he might have been but for the precipitation of his mental illness through drug use. I accept that he has not used illicit substances during his remand in custody, which has been two years and five and a half months from 1 December 2014 up to today. I also accept that he has taken prescribed medications for his underlying mental illness during this period.

44. The ongoing manifestation of the offender’s mental disorder lies in the contents of his thoughts and ideas. He believed at the time of the offence and appears still to believe that all of humanity is satanic. He feared that people wished to read his thoughts and that they could do so. To avoid this he had a habit of being secretive and furtive in selecting and reading books in the library near to where he lived. He believed that signs and pieces of information were communicated to him through the television and the radio. Before the offence was committed he was accustomed to sit in his unit asking himself questions, believing that the answers were appearing on the television screen. Walking on the streets he would interpret traffic signs and colours of objects around him as communicating information to him. For decades he has been preoccupied with the expectation of an imminent apocalypse. For many years up to the date of offence he was avoidant of all contact with others, whom he feared irrationally.

Contribution of mental illness to the offence

45. I am satisfied on the balance of probabilities that the offender’s mental illness particularly his chronic paranoia contributed significantly to his commencement of the physical altercation with Jade Cady on the late evening of 25 November 2014. His paranoia and consequent social isolation deprived him of sufficient judgment and clarity of perception to be able to air his dispute with Jade Cady in a controlled and restrained manner. I accept Dr Allnutt’s opinion that his mental illness made him prone to misperceiving events and situations. I find that that occurred on this occasion. He became irrationally alarmed and saw a need to silence the deceased, when there was no such need, simply because the deceased reacted angrily to the matter with which the offender confronted him.

46. That is not to say that his illness caused him to believe he needed physically to defend himself. The jury have rejected that proposition. But his illness in my opinion played a major part in precipitating the altercation. I also find that this same paranoia, impairment of judgment and poor appreciation of events contributed to him carrying on the struggle with Jade Cady and furthering the attempt to subdue him after the offender had commenced the physical aspect of their confrontation with a punch.

47. This irrational panic about trying to quieten the deceased was in my view at least in part caused by his abnormal paranoia. Panic reached the point where he swung the hammer. In his own words, during the struggle “the paranoia gripped me”. I accept that.

48. In forming these conclusions I have given significant weight to Dr Allnutt’s opinion which was given to the jury at T455 in these terms:

“Q. Are you able to give an opinion as to whether or not his mental condition would have affected on the evening of 24 November 2014, … his capacity to understand events?

A. I do think it would have affected his capacity to understand events. … even a person with schizotypal personality disorder is prone to distortion in understanding events. I mean if one has a paranoid perspective of things and one tends to interpret things in a negative way … in an exaggerated way to what is happening in reality then that’s a disturbance in your understanding of events so by virtue of having a diagnosis of schizophrenic spectrum disorder and having a history of paranoia then he would be … impaired to a degree in his capacity to understand events because he would distort them in a negative way, in a paranoid way.”

49. Dr Eagle considered that neither the offender’s understanding of events nor any other faculty relevant to s 23A of the Crimes Act was impaired by his mental illness at the time of the offence, based upon his own account of what had occurred. At T 268 – 273 she was able to reconcile all of his actions to what might rationally have been done and understood by a person with no such disorder.

50. Whether he was impaired in the manner described by Dr Allnutt is ultimately a question of fact. My finding in this regard is not inconsistent with the jury’s verdict. They have not necessarily rejected that the offender suffered a substantial impairment by abnormality of mind but must, at least, have considered that if such an impairment existed it was not sufficient to warrant reduction of criminal liability from murder to manslaughter. Having seen the offender in the witness box over some hours and taking into account his description of the way in which the altercation began, escalated and finished (which I accept) I find there is a strong inference that his paranoia and general tendency to misperception must have been significant operative causes of his behaviour, including the delivery of the fatal blow. I do not find persuasive Dr Eagle’s rationalisation of his behaviour or her accommodation of it to what might have been done by a mentally well person.

Significance of mental illness to sentence

51. Applying the principles in Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] as recapitulated in Aslan v R [2014] NSWCCA 114, I consider the offender’s moral culpability for this murder is to a significant degree reduced because commission of it was contributed to, in the manner I have attempted to explain, by his underlying mental illness. Whilst the jury necessarily did not consider any impairment by mental illness sufficient to reduce the verdict, I am required to determine whether it was nevertheless sufficient to require moderation of the sentence for murder.

52. Section 3A(f) of the Crimes (Sentencing Procedure) Act provides that one of the purposes of sentencing must be to denounce the conduct of the offender. This requirement is of less weight and the sentence to be imposed should accordingly be less severe when denunciation must be restrained or muted having regard to the mental illness under which the offender has acted.

53. A further purpose of sentencing by force of s 3A(b) is to provide general deterrence to others who might commit a similar crime. Again the appropriateness of this consideration is to a degree reduced and the sentence should accordingly be less severe where the offender is not a suitable vehicle through which to effect and communicate such general deterrence. That is this case. General deterrence cannot be completely disregarded but it is of qualified and reduced influence in determining the length of sentence.

Rehabilitation, remorse

54. The offender has no criminal record. Nor has there been tendered on sentence any evidence that he has ever before in 40 years of adult life up to the date of this murder come to the attention of authorities for any act of violence. I find there is a very low risk of him reoffending even allowing for the potential that his mental illness may lead him into a situation in which he might act uncharacteristically, through paranoia and panic. This assessment is dependent upon his co-operation with medical treatment.

