Citation: R v Scott Robert Morrison [2014] NSWDC 155
Court: District Court of New South Wales
Date: 12 September 2014
Judge(s): Mahony SC DCJ
Background
Following a late-night altercation at a brothel in St Marys in February 2011, the offender was tried on multiple counts arising from a sequence of violent events. A jury acquitted him on the first three counts but convicted him on count four: recklessly wounding a woman on the veranda of the premises using a shard of ceramic. The offender had separately pleaded guilty to count five: assaulting another woman outside the premises, occasioning her actual bodily harm.
The violence unfolded after a dispute in the lounge area of the brothel led to a physical confrontation between the offender and another man. The offender was placed in a headlock and struck across the back with a ceramic vase. He used a piece of that broken vase to defend himself, an act the jury accepted was done in self-defence. However, he then chased the departing group out onto the street and up to a back veranda, where the two convicted offences took place.
The sentencing hearing proceeded before Mahony SC DCJ, who considered evidence including the offender's criminal history, a pre-sentence report, custodial records, a psychologist's report, character references, and a letter from the offender himself.
Legal Issues
- What was the appropriate sentence for reckless wounding under s 35(4) of the Crimes Act 1900, given the circumstances of the offending and the offender's personal history?
- What was the appropriate sentence for assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900?
- How should the principles of totality, proportionality, and the avoidance of double punishment apply across the two concurrent sentences?
- Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period shorter than the statutory ratio.
Decision
Mahony SC DCJ found that the objective seriousness of both offences fell below the mid-range for their respective categories. In relation to the reckless wounding, the court noted that the wound (a 3 to 4 centimetre laceration to the back of the victim's skull, penetrating to the bone) was inflicted with an opportunistically acquired ceramic shard rather than a weapon brought to the scene. The victim required sutures but no surgery, was not admitted to hospital, and suffered no loss of consciousness.
In relation to the assault occasioning actual bodily harm, the offender kicked and punched a second woman on the street outside, apparently believing in a confused way that he was retaliating against the man who had attacked him inside. The court accepted that the offender's significant intoxication (having consumed up to 20 alcoholic drinks that day) was a relevant contextual factor, though it did not excuse the conduct.
The court found special circumstances under s 44(2), justifying a departure from the standard non-parole period ratio. The offender had no prior convictions for violence and had demonstrated good character through numerous references. The court was satisfied that a longer parole period would assist rehabilitation, particularly given the recommendations concerning drug and alcohol counselling and anger management.
Full-time imprisonment was unavoidable for the reckless wounding offence. The court sentenced the offender to a total term of three years, with a non-parole period of 18 months commencing from the date of the jury verdict. The assault sentence of 12 months was ordered to run concurrently.
Orders Made
- The offender was convicted of reckless wounding under s 35(4) of the Crimes Act 1900 and assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900.
- For the reckless wounding offence: a non-parole period of 18 months imprisonment, commencing 30 May 2014 and expiring 29 November 2015, followed by a further term of 18 months expiring 29 May 2017.
- For the assault occasioning actual bodily harm offence: a fixed term of 12 months imprisonment, served concurrently, commencing 30 May 2014 and expiring 29 May 2015.
- Parole eligibility date set at 29 November 2015.
- Upon release, the offender was directed to accept supervision by the Probation and Parole Service and comply with recommendations regarding drug and alcohol rehabilitation, anger management, violence programs, and any reasonable directions from that service.
Key Takeaways
- The District Court confirmed that an opportunistic use of a weapon (a broken ceramic shard picked up at the scene) is treated as a relevant aggravating factor in a reckless wounding sentence, even where the offender brought no weapon to the premises.
- A finding of self-defence on an earlier count does not insulate an offender from separate sentencing liability for subsequent offences committed after the immediate threat has passed and the offender has given chase.
- Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be established where a longer supervisory parole period is warranted by rehabilitation needs, allowing the non-parole period to fall below the standard statutory ratio.
- The principles in Pearce v R (1998) 194 CLR 610 governing proportionality, totality, and the avoidance of double punishment were applied in structuring concurrent sentences across two distinct offences arising from a single course of events.
- Significant voluntary intoxication was treated as a contextual factor explaining the circumstances, but did not reduce the objective seriousness of the offending or provide a mitigating basis for sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 35(4), 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44(2)
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases
- Pearce v R (1998) 194 CLR 610
- Veen v R (No. 2) (1988) 164 CLR 465
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Blanco v R (1999) 106 A Crim R 303
- Elmasri v R [2005] NSWCCA 167
- Silvano v R (2008) 184 A Crim R 593
- R v Todd (1982) 2 NSWLR 517