R v Morris - [2008] NSWCCA 115

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Morris [2008] NSWCCA 115

FILE NUMBER(S):
2008/322

HEARING DATE(S):
23/05/2008

JUDGMENT DATE:
4 June 2008

PARTIES:
Regina - Applicant
Stephen Jodey Morris - Respondent

JUDGMENT OF:
James J Hoeben J Hall J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0365

LOWER COURT JUDICIAL OFFICER:
Goldring DCJ

LOWER COURT DATE OF DECISION:
14/12/2007

COUNSEL:
Mr P Ingram - Applicant Crown
Ms A Francis - Respondent

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Applicant Crown
S O'Connor, Legal Aid Commission - Respondent

CATCHWORDS:
Crown appeal - whether sentences manifestly inadequate - effect of delay on sentence - need for sentencing judge to take into account pre-existing custody when considering totality - discount for plea of guilty.

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Dinsdale v The Queen [2000] HCA 54; (2002) CLR 321
Lowndes v The Queen (1999) 195 CLR 665
R v Fahda [1999] NSWCCA 267
R v Henry (1999) 46 NSWLR 346
R v Ponfield & Ors (1999) 48 NSWLR 327
R v Todd (1982) 2 NSWLR 517
Wong v R (2002) 137 A Crim R 120

TEXTS CITED:

DECISION:
Appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/322
JAMES J
HOEBEN J
HALL J
Wednesday, 4 June 2008

R v MORRIS, Stephen Jodey

Judgment

JAMES J: I agree with Hoeben J.
HOEBEN J:
Offences and sentence
On 20 August 2007 the respondent pleaded guilty to two counts on indictment:
Count 1: That on 25 December 2001 at Woolloomooloo the respondent broke and entered a dwelling and therein committed a serious indictable offence, namely the armed robbery of Mrs EV, in circumstances of aggravation namely knowing that there were persons within that dwelling, contrary to s 112(2) of the Crimes Act 1900. The maximum penalty is imprisonment for 20 years.
At the request of the respondent, the sentencing judge took into account two offences on Form 1 documents. The first offence was the armed robbery of Ms DV on 25 December 2001 at Woolloomooloo during the commission of the offence in count 1.
The second offence was break enter and steal from a dwelling in Eastwood on 21 October 2005 during which a ring valued at $1000 was stolen.
Count 2: That on 23 September 2005 at Killara the respondent broke and entered a dwelling and while there stole certain personal items the property of KM contrary to s 112(1) of the Crimes Act 1900. The maximum penalty is imprisonment for 14 years.
At the request of the respondent, the sentencing judge took into account two offences on a Form 1.
The first offence was break enter and steal from a dwelling in Newtown on 17 October 2005 in which property valued at $1,970 was stolen.
The second offence was break enter and steal from a dwelling in Haberfield on 18 October 2005 in which property valued at $300 was stolen.
Goldring DCJ sentenced the respondent in respect of these matters…

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.

Continue reading R v Morris

Details

AGLC: R v Morris [2008] NSWCCA 115
Case: [2008] NSWCCA 115
Decision Date: 4 June 2008

CaseChat Overview and Summary

In the case of R v Morris, the Crown appealed the sentences imposed on Morris on the grounds that they were manifestly inadequate. The factual background of the case involved Morris, armed with a kitchen knife, committing a series of robberies against Mrs EV and her two daughters. The robberies were characterised by threats and fear, with Morris using the knife to intimidate the victims into handing over valuables. The court had to determine whether the sentences imposed by the trial judge were appropriate given the nature and severity of the crimes committed.

The legal issues before the court included whether the sentences were manifestly inadequate, the effect of the delay on the sentencing, the requirement for the sentencing judge to consider pre-existing custody, and the appropriate discount for Morris’s plea of guilty. The court also needed to assess if the 20% discount given for the first count was excessive and whether the delay in prosecution was adequately considered in the sentencing. The Crown argued that the sentences did not reflect the seriousness of the offences and did not represent an affront to the public conscience.

The court considered that while there was some force in the Crown’s argument regarding the excessive discount for the first count, it found that a discount of up to 15% could be justified under the circumstances. Regarding the delay in prosecution, the court found that the trial judge was justified in reducing the sentence for count 1, given Morris’s genuine lack of recollection of the offence. The court also noted that the trial judge’s starting point for the sentence, even after the discount, was a significant 8 years. The court concluded that the sentences did not represent a clear error of principle and were not manifestly inadequate.

The final orders of the court were to affirm the sentences imposed by the trial judge, finding that they adequately reflected the nature and seriousness of the crimes committed, taking into account all relevant factors, including the delay in prosecution and Morris’s plea of guilty.

