Morrow v The Queen [2013] NTCCA 07

 

 

PARTIES:                                         MORROW, Christopher

 

                                                         v

 

                                                            THE QUEEN

 

TITLE OF COURT:                          COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                              CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                         CA 5 OF 2013 (21228881)

 

DELIVERED:                                   19 July 2013

 

HEARING DATES:                          16 February 2013

 

JUDGMENT OF:                              RILEY CJ, SOUTHWOOD and BLOKLAND JJ

 

APPEALED FROM:                          BARR J

 

CATCHWORDS:

 

SENTENCING — Appeal against sentence — Sentencing factors — General and specific deterrence — Community protection — Weight to be given in light of offender’s intellectual disability — No error established.

 

SENTENCING — Appeal against sentence — Discount for plea of guilty — Discretion to reduce sentence to take into account plea — No tariff for discount — Sentencing Act 1995 (NT) s 5(2)(j).

 

SENTENCING — Appeal against sentence — Non-parole period — Longer non-parole period than statutory minimum — No error established — Sentencing Act 1995 (NT) s 54.

 

SENTENCING — Appeal against sentence — Particular offences — Causing serious harm — Manifest excess — No tariff — Not ‘clearly and obviously excessive’.

 

Kelly v The Queen (2000) 10 NTLR 39

Liddy v The Queen [2005] NTCCA 4

Mununggurr v The Queen [2006] NTCCA 16

Power v The Queen (1973) 131 CLR 623

R v Engert (1995) 84 A Crim R 67

R v Shrestha (1991) 173 CLR 48

Veen v The Queen (No 2) (1988) 164 CLR 465

Yardley v Betts (1979) 22 SASR 108

 

Criminal Code Act 1983 (NT) s 181.

Sentencing Act 1995 (NT) s 5(2)(j), s 54.

 

REPRESENTATION:

 

Counsel:

    Appellant:                                    J C A Tippett QC

    Respondent:                                 D Morters

 

Solicitors:

    Appellant:                                    Maleys and Burrows

    Respondent:                                 Office of the Director of Public Prosecutions

 

Judgment category classification:   B

Judgment ID Number:                      Ril1308

Number of pages:                            16


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Morrow v The Queen [2013] NTCCA 07

No. CA 5 of 2013

(21228881)

 

 

                                                     BETWEEN:

 

                                                     CHRISTOPHER MORROW

                                                         Applicant

 

                                                     AND:

 

                                                     THE QUEEN

                                                         Respondent

 

CORAM:    RILEY CJ, SOUTHWOOD and BLOKLAND JJ

 

REASONS FOR JUDGMENT

 

(Delivered 19 July 2013)

 

Riley CJ:

[1]       On 19 December 2012, the applicant was convicted of the offence of causing serious harm and sentenced to imprisonment for a period of four years and nine months with a non-parole period of two years and nine months. He now seeks leave to appeal against the sentence[1] on various grounds, principally on the ground that the sentence was manifestly excessive in all the circumstances. Leave to appeal was refused by a single judge of the Court and, on request of the applicant, the matter has now been referred for consideration by the Court of Criminal Appeal.

The offending

[2]       On 4 August 2012, the applicant was in Darwin city with a friend. He had consumed approximately 15 alcoholic drinks and was intoxicated. During the course of the evening someone bumped into him in a nightclub and caused him to spill his drink. The person did not apologise and that made the applicant angry. At about 2:30 am on the following morning the applicant and the victim were seen to be arguing in Mitchell Street. In a subsequent interview, the applicant advised that he understood that his victim was the person who had bumped into him in the nightclub. Whether that was so has not been determined.

[3]       The applicant pushed the victim with both hands to the top part of his chest, after which the victim pushed back. The applicant then hit the young man twice with his fist, first to the chin with one fist and then to the temple with the other. The second punch knocked the victim unconscious and propelled him straight back, causing him to land on his back. A ‘loud thump’ was heard when he hit the ground, where he remained unconscious and unmoving on his back. The applicant went to the unconscious victim, picked him up by his shirt and punched him forcefully to the face approximately 10 times. He said he continued the assault because he "didn't want him to get up and continue the violence". The victim was struck all over the face including to his cheeks, nose and eye. He remained unconscious throughout the beating. The attack came to an end when a friend of the applicant intervened. As his Honour observed, the applicant demonstrated no ‘compassion or empathy or self-restraint’.

