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Court of Criminal Appeal 7 August 2026

Morris v R

[2026] NSWCCA 119

Domestic & family violencePublic order & justice offences

Citation: Morris v R [2026] NSWCCA 119
Court: Court of Criminal Appeal
Date: 7 August 2026
Judge(s): N Adams CJ at CL, Sirtes J, Roberts J

Background

The applicant pleaded guilty to 19 domestic violence-related offences committed against his former partner, her family, and a friend. The offending consisted of persistent intimidatory behaviour, including death threats, sent while the applicant was on conditional liberty or in custody. None of the offences involved physical violence.

At sentencing in June 2024, Kumar DCJ imposed a total effective sentence of 16 years' imprisonment with an 11-year non-parole period. The sentences covered state offences (including intimidation and ADVO breaches), a Commonwealth offence of using a carriage service to make a threat, and related public justice offences committed while the applicant was in custody attempting to contact the victim.

The applicant sought leave to appeal on two grounds: that the sentence was manifestly excessive, and that a psychological report obtained after sentencing had not been placed before the sentencing judge, constituting a miscarriage of justice.

  • Whether the failure to place a post-sentence psychiatric report (the Walterfang report) before the sentencing judge constituted a miscarriage of justice warranting re-sentencing.
  • Whether the aggregate sentences imposed were manifestly excessive, having regard to the nature of the offending, the totality principle, and the applicant's reduced moral culpability arising from a disadvantaged background and mental health issues.

Decision

Ground 2 (Fresh Evidence): Unanimously dismissed.

The Court unanimously held that no miscarriage of justice arose from the failure to provide the sentencing judge with the Walterfang report. The report offered a more detailed account of the sexual abuse suffered by the applicant, but the sentencing judge had already accepted that the abuse occurred. The applicant could not identify any finding that would or could have been made differently in light of the new material. The Court applied Barnes v R [2022] NSWCCA 140 and confirmed that new evidence must demonstrate a material difference in outcome to ground a miscarriage of justice.

Ground 1 (Manifest Excess): Upheld by majority.

N Adams CJ at CL and Sirtes J held that the aggregate sentence of 15 years for the state offences was manifestly excessive. While the absence of physical violence did not diminish the seriousness of the charges (physical violence not being an element), many of the indicative sentences were very stern given the comparatively low maximum penalties for those offences.

The majority found that the totality principle had not been adequately applied. Significant notional concurrence was required between the ADVO breach offences and the substantive offending to which they related, to guard against double counting. When account was taken of sentences the applicant was already serving, the total effective time in custody reached 17 years, and the sentence had not been adjusted downward sufficiently to avoid a crushing outcome.

The majority also found that, because the aggregate sentence had already been reduced to account for the applicant's reduced moral culpability under the principles in Bugmy v The Queen and De La Rosa, the resulting figure remained unreasonably high, reinforcing the conclusion of manifest excess. Sirtes J added that it can be artificial to separately tabulate the effects of a disadvantaged background and a resulting mental health diagnosis on moral culpability where there is a close nexus between the two.

Roberts J (dissenting on Ground 1):

Roberts J would have dismissed the appeal on manifest excess. Her Honour held that the public justice offences represented discrete and significant criminality of a different character to the intimidation and ADVO breach offences. In her Honour's view, it was open to the sentencing judge to notionally accumulate the indicative sentences for those offences to a significant degree, and the aggregate sentence properly reflected the total overall criminality. Roberts J also observed that the same factors reducing the applicant's moral culpability gave rise to a corresponding need for community protection, and that the particular need for general and specific deterrence in domestic violence cases remained significant.

Orders Made

[Orders not located in provided text]

Key Takeaways

  • A majority of the Court of Criminal Appeal confirmed that the totality principle required significant notional concurrence between ADVO breach offences and the substantive offending to which they directly related, to prevent double counting in an aggregate sentence.
  • Where an applicant's reduced moral culpability under Bugmy and De La Rosa has already been reflected in a reduced sentence, that reduction is part of the analytical framework for assessing whether the resulting aggregate remains manifestly excessive.
  • Sirtes J observed that separately tabulating the mitigating effect of a deprived background and a related mental health diagnosis may be artificial where there is a close nexus between the two, suggesting a more holistic approach to that aspect of instinctive synthesis.
  • Fresh or new evidence does not establish a miscarriage of justice unless the applicant can identify an additional or different finding that would or could have been made had the evidence been before the sentencing judge. A report providing greater detail of facts already accepted by the sentencing judge will not ordinarily meet that threshold.
  • The absence of physical violence in domestic violence offending does not, of itself, reduce the seriousness of those offences where physical violence is not an element, though it remained a relevant consideration in assessing the overall weight of the sentencing outcome.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1) , 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) , s s 21A, 53A(2)(b), 55(1), 59(1)
- Crimes Act 1900 (NSW), ss 61, 323(a), 324
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Code Act 1995 (Cth), s 474.15
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases
- Aslett v R [2006] NSWCCA 360
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483
- BJS v R [2013] NSWCCA 123
- Browning v R [2015] NSWCCA 147
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1 ; (2007) 168 A Crim R 41
- Cherry v R [2017] NSWCCA 150
- Conte v R [2018] NSWCCA 209
- Craft v R [2021] NSWCCA 131
- Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Evans v R [2017] NSWCCA 281
- Harris v R [2021] NSWCCA 322
- He v Sun [2021] NSWCA 95
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hughes v R [2018] NSWCCA 2
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kennedy v The King [2022] NSWCCA 215
- Lee v R [2020] NSWCCA 244
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MJR v R [2025] NSWCCA 51
- MT v R [2026] NSWCCA 25
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- PD v R [2012] NSWCCA 242
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Burton [2008] NSWCCA 128
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
- R v Thompson [2025] NSWCCA 133
- Suksa-Ngacharoen v Regina [2018] NSWCCA 142
- TH v R [2025] NSWCCA 121
- Turnbull v R [2019] NSWCCA 97
- Zreika v R [2023] NSWCCA 317