R v Morris

[2004] NSWCCA 283

CITATION:	R v Morris [2004] NSWCCA 283
HEARING DATE(S):	16/08/2004
JUDGMENT DATE:	16 August 2004
JUDGMENT OF:	Handley JA at 31, 33; James J at 32; Howie J at 1
DECISION:	Leave to appeal is granted and the sentences imposed in the District Court are quashed. In lieu for the offence of break, enter and steal, the applicant is sentenced to imprisonment for a term of three years with a non-parole period of two years. The sentence is to commence on 9 March 2003 and the non-parole period will expire on 8 March 2005. The applicant is to be released to parole on that date subject to the sentence that is next imposed. For the aggravated break, enter and steal offence, I set a non-parole period of 3 years to commence on 9 March 2004 and to expire on 8 March 2007, the date upon which the applicant is eligible to be released to parole. The balance of the term is 1 year to date from 9 March 2007.
CATCHWORDS:	Criminal Law - Sentencing - cumulation of fixed term sentence on non-parole period of sentence first imposed resulted in non-parole period being 93 per cent of total sentence - sentence imposed inconsistent with stated intention - whether non-parole period should be reduced.
LEGISLATION CITED:	Crimes Act 1900 - ss 105A, 112, 113 Crimes (Sentencing Procedure) Act 1999 - ss 21A, 44, 58
CASES CITED:	The Attorney General's Application No. 1 under s 26 of theCriminal procedure Act (1999) 48 NSWLR 27 Brewster (1998) 1 Crim App R 220 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610
PARTIES :	Regina v Michael John Morris
FILE NUMBER(S):	CCA 60199/04
COUNSEL:	B. Knox SC - Crown M. Dennis - Applicant
SOLICITORS:	S. Kavanagh - Crown M. Klees & Associates - Applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0324
LOWER COURT JUDICIAL OFFICER :	Bellear DCJ

60199/04

HANDLEY JA
JAMES J
HOWIE J

MONDAY 16 AUGUST 2004

REGINA v MICHAEL JOHN MORRIS

Judgment

1 HOWIE J: On 30 October 2003 the applicant was sentenced in the District Court for two offences; a break, enter and steal contrary to s 112 of the Crimes Act and an aggravated break and enter with intent contrary to s 113 of that Act. He now seeks leave to appeal against the sentences imposed for those two offences.

2 In respect of the s 113 offence, the applicant was sentenced to imprisonment for 5 years with a non-parole period of 3 years and 4 months. That sentence commenced on 9 March 2003. In respect of the s 112 offence, the judge imposed a fixed term of imprisonment of 3 years and 4 months. That sentence was to commence on 9 July 2004, that is 1 year and 4 months into the sentence for the s 113 offence. The result of these sentencing orders is that the applicant is to serve a sentence with a term of 5 years imprisonment and an overall non-parole period of 4 years and 8 months. The applicant is, therefore, eligible to be considered for release to parole on 8 December 2007. The proportion of the sentence comprised by the non-parole period is 93.3 per cent.

3 There are three grounds of appeal filed on behalf of the applicant. The first is concerned with the sentencing judge’s assessment of the overall sentence to be imposed upon the applicant and the second and third with the determination of the non-parole period.

4 The facts can be stated very briefly. The break, enter and steal offence was the first in time and committed by the applicant between 14 and 18 September 2002. The householder, a 69-year old woman who had just moved to Sydney, came home to find her house in disarray. The glass side panel had been smashed and boxes and drawers had been opened and property thrown about. Unfortunately for the applicant in more ways than one, he had cut himself in committing the offence and DNA matching his was obtained from bloodstains on the carpet. The victim claimed about $2,000 in compensation for property that was stolen and damage occasioned to her premises.

