R v Morris

[2006] NSWDC 68

CITATION:	R v Morris [2006] NSWDC 68
HEARING DATE(S):	15/05/06-22/05/06 14/07/06
JUDGMENT DATE:	10 August 2006
JUDGMENT OF:	Nield DCJ at 1
DECISION:	Offender sentenced to imprisonment for a total period of 7 years with a non parole period of 4 years, 6 months to commence on 28/1/06 and to expire on 27/7/10, and a parole period of 2 years, 6 months to commence on 28/7/10 and to expire on 27/1/13 with supervision by the NSW Probation and Parole Service whilst on parole during the parole period
CATCHWORDS:	Criminal law - Malicious wounding - Sentencing after trial - Within class of worst case of its kind - Aggravating and mitigating factors - Date for commencement of sentence
LEGISLATION CITED:	s.35(1) Crimes Act 1900 s.3A; s21A Crimes (Sentencing Procedure) Act
CASES CITED:	R v El Masri (2005) NSWCCA 167 R v Gent (2005) NSWCCA 370 R v Callahan (2006) NSWCCA 58
PARTIES:	Regina Mark Anthony Morris
FILE NUMBER(S):	05/31/0363
COUNSEL:	Mr A. Tillers (Crown) Mr R. Pontello (Offender)
SOLICITORS:	Mr D. Hewitson (Crown) Ms B. Duchen (Offender)

HIS HONOUR: As to the sentencing of Mark Anthony Morris.

1. The offender is Mark Anthony Morris. He was born on either 22 March 1964, as per the records of the New South Wales Police, exhibit E1, the Victorian Police, exhibit E2, the New South Wales Department of Corrective Services, exhibit FF, and the New South Wales Probation and Parole Service, exhibit GG, or 22nd September 1965, as per the report of Ms Duffy, psychologist, exhibit 2. Accordingly, he was aged either forty-one years three months, or thirty-nine years ten months when on 22 July 2005 he committed the subject offence.

2. The offender’s background and upbringing are referred to in the report of Ms Duffy. He is the eldest of his parents’ five children. He had two brothers and two sisters. His parents are alive. The younger of his two brothers died during 1994. His other brother and sisters are alive. Although I accept that his background and upbringing played a part in shaping the way that he has lived his life, there is nothing, so far as I am aware, in his background or upbringing relevant to his commission of the subject offence.

3. The offender's education and employments, like his background and upbringing, are referred to in the report of Ms Duffy and, like them, there is nothing, so far as I am aware, in his education or employments relevant to his commission of the subject offence.

4. The offender is, so far as I am aware, single, never having married, and he does not have anyone dependent upon him.

5. The offender’s state of health, both physical and mental, is referred to in the report of Ms Duffy and need not be recited. There is nothing to show or to suggest that any medical condition of the offender caused or contributed to his commission of the subject offence.

6. The offender’s past abuse of intoxicating liquor and prohibited drugs is referred to in the report of Ms Duffy and need not be recited. There is nothing to show or to suggest that the offender was under the influence of or even affected by intoxicating liquor or any prohibited drug when he committed the subject offence.

7. The offender does not have an unblemished character. He has a criminal record in New South Wales, see exhibit EE1, and Victoria, see exhibit EE2. In New South Wales he has been dealt with for fifty-nine offences, thirty-three in a Children’s Court, fifteen in a Local Court, ten in the District Court and one in the Supreme Court, and in Victoria he has been dealt with for two offences. Of the offences dealt with in New South Wales two involved the use of violence, being assault dealt with on 16 March 1984 and assault occasioning actual bodily harm dealt with on 20 June 2000, and one involved the use of a weapon, being armed robbery dealt with on 5 December 2000, and of the offences dealt with in Victoria, one involved the use of both violence and a weapon, being murder dealt with on 30 June 1988. I think that it is interesting to note from the remarks of Justice Teague on sentencing the offender for murder, see exhibit EE3, that the offender blamed the murdered victim for what had happened, just as he when interviewed by police and by his counsel’s cross-examination of the Crown’s witnesses, blamed the complainant for what had happened.

8. The offender was on conditional liberty at the time when he committed the subject offence.

9. On 5 December 2000 the offender was sentenced by a judge of this Court to imprisonment for seven years, with a non-parole period of four years six months from 18 February 2000 to 17 August 2004, and a parole period of two years six months from 18 August 2004 to 17 February 2007, for the offence of armed robbery. He was released from prison on 24 April 2005, see exhibit FF, to be on parole to 17 February 2007. He committed the subject offence less than three months after his release from prison. His commission of the subject offence constituted a breach of his parole. This is an aggravating factor of the subject offence. On 26 July 2005 the Parole Board revoked the offender’s parole, see exhibit GG.

