Citation: R v Morris [2013] NSWDC 31
Court: District Court of New South Wales
Date: 24 January 2013
Judge(s): Berman SC DCJ
Background
The offender, an Aboriginal man then in his mid-fifties, faced sentencing for serious sexual and property offences committed in 1988 and 1990, when he was in his early thirties. On each occasion, he broke into a residential dwelling and raped a young woman who was alone at home. Both matters were only resolved decades later through DNA matching of semen samples recovered at the time of each offence.
The first incident, on 15 September 1988, involved the offender breaking into a home in Ultimo, punching the sleeping occupant in the face, and raping her before stealing her television and handbag. The second, on 17 February 1990, involved a more premeditated attack on an eighteen-year-old woman: the offender attended the premises twice, forced his way in on the second visit while threatening the complainant with a metallic object, and raped her. She sustained a vaginal tear in the assault.
The offender had an extensive criminal history of break, enter and steal offences, largely attributable to long-term substance abuse, but had no further sexual offending after these two incidents. He had ceased offending altogether by around 2004 and was in employment at the time of his arrest in 2011. He had been in custody since his arrest on 27 July 2011.
Legal Issues
- What sentence appropriately reflects the objective gravity of two separate offences of sexual intercourse without consent, each accompanied by a break, enter and steal offence?
- How should the principles from Fernando v The Queen (1992) apply to an Aboriginal offender with a background of social disadvantage and substance abuse?
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the head sentence.
- How should the offender's significant rehabilitation, age, and the very long delay between offending and sentencing affect the sentence imposed?
Decision
Berman SC DCJ characterised the offending as objectively very serious. Both attacks occurred in the complainants' own homes, locations where they were entitled to feel safe. The form of intercourse involved, penile/vaginal, was identified as particularly grave given the associated risks of pregnancy and sexually transmitted disease, including HIV/AIDS, which at the time of the 1988 offence was considered almost invariably fatal. The first complainant waited three months for a negative HIV result; the court noted the profound psychological toll of that uncertainty.
The 1990 offence was treated as more serious than the 1988 offence. The offender had returned to the premises with a clear plan to rape the occupant, demonstrating premeditation rather than opportunism. He had also used what appeared to be a weapon and caused physical injury to the complainant.
On the Fernando principles, the court accepted that the offender's Aboriginal background, disrupted upbringing, and long history of substance abuse were relevant to the background of his property offending. However, it declined to draw any connection between substance abuse and the sexual offending, noting the isolated nature of those two incidents within an otherwise consistent pattern of property crime. The court acknowledged the offender's genuine rehabilitation but emphasised that retribution and general deterrence remained important sentencing considerations despite it.
A finding of special circumstances was made, based on the accumulation of sentences and the possibility that the offender might otherwise have been sentenced at a time when the current statutory ratio between non-parole period and head sentence did not apply. The resulting departure from the statutory ratio was modest.
Orders Made
- Break, enter and steal (15 September 1988), taking into account the Form 1 matter: fixed term of two and a half years, commencing 27 July 2011.
- Break, enter and steal whilst armed (17 February 1990), taking into account the Form 1 matter: fixed term of three years, commencing 27 January 2012.
- Sexual intercourse without consent (15 September 1988): non-parole period of three years commencing 27 January 2013; head sentence of five years.
- Sexual intercourse without consent (17 February 1990): non-parole period of three years commencing 27 January 2014; head sentence of five and a half years.
- Total effective sentence: non-parole period of five and a half years, with a parole eligibility period of two and a half years, producing an aggregate sentence of eight years. Non-parole period to expire 26 January 2017.
Key Takeaways
- The District Court confirmed that the objective gravity of sexual offending must be reflected in the sentence even where the offender has achieved substantial rehabilitation many years after the events.
- Under the Fernando principles, an offender's Aboriginal background and associated disadvantage are relevant to understanding the context of offending, but courts will not assume a causal link between substance abuse and sexual violence without proper evidential foundation.
- Premeditation in the commission of sexual assault aggravates the offence significantly: the court treated the 1990 rape as more serious in part because the offender had returned to the premises with a formed intention to rape, rather than acting spontaneously.
- A finding of special circumstances may be supported by the accumulation of multiple sentences across separate incidents, even where the resulting variation from the statutory non-parole ratio is modest.
- Decades-long delays between the commission of offences and sentencing, resolved through later DNA matching, do not diminish the objective seriousness of the original conduct, though they may be relevant to other aspects of the sentencing exercise.
Legislation and Cases Referenced
Legislation
- Sentencing Act (NSW)
Cases
- Fernando v The Queen (1992) 76 A Crim R 58