5 The aggravated break and enter offence was committed on 9 March 2003 when the applicant entered a first-storey apartment while the occupants were in bed asleep. They awoke to find the applicant in the premises searching with a flashlight. The male occupant told the applicant to leave the premises and a struggle ensued as a result of which the applicant was apprehended by the householders. He was subsequently arrested by police and charged with that offence and the offence of September 2002.

6 The applicant was aged 27 years at the time of sentencing. He has a criminal record dating from April 1993 in the Children’s Court when he was dealt with for 5 offences of stealing. He was sentenced for his first offence of housebreaking later that year and placed on probation for 18 months. In May 1994 he was again before the Children’s Court for housebreaking, the illegal use of a motor vehicle and some traffic matters. He was placed on a control order for 6 months. In September 1995 he was dealt with in the Local Court for offences of stealing motor vehicles and receiving. He was placed on a good behaviour bond for 12 months with supervision of the Probation and Parole Service and was directed to undergo counselling for alcohol abuse. In March 1996 he was again before the court charged with receiving, this time in the District Court and received a 2-year bond again with supervision and was directed to undergo counselling this time for drug and alcohol. Later that year for offences of assault police he was ordered to serve community service.

7 In 1997 the applicant received his first term of imprisonment. He was sentenced for stealing a motor vehicle, driving in a manner dangerous and failing to comply with the community service order. In September of that year he was sentenced to imprisonment for a break, enter and steal. In June 2001 he appeared before the Blacktown Local Court on four counts of housebreaking and was sentenced to imprisonment for 2 years with a non-parole period of 18 months. On appeal to the District Court, the sentences were reduced to imprisonment for 18 months with a non-parole period of 12 months, expiring on 28 June 2002.

8 That record is significant not only because it reveals that the applicant had previously been imprisoned for break, enter and steal offences but also that, when he committed the offence in September 2002, he was on parole for a similar offence. It should also be noted that after having been sentenced in the District Court by Judge Bellear for the present matters, the applicant appeared in the Parramatta Local Court on 20 November last for offences including two further charges of break, enter and steal for which he was sentenced to imprisonment for 2 years to commence on 9 March 2003.

9 The statement of facts before the District Court indicated that the applicant was on bail for break, enter and steal offences when he committed the offence in March 2003. This reference may explain these last offences for which he was sentenced in the Local Court. Of course the magistrate who dealt with the applicant on that occasion had no option but to impose sentences which were concurrent with those imposed in the District Court because of the restriction upon the power of the Local Court to sentence offenders found in s 58 of the Crimes (Sentencing Procedure) Act.

10 There was a pre-sentence report in evidence. It indicated that the applicant had experienced an unsatisfactory upbringing, during which according to the applicant he was physically abused by his stepfather. The applicant was asked to leave home at the age of 15. Thereafter he lived an itinerant existence staying with various family members or living on the streets. He has been involved in one long-term relationship from which a son was born, aged 7 at the time when the applicant went into custody in 2001. That relationship has ceased but the applicant saw his child regularly before being incarcerated for these offences. The report describes the applicant’s involvement with various prohibited drugs since the age of 15 including both amphetamine and heroin.

11 The applicant gave evidence before the sentencing judge during which he amplified some of the matters contained in the report. He stated that prior to his arrest he was involved in a methadone programme and was continuing to use methadone, but at a higher rate, since being returned to custody. The applicant indicated that he hoped upon his release to re-establish his relationship with his son and to obtain employment with a member of the family who was a baker.

12 There was a report in evidence from an alcohol and drug counsellor at the gaol where the applicant had been on remand. It states that the applicant had neither requested nor received drug and alcohol intervention during his previous sentences and his only involvement with the alcohol and drug services on offer during the period of remand for sentence was for the preparation of the assessment placed before the court. In any event, because of his involvement with the methadone programme in gaol, he was found unsuitable for placement in a rehabilitation centre.