10. Moreover, on 13 July 2005, only eleven days before he committed the subject offence, the offender was charged with a number of driving offences and, after he had been charged with them, he was released on bail to appear later in the Local Court at Wyong to answer the charges. His commission of the subject offences constituted a breach of his bail. This is a further aggravating factor of the subject offence.

11. On 24 July 2005 the offender committed the subject offence. At about 1am on that day he attacked Mr Wade Burns when armed with a knife and he wounded Mr Burns a number of times, after which he ran away, taking the knife with him.

12. On 28 July 2005 the offender was arrested and, after being arrested, he was taken to The Entrance Police Station where he was interviewed. The interview was recorded on video and audio tapes. A transcript of the edited interview became exhibit Y2 during the offender’s trial. During the interview the offender admitted having been involved in the incident with the complainant, he denied that he had been armed with a knife and that he had been the aggressor, and he alleged that the complainant had been armed with the knife and that the complainant had been the aggressor. The offender has been in prison since his arrest on 28 July 2006 serving the balance of the sentence imposed upon him on 5 December 2000 for the offence of armed robbery following revocation of his parole on 26 July 2005, see paragraph 9 above.

13. In due course, on 17 November 2005 the offender appeared before a magistrate in the Local Court at Wyong for a committal hearing. It was a paper committal hearing. Not surprisingly or unexpectedly as the Crown’s case was not challenged or tested, the offender was committed to appear in this Court on 9 December 2005 for arraignment.

14. In due course, on 15 May 2006 the offender appeared before me in the Court at Gosford to stand his trial. The Crown Prosecutor presented an indictment charging the offender with having maliciously wounded the complainant on 24 July 2005. This is an offence contrary to section 35 subsection 1 of the Crimes Act, for which the prescribed penalty is imprisonment for a maximum of seven years when dealt with on indictment or imprisonment for a maximum of two years if dealt with summarily. It is an offence which does not carry a standard non-parole period. The offender pleaded not guilty to the charge. A jury was empanelled. The jury heard evidence from seventeen witnesses, all called by the Crown Prosecutor, and it received twenty nine exhibits, some of which had more than one part, all presented by the Crown Prosecutor, over four days, from 15 to 18 May 2006, counsel’s addresses on one day, 18 May 2006, my summing-up on one day, 19 May 2006 and it returned its verdict of guilty on 22 May 2006 after deliberating over two days, 19 and 22 May 2006.

15. The jury’s verdict did not surprise me as the Crown’s case was strong to the point of being overwhelming and the offender’s case, as contained in the interview of him by police on 28 July 2005, and as suggested by his counsel in cross-examination of the Crown’s witnesses, was unlikely to the point of being fanciful.

16. I do not have any doubt that the offender, when armed with a knife, ran towards the complainant intending to attack him with the knife and that the complainant, in defending himself against the offender’s attack, tackled the offender, sending them both onto the concrete path leading from the stairs at the footpath to the home, and that then the offender stabbed the complainant a number of times with the knife, after which, and fortunately for the complainant, Mr Anderson, the complainant’s friend, intervened, which led to the offender running away, taking the knife with him.

17. The offender’s attack upon the complainant was a premeditated, unprovoked, armed and cowardly attack upon an unsuspecting, unarmed, defenceless and helpless man, which resulted in the complainant suffering numerous wounds, lacerations, grazes and abrasions. Fortunately, as a result of luck, the complainant’s actions in his own defence and the intervention of his friend, Mr Anderson, none of the complainant’s injuries was serious or life threatening and, so far as I am aware, the complainant has recovered from his injuries. Of course, the number of the complainant’s injuries and the nature and extent of them are indications of the ferocity of the attack and of the offender’s intention at the time.

18. The offence committed by the offender involved the use of violence and the use of a weapon. It was, as I have said, an armed attack upon an unarmed man. It resulted in the victim suffering numerous injuries. It was, in my assessment, at the top of the range of seriousness for offences of its kind. It falls within the class of worst case of its kind. It merits, and demands, an appropriately severe penalty.