55. I assess that this event has been immensely sobering for him. He gave evidence that when he realised he had killed the deceased he thought his life was over, that he had nothing ahead of him but cancer and gaol. The former was a reference to a type of leukaemia with which he was diagnosed some years ago but which is presently in remission. Evidence of this was given by the offender himself without supporting medical opinion. However, I accept this aspect of his medical history as he was not cross-examined on it and the Crown, which appeared to hold his medical records and to base questions upon them, did not seek to contradict his evidence regarding leukemia.

56. In prison whilst remanded without bail the offender has been free of illicit drugs and has adhered to a regime of psychiatric medication. I consider there are excellent prospects that on release he will maintain this state of mental health management with the assistance of a substantial period of probation.

57. The Crown has disputed that the offender has demonstrated any remorse. I find to the contrary. His plea of not guilty of murder but guilty of manslaughter demonstrated acceptance of criminal responsibility for having caused Jade Cady’s death albeit that it did not include admission of intent, which was expressly disputed in his evidence but which has been found by the jury. The accused gave evidence that he had no serious hostility to the deceased and I am satisfied that he had no intention of killing him. Although the accused was certainly not effusive or direct in expressions of remorse when he gave his evidence in the course of the trial I attribute that largely to his generally flat affect. The psychiatrists who gave evidence all regard that as a symptom of his mental illness. I consider on the balance of probabilities that he is entitled to be treated on sentence as having shown remorse for what he has done.

Section 21A Crimes (Sentencing Procedure) Act

58. I have considered the numerous aggravating and mitigating circumstances listed in s 21A of the Crimes (Sentencing Procedure) Act which a sentencing court is required to take into account. There are none applicable to this case other than those which I have already mentioned in the course of considering the objective seriousness of the offending and the offender’s subjective circumstances.

Section 22A Crimes (Sentencing Procedure) Act

59. Section 22A provides that the penalty which might otherwise be imposed may be discounted in some measure in a case where an offender has facilitated the course of justice by making appropriate admissions and minimising the degree to which he contests the charge. His counsel has sought that a discount should be applied to his sentence in this case on that account and I was initially receptive to that submission. However on reflection I do not consider that such a discount would be justified.

60. The discount that can be allowed on such a basis is in any event generally regarded as being limited to the minimum that might be given for a plea of guilty, that is to a proportion in the order of 5% to 10%: see the decision of Hamill J in R v Hines (No 3) [2014] NSWSC 1273 at [9]. Here the first two elements of murder were virtually incontestable, namely that the deceased had died and that it was a voluntary act of the offender which had caused death. The only element of the charge which could be resisted on any realistic basis was that of intention. The offender did dispute his intention and he also put in issue defences of self‑defence and of abnormality of mind, which the jury did not uphold. I do not consider that any measurable benefit to the administration of justice has been achieved by the offender’s approach to the case and will not allow the discount that has been sought on this basis.

Section 44 Crimes (Sentencing Procedure) Act

61. Under s 44 of the Crimes (Sentencing Procedure) Act, the non-parole period may be less than 75% of the overall term if special circumstances are demonstrated. There are, in my view, special circumstances in this case. In particular: the improbability of the offender committing any other offence of violence, the consequent lack of risk to the community, the desirability of extended supervision to optimise medical control of his mental illness, the offender’s age at the date of sentencing which means that he will be in his 70s when released, the risk that his leukaemia may reassert itself and become symptomatic and the greater hardship that he will endure, relative to other prisoners, of serving his sentence while he is affected by the mental disorder to which I have referred albeit that it is, presently under medical control.

62. On the other hand, as the head sentence for this murder, even at the lower end of the range of seriousness as I regard it, is necessarily of such length that one quarter of it under the statutory ratio is already a reasonably significant period of parole. This may be nearly sufficient to serve the purposes of achieving his transition, at the end of his term, back in to the community. Balancing those considerations I have concluded that a slight adjustment of the sentencing ratio is called for in this case.

Consistency with other sentencing decisions

63. I have reviewed a large number of sentencing decisions of judges of this Court including decisions which have been reconsidered in the Court of Criminal Appeal. I have found there to be some degree of comparability of objective seriousness with R v Joiner [2001] NSWSC 1163 (considered on appeal at [2002] NSWCCA 354 but only on conviction), R v Elphick [2002] NSWCCA 273, R v Valiukas [2009] NSWSC 808 and R v Neave [2012] NSWSC 229.

64. I will not attempt to analyse the points of comparability and of difference as between those cases and the present but I regard them as some guide to the sentence that should be imposed in this case in order to achieve the objective of consistency of sentencing. As the High Court has said in the cases of Wongv The Queen (2001) 207 CLR 584; [2001] HCA 64 and of Greenv The Queen (2011) 244 CLR 462; [2011] HCA 49 the Court must endeavour to impose like sentences in like cases. Of course there must be differences where there are material points that differentiate the case before the Court from others in which sentences for murder have been passed. In its combination of moderate objective circumstances and subjective factors which reduce the offender’s moral culpability I find this case to be conspicuously at the lower end of the scale for measure of punishment.

Sentence

65. The offender has been in prison awaiting his trial from the date of his arrest on 1 December 2014. There is no reason why his sentence should not date from then. For all of these reasons, the sentence is as follows:

1. For the murder of Jade Cady at Wollongong on or about 25 November 2014, Meirion Thomas Morris is sentenced to imprisonment for a non-parole period of 12 years commencing 1 December 2014 and expiring 30 November 2026 and a balance of term of five years commencing 1 December 2026 and expiring 30 November 2031.

2. The offender will be eligible for release on parole at the expiry of the non-parole period.

3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act2006 (NSW) the offender is notified that the provisions of that Act apply to him and to the offending the subject of these proceedings.

**********