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Court of Criminal Appeal 25 March 2003

R v Morrison

[2003] NSWCCA 89

Assault & violence

Citation: R v Morrison [2003] NSWCCA 89
Court: New South Wales Court of Criminal Appeal
Date: 25 March 2003
Judge(s): Studdert J; Smart AJ

Background

The applicant was a 22-year-old man who, in the early hours of 29 July 2001, attacked a victim outside a hotel in what the sentencing judge found to be a spontaneous but extremely grave assault. He elbowed the victim in the face, causing him to fall unconscious, and then kicked him in the head four or five times before returning to the hotel to resume drinking. The applicant later told police he had acted deliberately, knew what he was doing, and hit the victim "as hard as I can."

The victim sustained catastrophic injuries, including a subdural haematoma and generalised brain oedema. He required lengthy inpatient rehabilitation and subsequently developed psychotic symptoms and severe cognitive impairments. Medical evidence indicated he was unlikely ever to work again.

The applicant pleaded guilty and made frank admissions in a police interview. He had a prior criminal record including two assault convictions, and this offence was committed in breach of a recognizance that specifically required him to stay away from licensed premises. In the District Court, Christie DCJ sentenced him to five years imprisonment with a non-parole period of three years and three months. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the head sentence of five years (reduced from a starting point of six and a half years) was manifestly excessive given the objective gravity of the offence and the applicant's subjective circumstances.
  • Whether the structure of the sentence, specifically the extent to which the non-parole period was reduced to reflect a finding of special circumstances, was manifestly erroneous.

Decision

The Court of Criminal Appeal accepted that the applicant's personal history was marked by profound disadvantage: neglect, repeated sexual abuse, the accidental death of his brother, and time in State care. These subjective features were characterised as powerful mitigating factors that Christie DCJ had properly taken into account.

Despite those features, Studdert J held that the objective gravity of the offence was extremely serious. The callousness of leaving an unconscious victim outside the hotel, the sustained nature of the attack, the severity of the injuries inflicted, and the breach of a recognizance all supported a heavy sentence. The Court found it was open to the sentencing judge to characterise the offence as not far removed from the most serious of its kind.

On the manifest excess ground, the Court applied the established principle that the question is not whether this Court or another judge would have imposed a lesser sentence, but whether the sentencing judge fell outside the sound exercise of his discretion. Studdert J was not persuaded that the sentence crossed that threshold.

As to the sentence structure, the Court acknowledged that another judge might have made a larger adjustment to the non-parole period to reflect special circumstances, but found no error in the six-month reduction Christie DCJ applied. Smart AJ agreed with Studdert J's reasoning and conclusions.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing approach where the judge expressly identified the objective gravity of a violent assault, weighed powerful subjective features, and reduced the sentence to reflect a guilty plea and frank admissions.
  • The applicable appellate standard requires a finding that the sentence fell outside the sound exercise of sentencing discretion, not merely that another judge might have imposed a lesser term.
  • Statistical evidence placing a sentence in the upper percentile range for an offence category does not, by itself, establish manifest excess.
  • Where special circumstances are found, a relatively modest adjustment to the non-parole period is not automatically erroneous; the extent of any adjustment remains within the sentencing judge's discretion.
  • In assessing objective gravity, the Court of Criminal Appeal confirmed that a spontaneous assault can still be assessed as approaching the most serious of its kind where the sustained nature of the attack and the severity of injury are extreme.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 35 (reckless wounding or infliction of grievous bodily harm; maximum sentence seven years)
- Crimes (Sentencing Procedure) Act (NSW), s 32 (matters taken into account on a Form 1)

Cases
- 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