[4]       The offence committed by the applicant was one of extreme violence involving two blows to the head, one of which incapacitated the victim, and then an ongoing violent assault comprising approximately 10 punches to the head and face of the unconscious victim. This was, as the sentencing judge observed, an ‘extremely violent, brutal and highly dangerous’ assault.

The victim

[5]       The victim remained unconscious and was taken by ambulance to the Emergency Department of the Royal Darwin Hospital. He was in a comatose state and transferred to the intensive care unit. He was then taken to the operating theatre where he underwent a left parieto-occipital craniotomy, evacuation of an extradural haematoma and insertion of an intracranial pressure monitor. Without medical intervention the injuries would almost certainly have been fatal. Following the surgical procedures he was managed in the intensive care unit with sedation, muscle relaxation, ventilation, intracranial pressure monitoring, hypotonic saline and active cooling. A subsequent MRI brain scan revealed evidence of a contra-coup injury, a few small collections within the cavity and diffuse axonal injury, that is, widespread injury to the brain.

[6]       The victim remained in hospital until 24 August 2012. His recovery was described by a doctor as ‘remarkable’.

[7]       The impact upon the victim was extremely serious. He was in a coma for seven days and was informed, upon waking, that he had four plates in his head. He was afraid he would die. He was also concerned that he would lose vision in his left eye. He was off work for three months. He can no longer compete in sporting pursuits because of the increased risk of serious head injury. As the learned sentencing judge observed:

Of course he is grateful to be alive, but his emotional and psychological well-being has suffered greatly. He is not the same young man that he was. He has anxieties and fears which affect his enjoyment of life.

[8]       In addition his Honour made observations regarding the parents of the victim, saying:

[T]hey have had to endure the emotional distress of seeing their badly beaten son hospitalised, and comatose, and being subjected to extremely invasive surgical procedures. They had to endure the uncertainty of not knowing whether [their son] would survive and if he did what his long-term prognosis would be.

The applicant

[9]       At the time of sentencing the applicant was aged 28 years. He was born in Darwin and lived most of his life here. His father, who had a serious alcohol problem, committed suicide when the applicant was young. The applicant had a dysfunctional early home life and his mother suffered drug and alcohol problems. He suffered two serious dog attacks when he was very young and hospital records reveal three admissions for multiple surgical procedures.

[10]    The applicant had a difficult time at school suffering from an extremely short attention span, poor comprehension, limited retention, negative attitudes, unusual mood swings and disruptive behaviour. An assessment made by a neuro-psychologist when the applicant was aged 14 years determined that he had intellectual abilities ‘within the borderline’. At that time it was predicted that he was ‘likely to commit criminal acts of increasing severity’. The sentencing judge observed that, although the applicant was said to have a ‘mild intellectual disability’, he had average numeracy and literacy skills.

[11]    The applicant left school after year 10 and had various forms of employment but, at the time of the offending, was receiving a disability pension.

[12]    The applicant had a criminal history including convictions for damaging property, trespass, unlawful entry of a building and stealing. There were significant gaps in his criminal history including a gap of four years between the ages of 15 years and 19 years and another gap of five years from the age of 19 years through to almost 25 years. In 2009 and 2010 he was convicted of possession of cannabis and fined, and in 2012 he was convicted of contravening a domestic violence order and received a seven day sentence of imprisonment. The only other offences possibly of a violent kind were from 1999 when he was convicted of assaulting a member of the police force and resisting arrest. In relation to those matters he received community service orders. There is nothing in the criminal history to suggest a predisposition to violence of the kind reflected in this matter.

