R v Morris

[2013] NSWDC 31

District Court

New South Wales

Medium Neutral Citation:	R v Morris [2013] NSWDC 31
Hearing dates:	24 January 2013
Decision date:	24 January 2013
Before:	Berman, SC, DCJ
Decision:	Sentenced to imprisonment . The overall sentence is to consist of a nonparole period of five and a half years, and a period of eligibility for parole of two and half years, making a total sentence of eight years.
Catchwords:	CRIMINAL LAW - Sentence Sexual Intercourse without Consent - Break Enter and Steal - Maliciously Inflicting Actual Bodily Harm
Legislation Cited:	Sentencing Act
Cases Cited:	Fernando v The Queen (1992) 76 ACrimR 58
Category:	Sentence
Parties:	The Crown Jeffrey Allan Morris
Representation:	M Austin - Offender Director of Public Prosecutions Legal Aid Commission
File Number(s):	2011/242564, 2011/270599
Publication restriction:	No publication of the name of the complainants or any material which may tend to identify the complainants

Sentence

1. HIS HONOUR: As a man in his early thirties Jeffrey Morris committed a number of very serious offences. Mr Morris is now much older, in his mid fifties, and whilst he continued to offend after the offences for which he must be sentenced today, he did not repeat the most serious aspects of those offences.

1. The offender faces sentence today for four matters and asks that two matters be taken into account. They are the offence of sexual intercourse without consent committed on 15 September 1988, an offence of break, enter and steal committed on the same day and when I sentence him for the break, enter and steal he asks that I take into account an offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse. He also has to be sentenced for an offence of sexual intercourse without consent committed on 17 February 1990, an offence of break, enter and steal whilst armed committed on the same day and when I sentence him for that, the latter offence, he asks that I take into account an offence of threatening to inflict actual bodily harm by means of an offensive instrument with intent to have sexual intercourse.

1. To put these offences in context Mr Morris was a man who, probably because of a substance abuse problem, committed many, many offences of break, enter and steal until, in about 2004 it would seem, he realised the futility of offending in that way and stopped. Thus his criminal history shows many offences of break, enter and steal both before and after the offences which I must sentence. But isolated within that criminal history are these two incidents in which the offender, as well as committing his usual offence of break, enter and steal, raped two vulnerable young women who were in their homes at the time. Quite why Mr Morris chose to do what he did on these occasions is difficult to determine and indeed no satisfactory explanation has been advanced. For obvious reasons Mr Austin who appears for Mr Morris today does not suggest that his substance abuse had anything to do with it. Given the length and history of substance abuse and the isolated nature of the sexual offending there can be no suggestion of a relationship between those two matters.

1. I will turn now to look in a bit more detail at what the offender actually did. I remind those present that there is to be no publication of anything which would identify or tend to identify the complainants whose names I will refer to in my recitation of the facts in these matters.

1. Ms P lived in an address in Ultimo. She got home sometime between 1am and 2am on 15 September 1988 and went to bed. The house was locked when she did so. At around eleven the following morning while Ms P was still asleep the offender broke a window and entered Ms P's home. She was woken up by the noise from downstairs. The offender went into Ms P's bedroom. Without a word the offender walked to Ms P and punched her to her face splitting her lower lip. Not surprisingly she was petrified and did not move. The offender pulled down his pants, pulled off Ms P's underpants and commenced to have sexual intercourse with her by putting his penis into her vagina. The intercourse lasted about a minute before the offender ejaculated whilst his penis was in Ms P's vagina. After raping Ms P in this manner the offender simply stood up and left, taking, it would seem, Ms P's television and black handbag on the way out. Eventually Ms P phoned emergency services. They arrived and a number of examinations were conducted. They included DNA analysis of the semen which the offender had left behind. It appears that a DNA sample was taken from Mr Morris in 2001 but it was not until much later that the match was made between the semen left behind at Ms P's home and the offender's DNA.

1. The offender was arrested on 15 August 2011 in relation to this matter having previously been arrested in relation to a matter I will shortly deal with.

1. As one might expect any young woman assaulted in the way I have described in the sanctity of her own home would be significantly affected by the experience. Ms P never returned to her house and had to give up her job. One of the fears that she had was that as a result of what had happened to her she had contracted HIV/AIDS. I will be speaking about this later but it must be remembered that when this offence occurred HIV/AIDS was almost inevitably fatal and testing for it was a lengthy process. One can only imagine how awful it must have been for Ms P to have to wait the three months until testing finally revealed a negative result for HIV/AIDS.

