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Court of Criminal Appeal 15 September 2023

Morris v R

[2023] NSWCCA 228

Assault & violence
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE INDIGENOUS OFFENDER DEPRIVED BACKGROUND BUGMY V THE QUEEN PRINCIPLES

Citation: Morris v R [2023] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 15 September 2023
Judges: Ward P, Harrison J, Dhanji J

Background

The appellant pleaded guilty to two offences: aggravated entry into a dwelling house with intent to commit a serious indictable offence (intimidation), contrary to s 111(2) of the Crimes Act 1900 (NSW), and assault occasioning actual bodily harm in company, contrary to s 59(2). The offending arose when an associate, seeking revenge against the victim for stealing from her recently deceased father, enlisted the appellant to attend the victim's home. The two broke in, verbally intimidated the victim, and the appellant punched the victim twice in the head.

The District Court sentenced the appellant to an aggregate term of 2 years and 4 months imprisonment with a non-parole period of 18 months. The appellant is an Indigenous person with a background of poverty, family violence, and normalised substance abuse, and these matters were raised at the sentencing hearing through a psychologist's report.

The sentencing judge accepted the report as part of the subjective factors but declined to treat the appellant's background as engaging the principles from Bugmy v The Queen (2013) 249 CLR 571 so as to reduce his moral culpability. The judge characterised the report's content as a recitation of self-reported diagnoses rather than independent clinical assessments. The appellant challenged this reasoning on appeal.

  • Whether the sentencing judge erred in finding there was no evidence of a background of deprivation sufficient to engage the Bugmy principles.
  • Whether the sentencing judge erred in finding that the psychologist's report disclosed no mental health diagnoses, and therefore no link between the appellant's mental health and his offending.
  • Whether, if error was established, a different sentence was warranted and in what form.

Decision

On the first ground, the Court of Criminal Appeal held that the sentencing judge erred. The psychologist's report contained detailed observations about the appellant's upbringing, including the normalisation of violence, his father's abusive behaviour, early onset substance abuse, and a long-term history of PTSD, depression, and anxiety. The report also drew a direct connection between those background circumstances and the appellant's offending. Harrison J (with Ward P and Dhanji J agreeing) found that the judge's characterisation of the report as merely recording self-reported diagnoses was not an accurate reading of it, and that the material was sufficient to engage Bugmy principles.

The Crown conceded the potential error but argued that a different sentence was not warranted, pointing to the violent and unprovoked nature of the offending and the absence of a sufficient causal link between the appellant's mental health and the index offences. The Court acknowledged the Crown's position but found that the error did warrant resentencing.

On resentencing, the Court adopted the findings of the original sentencing judge and determined that an aggregate sentence of 2 years' full-time imprisonment was appropriate, reduced from 2 years and 4 months. Crucially, the Court then considered post-sentence affidavit material showing significant rehabilitative progress during the period already served, including completion of qualifications, volunteering, and sustained abstinence from drugs and alcohol. The Court accepted that community safety remained paramount but concluded that the rehabilitative groundwork the appellant had laid warranted the balance of the sentence being served by way of an Intensive Corrections Order (ICO).

Accounting for 11 months and 2 weeks already served in custody, the remaining sentence was reduced accordingly under the principles in Mandranis v R [2021] NSWCCA 97. The Court imposed an abstention condition (requiring abstinence from alcohol and drugs) in addition to standard ICO conditions, having found no exceptional circumstances justifying departure from that additional requirement under s 73A(1A) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • Aggregate sentence of 1 year and 2 weeks imprisonment imposed, commencing 15 September 2023.
  • Sentence to be served by way of an Intensive Corrections Order, commencing 15 September 2023 and expiring 29 September 2024.
  • Standard ICO conditions applied (no offending; supervision by a community corrections officer).
  • Additional condition imposed requiring abstention from alcohol and drugs (s 73A(2) of the Crimes (Sentencing Procedure) Act 1999).
  • Appellant directed to report to a Community Corrections office within seven days.

Key Takeaways

  • A sentencing judge who has before them a psychologist's report documenting a deprived upbringing, normalised family violence, and resulting mental health consequences cannot dismiss that material as merely "self-reported" history without proper engagement with the content, particularly where the Crown does not challenge the reliability of the information.
  • Under Bugmy v The Queen, the effects of profound deprivation on an offender's moral culpability do not diminish with the passage of time and must be genuinely considered at sentencing, not merely acknowledged and set aside.
  • Post-sentence evidence of rehabilitation can be significant on resentencing: the Court of Criminal Appeal treated the appellant's sustained rehabilitative efforts during custody as a material basis for substituting an ICO for the balance of a full-time custodial term.
  • An ICO remains available even for offences involving violence, provided the sentencing court is satisfied that community safety is adequately protected, including through the imposition of appropriate additional conditions such as abstention requirements.
  • Where time has already been served under a quashed sentence, the Mandranis principle requires the re-sentenced term to be reduced to reflect that period, so the total time of deprivation of liberty does not exceed the fresh sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 71, 73A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mandranis v R [2021] NSWCCA 97
- Chan v R [2023] NSWCCA 206
- Dungay v R [2020] NSWCCA 209
- RO v R [2019] NSWCCA 183