[13]    At the time of sentencing the applicant denied that he had an anger management problem and specifically refused to consent to an assessment designed to address his violent conduct. However, he did accept that he needed assistance in relation to his heavy consumption of alcohol and indicated a willingness to attend counselling or treatment in this regard.

[14]    Although the applicant pleaded guilty to the offending, he did not display any real remorse. He continued to blame the victim because the victim had not apologised for spilling the applicant’s drink. There was no demonstrated acceptance of responsibility for his conduct.

[15]    The report of a specialist psychiatrist concluded that the applicant suffered from a mixed personality disorder with antisocial and borderline traits; a mild intellectual disability; and, at the time of the offence, an adjustment disorder with depressed mood. The psychiatrist observed that the ‘personality style’ experienced by the applicant was one ‘often associated with a history of child abuse and neglect, and poor educational and social opportunities and attainments’. He did not suffer any current psychiatric disorder. The following conclusion was expressed:

I do not believe that Mr Morrow requires any psychiatric treatment. Further, his personality disorder is not likely to respond to particular treatment given his limited intellectual functioning. Rather engagement in appropriate drug and alcohol rehabilitation and anger management programs would be useful. However, even if he abstains from alcohol his underlying personality disorder leaves him at risk of future aggression.

The sentence

[16]    The applicant was convicted. In determining an appropriate sentence, the sentencing judge took as a starting point a sentence of imprisonment of six years. His Honour then allowed a discount of approximately 20% for the plea of guilty and sentenced the applicant to imprisonment for four years and nine months. The sentence was backdated to reflect time in custody. A non-parole period of two years and nine months was imposed.

The proposed grounds of appeal

[17]    The proposed grounds of appeal are:

(a)     the sentencing judge failed to give appropriate weight to the rule of general deterrence in a case where the [applicant] was suffering a mild intellectual disability or other mental illness;

(b)     the sentencing judge’s emphasis on the [applicant’s] ‘risk of future aggression’ was inconsistent with his finding in relation to the [applicant’s] mild intellectual disability;

(c)     the sentencing judge placed too much weight on specific deterrence;

(d)     the discount of 20% of the total sentence was insufficient; and

(e)     in all the circumstances the sentence was manifestly excessive.

 General deterrence, ‘risk of future aggression’ and specific deterrence

[18]    It is convenient to deal with these three grounds of appeal together.

[19]    During the course of submissions the sentencing judge was referred to, inter alia, Mununggurr v The Queen where it was said:[2]

In order for a psychiatric illness or mental disability to be regarded as ameliorating the need for general deterrence, the onus was on the appellant to demonstrate how the illness or disorder related to the offending, that is, how its effect reduced the seriousness of the offences and the appellant’s moral culpability … It is not the law that a person suffering from a mental disorder is on that account alone necessarily entitled to a discount when being sentenced.

[20]    In relation to the need for general deterrence, the sentencing judge said:

The Court could use your sentence to make an example of you so that everyone in the community will know what they can expect if they do what you did or similar. That is called [the] principle of general deterrence. However, there are factors in your case which indicate that your [sentence] is not a good vehicle for general deterrence. Those factors include your mild intellectual disability and the fact that you probably have a personality disorder, a mixed disorder with antisocial and borderline traits. ... Your sentencing should in my view take account of the fact that you have a personality disorder. Dr Raeside explains that your offending occurred in the context of you drinking heavily [and] becoming aggressive out of proportion to the context, consistent with your underlying personality disorder and limited coping strategies.

[21]    It was submitted that his Honour found that the applicant’s intellectual disability was a contributing factor to his offending and therefore relevant to the application of general deterrence. It was argued that as a consequence, there should have been a reduction in the sentence given the lesser role of general deterrence in determining an appropriate sentence. Although the sentencing judge made it clear in his sentencing remarks that the applicant was not a good vehicle for general deterrence the applicant contended that the sentence passed does not reflect application of that principle.