1. We now move to 1990, 17 February. On that occasion another young lady Ms RR was home alone. She was eighteen years of age and lived with her family but they were out. There was a knock at the door. Ms RR saw the person who turned out to be the offender. He asked for someone whom Ms RR did not know. She said that she did not know anyone by that name and he left, but he came back. It is important to understand in assessing the objective criminality of this offence that when Mr Morris came back he did so clearly intending to do what he eventually did, that is, rape Ms RR. This was not some spur of the moment decision that he came to when in the course of committing a break, enter and steal. He decided to rape an occupant he surprisingly found inside the premises. It was the offender's plan to go back to the house and to enter it so that he could do what he eventually did. So he did go back to the house and again knocked at the door. When Ms RR opened it again the offender pushed the door open causing Ms RR to fall to the ground. He grabbed her and walked her towards the lounge room saying, "I've got a knife". He pointed something metallic into Ms RR's side, she thinks it might have been a screwdriver rather than a knife but it was certainly a weapon capable of inflicting injury.

1. He then walked her down the hallway towards the main bedroom at the front of the house and once he was there he pulled down her pants and underpants and pressed the metallic object against the bare skin of her waist. She froze with fear, a very understandable reaction in the circumstances which presented themselves. He then forced himself upon Ms RR causing her considerable pain as he had rough penile/vaginal intercourse with her. Eventually he withdrew his penis and ejaculated on the fitted bed-sheet next to Ms RR. He then did up his pants and walked away. Ms RR noticed that she was bleeding from a tear in her vagina. Before calling police she noticed that the VCR player had been taken from her home. She called her sister but could barely speak because she was crying hysterically, and then called Triple-0.

1. Once again DNA analysis was successful with a profile being obtained which was later matched to the offender. The offender was arrested for this offence at his place of employment on 27 July 2011 and has remained in custody since that day.

1. To say that these offences were objectively serious is something of an understatement. The interference with the personal liberty and freedom of both complainants was substantial. It is not an exaggeration to say that they were violated, by a complete stranger who thought nothing about the wellbeing of the complainants, but who was intent only on having intercourse with them, no matter the cost to them.

1. It is to be noted that the form of intercourse which occurred, penile/vaginal intercourse, is traditionally regarded as a form of intercourse which is particularly serious. There is of course the risk of pregnancy. There is the risk of sexually transmitted disease, including, as I have mentioned earlier, what was at that time the inevitably fatal disease of HIV/AIDS and on top of that there is the circumstance that penile/vaginal intercourse is an intensely personal experience.

1. I have to be careful not to double count here and of course I will not, but I do note that on both occasions the offender had forced his way into the homes of the complainants, places where they were entitled to feel secure.

1. I have mentioned the offender's lengthy criminal history before. It resulted from a long history of substance abuse. The offender is an aboriginal man. He was born in western New South Wales but his parents separated when his mother was pregnant with him. He has had little contact with his natural father over the years. His mother remarried a non aboriginal man and the offender has five half brothers. The family had a fairly itinerant lifestyle, moving from town to town in western New South Wales and he left school to assist the family by working. The family eventually came to Sydney which is where the offender's problems with substance abuse really started. He spent many periods in custody and it is only of comparatively recent times that the offender has been able to put his problems with substance abuse behind him. It is to be noted that the offender was working on the day he was arrested and that the offender's last serious offending was in 2004, although there have been a number of driving matters dealt with in the Local Court since then.

1. A psychologist's report was tendered but as I think I have mentioned there is little to explain why the offender would commit serious sexual offences on only two occasions in a long history of property crime. I should note that the offender was on parole at the time of the offences in 1990. He was not actually on any form of conditional liberty at the time of the offences in 1988 but had been charged with a number of offences and was waiting to go to court for them.

1. The offender pleaded guilty to the offences on the indictment but these pleas were late and came on the day of the trial, although an indication that pleas would be entered came a few days earlier. In those circumstances there has been no challenge to the Crown's submission that the discount for sentence should be in the order of ten per cent and that is the approximate discount that I have decided to allow because of the utilitarian benefit of the offender's pleas of guilty.

1. The fact that these offences occurred so many years ago raises many problems in the sentencing exercise. The Court of Criminal Appeal has held that the offender should be sentenced according to the range of sentences which existed at the time he would have been sentenced if he had been detected as the person who committed these crimes soon after they were committed. That is not without its problems. To give a specific example, when would the offender have been sentenced for an offence committed on 15 September 1988? Would it have been before or after the commencement of the Sentencing Act which came into operation in 1989?