13 It is against these facts and circumstances that the attack upon the exercise of his Honour’s sentencing discretion arising from the grounds of appeal must be considered. The first ground of appeal complains that the sentencing judge erred in finding as a fact that the victims of the aggravated break and enter offence “feared for their lives” and “…will continue to suffer severe psychological harm for a considerable period of time”. On behalf of the applicant it is argued that this was a matter of aggravation arising under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. That provision in effect provides that it is an aggravating factor that “the injury, emotional harm, loss or damage caused by the offence was substantial”. The complaint is that as it was an aggravating factor the sentencing judge had to be satisfied that it arose beyond reasonable doubt and that on the material before the court such a conclusion could not be reached.

14 The passage in the Remarks on Sentence from which this complaint arises was when his Honour was considering various matters of aggravation under s 21A. The relevant part is as follows:

………….. Further with respect to the aggravated break enter with intent to commit serious indictable offence, the two persons in the house was extremely vulnerable and no doubt particularly feared for their lives when it was noticed that a person was in their premises.

Arising from that of course is that despite there not being a Victim Impact Statement from either of the two victims who were in the house, there is no doubt that they will continue to suffer severe psychological harm for a considerable period of time, and that aspect is to be taken into account.”

15 The agreed Statement of Facts contained the following:

“The occupier [RT] of Unit [] Lane Street, Wentworthville has expressed fears that the accused may return to her unit. Both [RT] and [DL] were traumatised as a result of the incident.”


Although the names and address of the persons who were the victims of this offences appear in the Statement of Facts, I have omitted them. There was nothing before his Honour to indicate that both persons in the flat “feared for their lives” and this finding was, with respect, some what of an exaggeration at least so far as the male occupant was concerned. However, the undisputed assertion that they were both “traumatised” was sufficient to satisfy the aggravating factor in s 21A(2) to which I have referred.

16 In The Attorney General’s Application No. 1 under s 26 of the Criminal Procedure Act (1999) 48 NSWLR 27, the guideline judgment in respect of housebreaking offences, there is a reference in the judgement of Grove J to the effect of such a crime upon the victims of the offence and the sense of “violation and insecurity” that it causes. The following passage from Brewster (1998) 1 Crim App R 220 was quoted and endorsed by Grove J at [45]:

…………… even where the victim is unaware at the time that the burglar is in the house, it can be a frightening experience to realise that a burglary has taken place, and it is all the more frightening if the victim confronts or hears a burglar. Generally speaking it is more frightening if the victim is in the house when the burglary takes place and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to his house during the daytime to find that it has been burgled.

17 The offence with which the applicant was charged arising from his entry into the unit identified the aggravating circumstance as breaking and entering the dwelling house “knowing there to be a person or persons therein”. That circumstance is contained in s 105A of the Crimes Act and its effect is to increase the maximum penalty for the offence, and hence its seriousness. It is a recognition by Parliament of the deleterious effect upon the health and wellbeing of a householder who happens to confront a stranger in his or her home. In my view, the material indicated that the element of aggravation was present to a degree entitling his Honour to act upon it. Even in the absence of the portion of the statement of facts, which I have quoted above, a court would be entitled to infer the effect of such an incident upon the victims and take it into account as an aggravating factor.

18 As will shortly become apparent it is my view that the sentencing discretion did miscarry and in the event that this Court is required to resentence the applicant, the total sentence of five years imposed by his Honour was in my view the very least sentence that could be imposed to reflect the total criminality for which the applicant was to be punished. It was less than the sentence that his Honour intended to impose and the applicant has probably received a windfall in that regard, bearing in mind his breaches of conditional liberty in committing both offences.

19 In coming to this conclusion I note that his Honour generously, in my opinion, granted the applicant a 20% discount for the plea of guilty and remorse in respect of both offences, notwithstanding that the plea of guilty in respect of the second offence came upon arraignment in the District Court after plea negotiations with the Crown. In so far as his Honour took into account that the applicant was remorseful, I can see no evidence to support that finding.