[22]    It does not follow that an automatic consequence of an offender suffering from some form of intellectual disability which contributes to the offending is that a lesser sentence will be imposed. Automatic consequences do not follow from the presence or absence of particular factual circumstances. In Mununggurr the Court of Criminal Appeal referred with approval to the following observations of Gleeson CJ in Engert:[3]

A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

[23]    In the present case it is apparent that the sentencing judge regarded specific deterrence and community protection as having an important role to play in determining an appropriate sentence. His Honour discussed the competing considerations with counsel. There was a strong evidentiary basis for his Honour’s conclusions, notwithstanding that the applicant did not have a history of violence. In the course of sentencing remarks his Honour made the following points:

(a)     the conduct of the applicant was ‘very disturbing’ and he ‘came very close to killing the victim’;

(b)     the offence was one of ‘mindless extreme violence’;

(c)     the applicant had been warned by medical advisers not to drink alcohol and yet he had consumed 15 alcoholic drinks on that day;

(d)     the offending occurred in the context of him drinking heavily, becoming aggressive out of proportion to the context and this was consistent with his ‘underlying personality disorder and limited coping strategies’;

(e)     ‘in lay language, [the applicant is] a person who can get very angry when [he] drinks heavily and [he] cannot deal with even mildly stressful situations without resorting to violence.’ He is someone who should not drink;

(f)      the applicant has an anger management problem but did not accept that to be the case and would not consent to an assessment to address this issue;

(g)     the medical advice was that, even if the applicant abstained from drinking alcohol, his underlying personality disorder placed him at risk of future aggression; and

(h)     whilst he was remorseful to some extent, it is not clear that he fully appreciated the implications of what he did on the night.

[24]    In light of those matters his Honour observed that it was necessary to impose a sentence that would deter the applicant from further violent offending and would encourage him to adhere to medical advice that he should not drink alcohol. His Honour observed:

Specific or personal deterrence is very important in your sentencing. That means I must impose a sentence which will deter you from committing an offence like this or other violent offences ever again. As I said earlier, you do not have a significant record of prior violent offending. But because your offending probably came about because you did not comply with your treating doctor’s directions not to drink.

As mentioned in the Crown facts, you had 15 alcoholic drinks that day. Your counsel admitted on your behalf that your doctors advised you not [to] drink alcohol. So in sentencing you I must impose a sentence to deter you from further violent offending and also a sentence which will strongly encourage you to adhere to medical advice that you should not drink alcohol.

In my opinion those observations are both unexceptional and to be expected.

[25]    The sentencing remarks reveal that the judge did appropriately consider the issues of general deterrence, specific deterrence and protection of the community. The diagnosis of borderline personality disorder of the applicant, while of some significance, was not in the range of severity as found in R v Chambers[4] prompting the Court in that case to reduce a sentence on appeal. The exercise undertaken by his Honour was to weigh those matters along with other relevant matters. I see no error on the part of his Honour in the approach taken.

The discount

[26]    The sentencing judge adopted as his starting point a sentence of imprisonment of six years and then allowed a discount of approximately 20% for the plea of guilty.

[27]    The applicant submitted that the plea came at the earliest possible opportunity and reflected an expression of remorse. The matters which did not support the claim to remorse could be explained by the recognised intellectual disability of the applicant. It was contended that, in all the circumstances, a discount in the order of 25% should have been allowed.

[28]    By operation of s 5(2)(j) of the Sentencing Act 1995 (NT), when considering a sentence to be imposed, the court must have regard to the fact that an offender has pleaded guilty to an offence and also the stage of the proceedings at which the offender did so or indicated an intention to do so. The circumstances in which a plea may be entered can vary greatly and therefore the impact upon the sentence may also vary greatly. Consideration of the timing of the plea or notification, the strength of the Crown case, whether witnesses (including victims) have had to give evidence, whether the plea reflects a true acceptance of responsibility for the offending conduct, whether the plea reflects remorse, the extent of any assistance to law enforcement authorities, the extent to which the plea provides a saving of cost and expense to the state and numerous other factors will be taken into account. In those circumstances there cannot be a tariff and the weight to be given to the plea will vary according to the circumstances.[5] In addition, the credit due for the plea may be reflected in a way other than reducing the head sentence, for example by partially suspending the sentence, imposing home detention or by imposing a fine.[6]

[29]    In the circumstances of this matter it cannot be said that the discount of 20% provided by the sentencing judge was outside of the range available to his Honour in all the circumstances. I do not see any reason to interfere.