1. There has been some difficulty in many cases in assessing the sentencing range for particular offences where those offences were committed at times when sentencing statistics were not kept to the extent that they are now. The authorities say that one tool which can be used is the individual judge's experience. Some judges have more experience than others. Fortunately I am old enough to have been very much involved in the criminal law from the time that these offences were committed.

1. The parties assisted me with submissions and with printouts which confirmed my memory of the way in which offences such as these were treated in the late eighties and early nineties.

1. Another aspect of the sentencing exercise which relates to the length of time which has elapsed between when the offences were committed and now, is that the offender is quite a different person to the person he was back then.

1. As I mentioned earlier, since 2004 he has not committed a break enter and steal offence. He has not committed any sexual offence since 1990. It is not true I suppose to say that he has put his criminal ways entirely behind him but as far as sexual offending is concerned he has demonstrated that what it was which caused him to commit sexual offences in 1988 and 1990 no longer operates on his mind. To that extent he has rehabilitated as far as sexual offending is concerned.

1. A similar thing can be said about break, enter and steal offences. It took longer for the offender to give up offending of that kind but give it up he has. I must not only sentence for the offences but also for the offender as he is today.

1. The offender says that he has no memory of the 1988 offence, but to a psychologist he expressed his remorse for the 1990 offence insofar at least as it concerned the rape of the young girl. The offender did not give evidence today and so as the Crown submits less weight can be given to that expression of remorse but I will accept that the offender is remorseful for what he has done

1. The offender, as an aboriginal man is entitled to have me consider the well known principles in Fernando v The Queen [1999] NSWCCA 66. Often the upbringing of aboriginal children means that they are less able than others to make an informed decision as to whether they will commit crimes or not. Where they are brought up in a community where substance abuse is more common than in other communities, the decision to do what many other people are doing in the community and to abuse substances yourself is one which is more easily made.

1. For those reasons I consider that the Fernando principles do apply to the break, enter and steal offences. But I can see, as I have said before, no relationship between substance abuse and the sexual offending. I can see no relationship between Mr Morris' Aboriginality and his decision to commit serious sexual offences on two young women. It is of course in a more general sense as Mr Austin said the case that the Fernando principles are relevant to the overall sentencing exercise and I have borne those principles in mind.

1. The harm that Mr Morris caused was enormous. A victim impact statement was read on behalf of Ms RR. It speaks eloquently of the harm which is entirely to be expected from a violation of the kind I have described. To commit an offence of sexual intercourse without consent is an offence of sexual violence with often devastating consequences. For that reason notwithstanding the relatively low maximum penalty which applied in 1988 for offences of sexual intercourse without consent, offences of that kind have always been regarded as particularly serious. There needs to be a substantial component of general deterrence built into the sentences I will shortly announce. As Mr Austin suggested, personal deterrence is of less importance perhaps because of the rehabilitation that the offender has achieved. But other reasons for imposing a significant sentence such as retribution and general deterrence remain of great importance.

1. The offender's criminality was very high indeed. One principle which applied in the criminal law for many years, and certainly applied in 1988 and 1990, is that any sentence imposed on an offender must reflect the objective gravity of that offender's crime and as in this case his offending was objectively very serious indeed, a lengthy sentence must result.

1. I will make a finding of special circumstances in the offender's favour. They are based on the circumstances that I will be accumulating sentence and also on the possibility, I put it no higher than that, that the offender would have been dealt with at a time when there was no rule relating to the relationship between a nonparole period and the head sentence. However, as will be obvious when the calculations are done after I have announced my sentence, the variation from the statutory ratio is modest indeed.

1. I impose sentence as follows. For the offence of break, enter and steal committed on 15 September 1988, taking into account the Form 1 matter attached to that offence, I set a fixed term of imprisonment of two and a half years to date from the offender's arrest on 27 July 2011. For the offence of break, enter and steal whilst armed, committed on 17 February 1990, taking into account the Form 1 attached to that matter, I set a fixed term of imprisonment of three years to date from 27 January 2012. Those sentences are fixed terms because of the sentences that I will now announce.

1. For the offence of sexual intercourse without consent committed on 15 September 1988, the offender is sentenced to imprisonment for a nonparole period of three years, to commence on 27 January 2013 and there is a head sentence of five years on that matter. For the offence of sexual intercourse without consent committed on 17 February 1990, the offender is sentenced to imprisonment. I set a nonparole period of three years to commence on 27 January 2014 with a head sentence of five and a half years.

1. Thus, the nonparole period will expire on 26 January 2017 and the overall sentence is to consist of a nonparole period of five and a half years, and a period of eligibility for parole of two and half years, making a total sentence of eight years.

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Decision last updated: 04 April 2013