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Court of Criminal Appeal 1 October 2014

Morrison v R

[2014] NSWCCA 199

Assault & violence
CRIMINAL LAW SENTENCE APPEAL APPEAL DISMISSED.

Citation: Morrison v R [2014] NSWCCA 199
Court: Court of Criminal Appeal, NSW
Date: 1 October 2014
Judges: Hoeben CJ at CL, Fullerton J, Adamson J

Background

The appellant and her partner were convicted after trial of two counts of detaining a person for advantage in circumstances of special aggravation, contrary to s 83(3) of the Crimes Act 1900. The two victims, both young men who were friends with the appellant's older daughters, came to live in the appellant's home at different times. During those periods, the appellant and her partner subjected each man to sustained physical and psychological abuse, including regular beatings, starvation, threats, and the compelled signing of false written confessions.

The first victim, JA, lived with the appellant from April 2007 until August 2009. He entered the home weighing approximately 70 kilograms and left weighing 45 kilograms, with injuries requiring surgery and permanent disfigurement to one ear. The second victim, NB, lived there from February to August 2010. He was admitted to hospital weighing 43 kilograms, with injuries including multiple rib fractures, fractures to his lumbar spine, multiple facial bone fractures, internal lung injuries, and severe malnutrition.

The appellant was sentenced in the Sydney District Court on 17 May 2013 to an effective total sentence of 13 years imprisonment with a non-parole period of 9 years. The two individual sentences of 11 years (non-parole period 7 years) were partially accumulated by 2 years. She sought leave to appeal, arguing the total sentence was manifestly excessive and that the partial accumulation infringed the totality principle.

  • Whether the total effective sentence of 13 years imprisonment was manifestly excessive given the objective seriousness of the offences and the appellant's subjective circumstances.
  • Whether the partial accumulation of 2 years between the two sentences was manifestly excessive and breached the totality principle, which requires that the overall sentence reflect the totality of an offender's criminality without being crushing.

Decision

On the first ground, the Court found no basis to conclude the sentences were manifestly excessive. Hoeben CJ at CL characterised both offences as carrying a high level of objective seriousness and moral culpability. The appellant had pleaded not guilty, showed no remorse, had a lengthy criminal record, and her dysfunctional background did not materially reduce her culpability. The sentencing judge had properly considered all relevant factors.

On the second ground, the Court held that the decision whether to make sentences concurrent or partially cumulative is a matter within the sentencing judge's discretion. The two offences were not closely connected: they involved different victims, occurred in different time periods, and the sentence on Count 1 could not encompass the full criminality of both offences. The Court noted that the appellant herself conceded some accumulation was appropriate, which implicitly acknowledged the sentence for Count 1 alone could not capture the criminality of Count 2.

The Court observed that in practical terms, the appellant received only an additional 2 years on the non-parole period for the very serious criminality captured by the second count. No error in the exercise of the sentencing discretion was established. Both Fullerton J and Adamson J agreed with the reasons of Hoeben CJ at CL.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the decision to accumulate sentences, in whole or in part, lies within the sentencing judge's discretion; there is no general rule requiring concurrent or consecutive sentences.
  • Where two offences involve different victims and entirely separate periods of offending, a sentencing court is not required to impose concurrent sentences simply because the conduct was of a similar character or formed part of a general course of criminal behaviour.
  • The relevant test for accumulation is whether the sentence for one offence can encompass the criminality of all offences; if it cannot, some degree of accumulation may be appropriate.
  • In dismissing the appeal, the Court emphasised that an absence of remorse, a prior criminal record, and limited prospects of rehabilitation are all properly considered in assessing whether a sentence is manifestly excessive.
  • Subjective circumstances, including a troubled and dysfunctional background, will not necessarily operate to reduce an offender's moral culpability where no material basis for such a reduction is established on the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61, 83(3)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Postiglione v R [1997] HCA 26; 198 CLR 296
- R v Hammoud [2000] NSWCCA 540
- R v Jarrold [2010] NSWCCA 69
- R v Speechley [2012] NSWCCA 130