The non-parole period

[30]    The applicant submitted that the sentencing judge imposed a non-parole period greater than the minimum period required by the Sentencing Act. It was said that this resulted from his Honour giving undue weight to specific deterrence and that it was ‘at odds with the court’s acceptance of the contributory role of the [applicant’s] intellectual disability in the offending’.

[31]    The non-parole period imposed was two years and nine months, whereas the minimum non-parole period was half of the head sentence.[7] The difference is a period of four and a half months.

[32]    The non-parole period is the ‘minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention’.[8] It is necessary that the non-parole period be proportionate to the seriousness of the offence.[9]

[33]    The High Court discussed the ‘basic theory of the parole system’ in The Queen v Shrestha, where Deane, Dawson and Toohey JJ said:[10]

All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time. ... [T]he legislative intent to be gathered from the terms of the parole legislation applicable in [Power v The Queen] … was to provide for possible mitigation of the punishment of the prisoner only when the stage is reached where ‘the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence’. This approach has been consistently accepted in subsequent cases in this Court.

[34]    It is apparent that in determining the non-parole period in this case the sentencing judge concluded that the statutory minimum period was insufficient and that a longer period should be imposed. I see no error on the part of the sentencing judge.

Manifest excess

[35]    This Court was referred to a range of sentences imposed in relation to offences against s 181 of the Criminal Code. It was observed that a wide range of sentencing dispositions was revealed. This is not unexpected and reflects the frequently expressed observation that there is no tariff in respect of penalties to be imposed for the crime of assault.[11] Each case will be dealt with on its own merits having regard to the particular circumstances of the offending and of the offender.

[36]    The complaint of the applicant is that the sentence was manifestly excessive in all the circumstances. The principles applicable to such an appeal are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive as to manifest such error. In relying upon this ground it is incumbent upon the applicant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously and not just arguably excessive.[12]

[37]    The offending in this matter was of a serious kind. Whilst the applicant did not use a weapon, he inflicted a ferocious beating upon a young man who, after the initial blows, was unable to defend himself. The applicant delivered 10 blows to the unconscious victim. He only desisted when his friend intervened. The observation of the sentencing judge that this was an ‘extremely violent, brutal and highly dangerous’ assault was an accurate description. The impact upon the victim was both significant and ongoing. In my opinion the offending on this occasion was at the upper end of seriousness for offences of its kind.

[38]    The sentence can be described as stern but, in my view, it is not manifestly excessive.

[39]    I would allow each of the applications for leave to appeal but I would dismiss the appeal.

Southwood J:

[40]    I agree with the Chief Justice’s reasons for decision. The appeal should be dismissed.

Blokland J:

[41]    I agree with the reasons and orders of the Chief Justice.



[1]    Leave is required pursuant to s 410(c) of the Criminal Code Act 1983 (NT).

[2]    [2006] NTCCA 16 at [18]–[19].

[3]    (1995) 84 A Crim R 67 at 68.

[4]    (2005) 152 A Crim R 164.

[5]    Kelly v The Queen (2000) 10 NTLR 39 at 49 [27].

[6]    Kelly v The Queen (2000) 10 NTLR 39 at 49–50 [29].

[7]    Sentencing Act s 54.

[8]    Power v The Queen (1973) 131 CLR 623 at 628 per Barwick CJ, Menzies, Stephen and Mason JJ.

[9]    Veen v The Queen [No 2] (1988) 164 CLR 465.

[10]   The Queen v Shrestha (1991) 173 CLR 48 at 68–69, quoting Power v The Queen (1973) 131 CLR 623 at 629 per Barwick CJ, Menzies, Stephen and Mason JJ.

[11]   Yardley v Betts (1979) 22 SASR 108.

[12]   Liddy v The Queen [2005] NTCCA 4 at [12].