19. The offender’s counsel submitted that the offence was not premeditated, being unplanned and spontaneous. I do not agree. I accept that, when the offender left his flat at the rear of the property, taking a knife with him, and why he did so is unexplained, and walked to the corner of the building at the front of the property, he did not intend to attack and to injure the complainant. However, I find that he stood at the corner of the building at the front of the property, that he watched Mr Anderson and the complainant as they walked along the footpath from one corner of the property towards the other corner of it, that, while watching the complainant and what the complainant was doing, he decided to attack the complainant with the knife and that, having made that decision, he ran from where he was standing towards the complainant carrying the knife in one hand and he attacked the complainant with the knife.

20. The offender’s counsel submitted that the offender was provoked by the complainant. I do not agree. Although I accept that the complainant used offensive language towards the offender, which language was in response to offensive language used by the offender towards the complainant, that the complainant was dry retching while leaning on the letterbox at the front of the property and that the complainant tackled the offender when the offender ran at him with the knife in one of his hands, none of the words or actions of the complainant could be considered to amount to provocation for the conduct of the offender, and, in any event, the complainant’s tackling of the offender was an act in his own defence.

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

22. In determining an appropriate sentence to impose upon the offender for the offence, of which the jury has found him to be guilty, I must recognise the purposes of sentencing outlined in section 3A of the Crimes (Sentencing Procedure) Act and I must take into account such of the aggravating factors referred to in section 21A subsection 2 of the Act as are present, and such of the mitigating factors referred to in subsection 3 of the section as are present, and any other relevant factor.

23. As to section 21A of the Crimes (Sentencing Procedure) Act, having regard to what I have said already about the offence and the offender, I consider that the only appropriate aggravating factor is that lettered (l), in subsection 2 and that the only appropriate mitigating factors are those lettered (a) and (b), that is, not part of an organised criminal activity, in subsection 3 of the section.

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

25. Another factor not mentioned in section 21A of the Act is the concurrent jurisdiction of the Local Court. In some cases the fact that the Local Court has concurrent jurisdiction with this Court will entitle an offender to a discount in penalty (see R v El Masri (2005) NSWCCA 167; also R v Gent (2005) NSWCCA 370), but in this case, in view of the objective seriousness of the offence and the aggravating factor that the offender was on conditional liberty at the time of committing the offence, I can understand the reason for the Director of Public Prosecutions prosecuting the offender in this Court, rather than in a Local Court and I cannot see that the offender is entitled to any discount in penalty because of the concurrent jurisdiction of the Local Court.

26. What, then, having regard to what I have said about the offence and the offender, is an appropriate sentence to impose upon the offender for that offence?

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

28. Apportionment of a sentence of imprisonment for seven years into a non-parole period and a parole period in accordance with the statutory ratio between a non-parole period and a parole period would produce a non-parole period of five years three months and a parole period of one year nine months.

29. The offender’s counsel submitted that the length of the non-parole period should be reduced and the length of the parole period should be increased because of accumulation of the sentence upon the sentence being served, and the need for the offender to be supervised by the Probation and Parole Service for a lengthy period to assist him to return to living in the community.

30. I accept that accumulation of this sentence upon the sentence being served is a special circumstance to vary the statutory ratio between the non-parole period and the parole period, however, I do not accept that the offender’s need for supervision is a special circumstance to vary that statutory ratio as the offender’s past has shown that he is not motivated towards living a crime free life. I propose to fix a non-parole period of four years six months and a parole period of two years six months.

31. The question then arises as to the day on which the sentence is to commence. This day could be the day of the offender’s arrest, or the day on which his trial commenced, or the day on which the jury found him to be guilty, or today, or the day following the day of expiry of the sentence being served, or any day between the day of his arrest and the day following the day of expiry of the sentence being served. The offender’s counsel submitted that the day for commencement of the sentence should not be later than twelve months from the day of the offender’s arrest because had the offender not committed the subject offence but had the offender been arrested for the breach of parole referred to in the statement of Ms Leafe, exhibit GG, the likelihood is that the Parole Board would have granted parole to him within twelve months of his arrest on 28 July 2005. I have a discretion as to the day on which the sentence is to commence, (see R v Callahan 2006 NSWCCA 58). I consider that, although the offender has not been held in prison in relation to the subject offence, it is fair and just to the offender that I commence the sentence that I will impose upon him on 28 January 2006.

32. Accordingly, Mark Anthony Morris, for the offence of malicious wounding, of which the jury found you to be guilty, you are convicted. I sentence you to imprisonment for seven years. I fix a non-parole period of four years six months to commence on 28 January 2006 and to expire on 27 July 2010, on which day you are eligible to be released on parole, and a parole period of two years six months to commence on 28 July 2010 and to expire on 27 January 2013. I order that you be subject to supervision by the New South Wales Probation and Parole Service whilst on parole during the parole period.

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