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Supreme Court 18 May 2017

R v Morris

[2017] NSWSC 637

Homicide
CRIMINAL LAW SENTENCE MURDER NO PREMEDITATION INTENT TO CAUSE GRIEVOUS BODILY HARM WHERE OFFENDER SHOWED GENUINE REMORSE

Citation: R v Morris [2017] NSWSC 637
Court: Supreme Court of New South Wales
Date: 18 May 2017
Judge(s): Fagan J

Background

The offender, a 57-year-old man with a longstanding psychotic illness, was convicted by jury of the murder of his next-door neighbour in a Wollongong apartment block on or about 25 November 2014. The two men had lived adjacent to one another for four years but had minimal social contact. Both were unemployed and both used cannabis; the deceased also suffered from schizophrenia.

On the evening of the offence, the offender invited the deceased to his unit to share cannabis. Once inside, the offender spontaneously raised a grievance about a drug supply transaction from three weeks earlier, in which the deceased had skimmed approximately seven grams from an ounce of cannabis procured on the offender's behalf. A struggle followed, during which the offender struck the deceased once in the throat with a hammer. The deceased died as a result of that blow.

The offender had pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept the manslaughter plea, and the jury returned a verdict of guilty of murder. The matter then proceeded to sentence.

  • Whether a life sentence was warranted, or whether a finite term should be imposed under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • What weight to assign to the standard non-parole period of 20 years for murder
  • How the offender's mental illness bore on his moral culpability and on the purposes of sentencing, including general deterrence and denunciation
  • Whether genuine remorse and a low risk of reoffending justified a reduction in the sentence
  • Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the balance of term

Decision

Fagan J declined to impose a life sentence, finding that the level of culpability was not so extreme as to require it. The judge characterised the offending as sitting at the lower end of the spectrum for murder. Key objective features supporting this assessment included the absence of premeditation, the fact that the fatal blow was a single strike delivered in the course of a spontaneous struggle, and that the requisite intent was to cause grievous bodily harm rather than to kill.

The offender's mental illness, which had been present since at least 1993 and probably for a decade before that, was found to be an operative cause of the offending conduct. This reduced his moral culpability and diminished the weight to be given to the sentencing purposes of denunciation and general deterrence. The offender's psychosis had been exacerbated by sustained illicit drug use, including synthetic cannabis and, on the day before the offence, methyl amphetamine, and had gone inadequately managed for many years.

Fagan J accepted that the offender showed genuine remorse, assessed his risk of reoffending as low, and noted that a longer than usual additional term was warranted to support his transition back into the community after release. These subjective factors, combined with the moderate objective circumstances, led the court to place the case conspicuously at the lower end of the range of punishment for murder. The court also reviewed comparable sentencing decisions to ensure consistency, finding some comparability with cases including R v Elphick, R v Valiukas, and R v Neave.

The judge acknowledged directly, and with care, that a shorter sentence does not reflect any devaluation of the victim's life. All human lives are treated as equally precious in the criminal law, and it is the particular circumstances of the crime that determine the measure of punishment.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 12 years, commencing 1 December 2014 and expiring 30 November 2026
  • The balance of term was fixed at 5 years, commencing 1 December 2026 and expiring 30 November 2031
  • The offender will be eligible for release on parole at the expiry of the non-parole period
  • The offender was notified, pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), that the provisions of that Act apply to him and to the offending the subject of these proceedings

Key Takeaways

  • Where a mental illness is found to be an operative cause of the offending, the sentencing court may reduce the weight given to general deterrence and denunciation, as those purposes are less effectively served when the offender's capacity for rational decision-making was compromised.
  • A single, unpremeditated blow in the course of a spontaneous struggle, delivered with intent to cause grievous bodily harm rather than to kill, can place a murder at the lower end of the objective seriousness spectrum, even though it results in death.
  • The Supreme Court confirmed that a shorter murder sentence reflects the particular circumstances of the offence, not any diminution in the value placed on the victim's life.
  • Genuine remorse, a low assessed risk of reoffending, and significant rehabilitative needs can constitute special circumstances justifying an adjustment to the standard non-parole period ratio.
  • Consistency in sentencing requires courts to survey comparable decisions, but material differences between cases will always call for corresponding differences in sentence, as affirmed in Wong v The Queen and Green v The Queen.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 28, 61(1), Division 1A of Part 4
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Elphick [2002] NSWCCA 273
- R v Hines (No 3) [2014] NSWSC 1273
- R v Neave [2012] NSWSC 229
- R v Valiukas [2009] NSWSC 808
- R v Joiner [2001] NSWSC 1163
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 89
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64