R v Morrison

[2003] NSWCCA 89

CITATION:	R v Morrison [2003] NSWCCA 89
HEARING DATE(S):	25 March 2003
JUDGMENT DATE:	25 March 2003
JUDGMENT OF:	Studdert J at 1; Smart AJ at 39
DECISION:	Leave to appeal granted; appeal dismissed.
LEGISLATION CITED:	Crimes Act, s 35 Crimes (Sentencing Procedure) Act, s 32
CASES CITED:	R v Bett [2001] NSWCCA 482 R v Coleman (unreported, NSWCCA, 20 February 1995) R v Galati [2002] NSWCCA 366 R v Kalache (unreported, NSWCCA, 30 June 1995) R v Page [2000] NSWCCA 484
PARTIES :	Regina v Troy Anthony Morrison
FILE NUMBER(S):	CCA 60027/03
COUNSEL:	G.I.O. Rowling (Crown) R. Burgess (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0087
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

60027/03

STUDDERT J
SMART AJ

Tuesday 25 March 2003

REGINA v TROY ANTHONY MORRISON

Judgment

1 STUDDERT J: The applicant, Troy Anthony Morrison, seeks leave to appeal against the sentence imposed by his Honour Judge Christie QC on 5 July 2002. On that date his Honour sentenced the applicant to a term of imprisonment of five years commencing on 5 March 2002 and expiring on 4 March 2007. His Honour, having found special circumstances, fixed a non-parole period of three years and three months expiring on 4 June 2005.

2 The offence is in a category for which s 35 of the Crimes Act imposed a maximum sentence of seven years imprisonment. The judge was also asked to take into account, pursuant to s 32 of the Crimes (Sentencing Procedure) Act an offence of malicious damage to property.

3 The objective facts were the subject of agreement. The applicant had been drinking with friends at an hotel early on the morning of 29 July 2001. The victim entered the hotel and approached the bar area. He was challenged there by the applicant who told him to leave the hotel. The victim did so but the applicant followed him out of the hotel to the front of the carpark where he hit the victim in the face with his right elbow. The victim fell to the ground unconscious and the applicant then commenced to kick the victim in the head. He did so four or five times. He then left the victim unconscious where he had fallen and returned to the hotel and resumed drinking.

4 Later, when the applicant left the hotel, he head butted a glass window of a shop, breaking the glass. It was this latter matter that the applicant asked the sentencing judge to take into account under a Form 1.

5 The applicant was arrested some eight hours after the commission of the crime and at the Taree police station made frank admissions in an ERISP. In that ERISP the applicant admitted he elbowed the victim in the vicinity of the nose, that the applicant fell over and that he then kicked him in the head probably four or five times. He added that one of the applicant’s mates saw what had happened and stopped the applicant from jumping on the victim’s head.

6 The applicant told the police he did what he did because he hated the victim and wanted to hurt him enough to leave the applicant’s girlfriend alone. The applicant did tell the police that the victim did have a knife but he did not get a chance to use it. The applicant told the police that he was getting “pretty drunk” but that he knew what he was doing. He told the police that he hit his victim “pretty much as hard as I can.” He told the police that he kicked the victim, “pretty much in the back of the head.”

7 The victim was seriously injured and admitted to the Manning Base Hospital intensive care unit with what were characterised, by the surgical registrar who attended him, as serious head injuries. He was transferred to the John Hunter Hospital on 3 August 2001. A CT scan showed generalised oedema with a small subdural haematoma in the right temporal lobe. He came under the care of Dr Booth, Director of the Rehabilitation Unit for the Hunter Area Health Service, and remained at the Rankin Park Rehabilitation Unit from 13 September 2001 until 11 December 2001.

8 Subsequently, Dr Schofield, the Director of the Neuropsychiatry Service for the Hunter Area Health Service, wrote a report on 4 July 2002 in which it was stated:

“He was admitted to the Rankin Park Rehabilitation Unit on 13 September 2001 and remained there until 11 December 2001. Following discharge from the Rankin Park Unit, he attended the Brain Injury Services as a day patient. In mid December, he developed psychotic symptoms and was admitted to the James Fletcher Hospital when he first had contact with the Neuropsychiatry Service. His progress since that time has been stormy. There have been periods of frank psychotic behaviour and at other times periods of depression. He continues to demonstrate marked cognitive impairments, and particularly severe memory problems. Currently, he remains an inpatient in the Neuropsychiatry Unit at Morisset Hospital but has been well enough to make a number of overnight stays with his partner.