Orders

Orders of the court

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Background

Background to the litigation

The Crown has appealed from these sentences on the basis that they are manifestly inadequate.Factual background In relation to count 1, Mrs EV and her two daughters aged respectively 19 and 5 attended a street party near their home. The 19 year old daughter went home at 12.30am and went to sleep on a sofa in the lounge-room downstairs. Mrs MV and the younger daughter arrived home about 30 minutes later. She and the younger daughter went to bed upstairs. Shortly afterwards Mrs EV heard noises from the downstairs kitchen. She called out several times but received no response. When she went downstairs into the kitchen she saw a cigarette glowing in the dark and a person now known to be the respondent, holding a kitchen knife with a blade about 30 cms long. This knife belonged to Mrs EV and was in the kitchen when he arrived. The respondent walked towards Mrs EV and pointed the knife at her stomach. He said “Don’t move, I will get you if you scream. Give me your money and some valuables. Whatever you can, give me, because I need it for my heroin addiction.”Mrs EV replied that she had no money because she was a pensioner. The respondent kept pressing her for money and was still pointing the knife at her. They went into the lounge-room where the older daughter was sleeping. The respondent woke the daughter up and held the knife close to her. He demanded money from her. The respondent took the daughter’s Nokia mobile phone, which was valued at nearly $1,000. The daughter said “No that’s all my life in there” to which the respondent replied “No I’ll take this you can have it if you give me money”. The respondent then pointed the knife at the daughter and said “Don’t move or I’ll hurt you. I know you’re going to call the police but don’t try. If you do nothing I won’t hurt you. Come on, we’ll go upstairs now”. The older daughter gave the respondent three rings and a necklace which she was wearing. Mrs EV and the daughter then went upstairs with the respondent following them, still pointing the knife. The respondent searched drawers in Mrs EV’s bedroom, taking her birthstone ring valued at about $2,500. He took $80 from Mrs EV’s handbag and a credit card and a key card from the daughter’s wallet. He pointed the knife towards the daughter and demanded that she give him her pin number. The respondent then entered the younger daughter’s bedroom and took a necklace belonging to her. Mrs EV was afraid that the respondent might hurt the younger daughter. Fortunately, the younger daughter did not wake up. As he was leaving the respondent said to Mrs EV: “I will come back if you try to call the police and tell them what happened and that I have been here”. He then ran off, taking the kitchen knife with him. Mrs EV subsequently discovered that CD’s worth approximately $500 had also been stolen. The police were called, statements were provided by Mrs EV and her older daughter and descriptions of the respondent were given. Fingerprints were found by the police on various parts of the premises.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JAMES J

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Ratio Decidendi

Legal Principle Established

Established by: JAMES J

The overall sentence and the discrete sentences, it was submitted, did not represent an affront to the public conscience but rather ensured that the respondent was in prison for a minimum period of 7 years and 3 months for offences which although large in number and serious in nature did not disclose any premeditated violent offending but were essentially offences of drug-related dishonesty. It was submitted that no clear error of principle was identified by the Crown.Consideration It seems to me that there is some force in the Crown’s complaint that a 20% discount in relation to count 1 was excessive. I accept that the circumstances were unusual. There was considerable utility in sparing witnesses from having to give evidence and re-open a painful experience which had occurred almost 6 years before. There was his Honour’s finding that the respondent genuinely did not remember this offence or the surrounding circumstances . There was also the difficulty associated with the way in which the charges were framed, so as to at least give rise to an argument as to duplicity. The plea of guilty, albeit late, significantly resolved those issues. Even so, absent other considerations, I am of the opinion that while a discount of up to 15% could in the circumstances be justified, 20% was excessive. There is less force in the Crown’s challenge to the emphasis which his Honour gave to delay when formulating the sentences. There is no doubt that in some respects the offence on which count 1 was based was stale in that it had not been prosecuted for almost 5 years. It is also clear that the respondent was disadvantaged by the fact that the offence in count 1 was being dealt with 6 years after its occurrence. This is not one of those situations where the delay was due to the actions of the offender in keeping quiet in the hope that his criminality would not be discovered. His Honour found that the respondent genuinely had no recollection of the offence. In these circumstances, it seems to me, that his Honour was justified in reducing the sentence in respect of count 1 which was by far the most serious offence to have regard to that circumstance. It should also be kept in mind that allowing for the 20% discount, his Honour’s start point in respect of count 1 was a head sentence of 8 years, which is of itself a not insignificant sentence. While dealing with the question of delay I should say something about the authorities referred to by his Honour on this question and his use of them. His Honour specifically referred to the decisions of this Court in R v Fahda [1999] NSWCCA 267 and R v Wong [2002] NSWCCA 527; 137 A Crim R 120. Both those decisions were by benches made up of two judges. In general, two judge decisions are not referred to for statements of principle unless there is no other authority. These cases are good examples of why that is so. In Fahda what Simpson J said about delay was largely dicta because she went on to say that there were other circumstances in the case. Wong is in fact not even a two judge decision, since Smart AJ did not endorse the remarks of Adams J on the role of delay in dealing with sentencing matters and pointedly refrained from expressing any opinion.