Morris, Morris and Snelson v The Queen - [2008] NSWCCA 182

New South Wales
Court of Criminal Appeal

CITATION: Morris, Morris and Snelson v R [2008] NSWCCA 182

HEARING DATE(S): Wednesday 18 June 2008

JUDGMENT DATE:
21 August 2008

JUDGMENT OF: Spigelman CJ at 1; Hidden J at 2; Price J at 39

DECISION: Bernard Morris: sentences confirmed but fixed term of 12 months on aggravated enter dwelling with intent to commence on 22 October 2008. Aggregate sentence of 4 years with non-parole period of 2 years 9 months.
Bruce Morris: leave to appeal granted, appeal dismissed.
James Snelson: leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW: - joint applications for leave to appeal against sentence - aggravated break, enter and steal (2) - in one case, additional charge of aggravated enter with intent to steal - whether pleas of guilty taken into account - whether adequate distinction in sentence because of offenders' different roles, subjective cases - in one case, whether assistance to authorities taken into account - whether overall sentence after accumulation reflected finding of special circumstances - whether lesser sentences warranted

LEGISLATION CITED: Crimes Act (s112(2); s111(2))
Crimes (Sentencing Procedure) Act (s21A(3)(k); s22)
Criminal Appeal Act s6(3)

CASES CITED: R v Fernando (1992) 76 A Crim R 58
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Lawrence [2005] NSWCCA 91
SZ v R (2006) 168 A Crim R 249
R v Button & Griffen [2002] 54 NSWLR 455
Douar v R [2005] 159 A Crim R 154

PARTIES: Bernard Morris (applicant)
Bruce Morris (applicant)
James Snelson (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 2007/3030; 2007/2980; 2007/3097

COUNSEL: D Patch (applicant Bernard Morris)
C Davenport SC (applicant Bruce Morris)
M Paish (applicant Snelson)
P Ingram (Crown)

SOLICITORS: North & Badgery (applicant Bernard Morris)
Legal Aid Commission (applicant Bruce Morris)
Andrews Solicitors (applicant Snelson)
Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0076; 06/61/0116; 06/61/0133

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 03/05/2007

2007/3030
2007/2980
2007/3097

SPIGELMAN CJ
HIDDEN J
PRICE J
Thursday 21 August 2008

Bernard Morris v R; Bruce Alexander Morris v R; James Colin Snelson v R

Judgment

1 SPIGELMAN CJ: I agree with Hidden J

2 HIDDEN J: Each of the three applicants, Bernard Morris, Bruce Morris and James Snelson, pleaded guilty in the District Court to two charges of aggravated break, enter and steal, an offence under s112(2) of the Crimes Act which carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years. The three of them were jointly involved in those offences. Each of them asked the sentencing judge to take into account two charges of take and drive a conveyance, in which they were also jointly involved, on a form 1. In addition, Bernard Morris pleaded guilty to a charge of aggravated enter dwelling with intent to steal, an offence under s111(2) of the Crimes Act which carries a maximum sentence of 14 years imprisonment.

3 They were sentenced as follows:

§…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCCA 182
Decision Date: 21 August 2008

CaseChat Overview and Summary

In Morris, Morris and Snelson v The Queen, the appellants were convicted of aggravated break, enter and steal and, in one case, aggravated enter with intent to steal. The appellants appealed against their sentences. The High Court was required to decide whether the trial judge had adequately considered the pleas of guilty and the different roles played by the appellants when imposing the sentences. The court was also required to determine whether the trial judge had taken into account the appellants' assistance to the authorities and whether the overall sentence reflected the finding of special circumstances.

The court found that the trial judge had adequately considered the pleas of guilty and the different roles played by the appellants. The court held that the trial judge had considered the appellants' different roles and had imposed sentences that reflected the different levels of culpability. The court also found that the trial judge had taken into account the appellants' assistance to the authorities and that the overall sentence reflected the finding of special circumstances. The court held that the appellants' sentences were not manifestly excessive and that the trial judge had exercised his discretion properly.

The appeal was dismissed. The court held that the sentences imposed by the trial judge were appropriate and that the appellants' submissions did not establish that the sentences were manifestly excessive. The court held that the trial judge had adequately considered the relevant factors and had imposed sentences that were proportionate to the appellants' offending. The court also held that the appellants' assistance to the authorities and the finding of special circumstances had been taken into account by the trial judge.

Orders