It is clear that he has sustained a very severe head injury, and the persisting cognitive deficits he manifests now are unlikely to improve very much from this point. It is highly unlikely that he will be capable of undertaking any paid employment in the future.”

9 There was placed before his Honour a statement from Ms Playford dated 29 May 2002 and that afforded his Honour with a lay perception of the very disabled condition in which the victim has been left as a result of the commission of this offence by the applicant.

10 The applicant was born on 6 January 1979, so that he was 22 years of age at the time of this attack. He had a criminal record and, significantly for present purposes, he was convicted of an assault in September 1999 and placed on a recognizance for twelve months. He was later placed on a further recognizance for assault, this time for a period of two years and it was a condition of the recognizance that he stay away from licensed premises.

11 Hence, this offence was committed in breach of the later recognizance itself and in breach of a condition of the recognizance that required him to stay away from licensed premises.

12 The judge assessed the offence as being spontaneous and not premeditated. Assessing its objective gravity, his Honour said:

“This is not an offence the most serious of its kind because it lacks that element of planning but nevertheless it is not far removed from it.”

13 It seems to me that it was open to his Honour to make the assessment that he did make. This was a very grave offence of its type and was accompanied by the callousness of the applicant leaving the victim in his injured state outside the hotel.

14 There were subjective features that could be described as powerful subjective features to be weighed in this case. The applicant had the most unfortunate of upbringings. He was one of four siblings poorly cared for by his parents. Indeed, the paternal grandmother and grandfather gave disturbing evidence as to how the applicant and his siblings were treated as small children. Plainly they were neglected in terms of their physical needs.

15 The parents eventually separated and following intervention by DOCS, the applicant was placed at Delmar. He was made a State ward in 1986 and he passed through the hands of a number of foster carers. His father remarried and the applicant’s stepmother treated the applicant poorly when the applicant lived with his father and stepmother for a time.

16 The applicant was sexually abused by some drinking acquaintance of his father with whom he was unfortunate enough to come into contact whilst he was living with his father and stepmother.

17 From the age of fifteen or so the applicant lived with a girlfriend for a period of some five years and during that period he suffered yet a further episode of sexual abuse.

18 The background to the offence committed in the hotel was that the applicant perceived the victim to have been harassing the applicant’s girlfriend and her mother.

19 The subjective material, which was placed before his Honour, is to be found in a report from Ms Kennedy and Ms Barrier dated 19 May 2002, the psychiatric report from Dr Robinson dated 10 October 2001 and a report from Mr Spencer, psychologist, prepared sometime earlier, on 21 August 1997. There was also a statement made by the applicant placed before his Honour dated 24 November 1994, which dealt with the subject of the most recent of the episodes of sexual abuse.

20 Further, there was a psychologist’s report from Mr Davis dated 2 September 1992, which addressed the issue of the applicant’s earlier sexual abuse.

21 Ms Burgess, in written submissions and in her oral submissions, submitted that the applicant has had a tragic background, epitomized by neglect and emotional, physical and sexual abuse. I accept that assessment as being entirely accurate.

22 The applicant’s brother was accidentally killed when struck by a truck and it was that deceased brother’s girlfriend who subsequently became the applicant’s girlfriend. This young lady and her mother were the persons who the applicant perceived the victim to have been hassling.

23 In his report of 21 August 1997 Mr Spencer, in assessing the applicant’s psychological status at that time wrote:

“Troy is a young man whose life up to date has been characterised by various levels of physical, emotional and sexual abuse. It is beyond question that the experiences he has been through have left him with a range of residual psychological difficulties, including mood disturbance, anxiety, feelings of estrangement/isolation, a reduced level of self esteem, problems with trust, relationship difficulties and difficulties with aggression and anger control. These problems have, and continue to effect Troy’s general level of functioning and his capacity to deal effectively with other situations in his life. His major coping mechanism tends to be withdrawal and avoidance. This is particularly so in relation to the sexual abuse Troy suffered, and to the present time he remains very anxious about discussing this experience, and the feelings it has left him with.”

24 The psychological assessment undertaken by Ms Kennedy and Ms Barrier concluded:

“Objective testing of Troy’s personality found a borderline personality style coupled with negativistic and masochistic tendencies. Those with borderline personality difficulties have often experienced physical and sexual abuse, neglect, hostile conflict and parental separation in childhood. Indeed, Troy has experienced each of these, and it would be surprising if these events had not had an adverse effect on his psychological and personality development. The negativistic and masochistic elevations are reflected by Troy’s interpersonal difficulties and sense that he does not deserve happiness in his life. Objective testing of Troy’s intelligence found him to be at the high end of the below average range of functioning…”

25 The authors went on to say he, referring to the applicant:

“He acknowledged the seriousness of the offences currently before the Court and stated his concern that he not become involved in further, more serious violence. However, Troy does not appear to possess the skills to deal with conflict in a non-violent manner, and his attitudes towards the current offences are an indication of his lack of insight into his behaviour.

It is positive that Troy has indicated his willingness to recommence his antidepressant medication and undertake psychological and alcohol and other drug counselling. It is noted that Troy is anxious about being incarcerated for a lengthy period of time. He commented that if he believes his sentence is too long he will ‘make myself an animal’ meaning that he fears he will become more prone to physical violence…”

26 The authors went on to make a recommendation that the applicant participate in the violence prevention programme at Long Bay Correctional Centre. It was further recommended that the applicant continue with psychological counselling to address his own physical distress and history of trauma and to attend alcohol and other drug counselling to address his substance abuse. The authors also said:

“Supervision once Troy is released to the community is also advised.”

27 The sentencing judge assessed the evidence concerning the applicant’s subjective features in these words:

“It paints a picture of a person who has been subjected to enormous emotional and sociological pressures throughout his young life.”

28 It seems to me to be clear from his Honour’s remarks on sentence generally that his Honour was keenly aware of the subjective features of this case. He determined that there were special circumstances by reason of the applicant’s past life, his prospects of rehabilitation and the fact the applicant had not been in the custodial system before.

29 Ms Burgess has not pointed to any error of fact in the detailed remarks on sentence. It is submitted, however, that both the head sentence and the non-parole period are manifestly excessive and further, that insufficient allowance was made for special circumstances.

30 His Honour had an extremely difficult sentencing task. The subjective circumstances were, as I observed, powerful; but the objective features of this crime were extremely serious. His Honour took into account the plea of guilty and the frankness of the applicant’s admissions. But for these features his Honour indicated he would have imposed a head sentence of six years and six months, but reduced the head sentence to five years because of the plea and the admission.

31 Ms Burgess has submitted that the starting point here was manifestly excessive. The sentence imposed was, on statistics to which the Court has been referred, said to be in the top three per cent.

32 The Court has been referred to a number of cases in which significantly lesser sentences were imposed. Three of those matters, R v Coleman (unreported) NSWCCA 20 February 1995; R v Galati [2002] NSWCCA 366; and R v Bett [2001] NSWCCA 482, were Crown appeals. Two of the matters, R v Page [2000] NSWCCA 484 and R v Kalache (unreported) NSWCCA 30 June 1995, were cases in which, Ms Burgess submitted, the objective circumstances were more serious than these here present.

33 The Crown was correct to remind this Court that it is not to the point whether this Court, had it been a court at first instance, would have imposed a lesser sentence or that some other judge would have imposed a lesser sentence than that imposed here.

34 The issue is whether in imposing the sentence that he did impose, his Honour was in error in imposing a sentence that was outside the sound exercise of his discretion.

35 I am not persuaded, having regard to the objective gravity of this case, that this sentence was manifestly excessive. So far as the structure of the sentence is concerned, his Honour was alert to the need to consider the question of special circumstances and he did so.

36 Ms Burgess has submitted that the sentence that was structured only provided for an additional six months, that is, in the reduction of the non-parole period that would otherwise have been imposed and an adjustment of six months, it was submitted, was manifestly erroneous.

37 It may well be that another judge would have made an adjustment in excess of six months but I am certainly not convinced that his Honour was in error in the structure of the sentence that was here imposed.

38 Ultimately I have come to the conclusion that error has not been demonstrated in this sentence. I would propose that:

1. leave to appeal be granted;

2. the appeal be dismissed.

39 SMART AJ: I agree.

40 STUDDERT J: The orders of the Court will be those I have proposed.

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Last Modified: 04/03/2003