20 The second ground of appeal complains that the sentencing judge failed to take into account that he was accumulating sentences when finding that there were any special circumstances justifying a reduction of the non-parole period under s 44 of the Crimes (Sentencing Procedure) Act. That ground was no longer pressed by counsel at the hearing of the appeal. The third ground of appeal that was still maintained is somewhat related. It complains that his Honour failed to give any, or adequate, weight to the purposes of parole when determining the head sentence and the overall non-parole period.

21 Before imposing the sentences the sentencing judge stated:

……….[For the offence of break enter and steal] I propose to sentence him to imprisonment for a period of five years, and on the second count, that is, the offence of aggravated break enter with intent, I propose to sentence him to imprisonment for five years.

I have considered at this time special circumstances regarding this offender, but I find that they do not exist. I now must consider principles of totality which I now take into account.”

22 However, it should be obvious from the sentences that I have set out at the commencement of this judgment that his Honour did not in fact sentence the applicant to imprisonment for five years on the break enter and steal offence rather he imposed a fixed term of 3 years and 4 months to commence after 1 year and 4 months had been served of the sentence for the aggravated break enter offence. The consequence was that the fixed term all but obliterated the parole period of the sentence that had been imposed initially and brought about a proportional relationship between the minimum period of imprisonment and the total term of over 90 per cent rather than the statutory ratio of 75 per cent.

23 If his Honour has been true to his intention the sentencing orders would have resulted in an overall sentence of 6 years 4 months with an overall non-parole period of 4 years 8 months, the minimum period of imprisonment would have been about 73 per cent of the overall term of the sentence, which is roughly the statutory relationship. This would have accorded with the finding that there were no special circumstances. It should also be noted that the relationship between a head sentence of 5 years and a non-parole period of 3 years 4 months is 60 per cent.

24 The sentencing exercise was somewhat complicated at least in a technical sense, because two different versions of s 44 of the Crimes (Sentencing Procedure) Act applied to the two offences. In respect of the offence committed in September 2002 the applicable provision was relevantly:

(1) When sentencing an offender to imprisonment for an offence, a court is required:
(a) firstly, to set the term of the sentence, and
(b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

25 In respect of the offence committed in March 2003 the provision was relevantly:

(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

26 In other words for the September 2002 offence the judge had to specify the term of the sentence and then the non-parole period. His Honour ought also to have given reasons for declining to fix a non-parole period for that offence: s 45 (now repealed). But for the March 2003 offence the non-parole period had to be set first and then the balance of the term. The sentencing judge could be forgiven for not observing these niceties, particularly when neither of the parties drew it to his attention.

27 The sentencing of the applicant, therefore, unfortunately involved both error and inconsistency between his Honour’s stated intention and the sentence imposed. The Crown has argued that, even if error be found, no lesser sentence is warranted. There is merit in that argument. I have already stated my opinion that no lesser sentence than 5 years imprisonment could reflect the seriousness of the offences. That sentence must, as must the overall non-parole period, also reflect general deterrence and in this case specific deterrence.

28 The pre-sentence report expressed the following assessment of the applicant:

The offender presents as an anxious person with significant issues due to his problematic upbringing, subsequent drug dependency and reported suicide attempts. His only attempt to address his issues in the past has been through participation in a methadone program, but it appears that this has proved ineffective in dealing with drug issues. He appears to be in need of intervention for drug issues as well as possible psychological or psychiatric problems, but it would seem that he would need to make a more concerted effort to deal with his problems than he has in the past if he is to achieve stability.

This assessment and the other material before the sentencing judge indicates to me that had the sentences been imposed that it appears his Honour intended to pass, I doubt that this Court would intervene.

29 However, there is no Crown appeal and the Court cannot increase the sentence to achieve a result that might assist the applicant once released from what will be his longest period of imprisonment by far. I do not believe that there are special circumstances but, not without some doubt, I would be prepared to reduce the overall non-parole period to give him some incentive while in custody to reform. But in my view the minimum sentence that the applicant must serve is one totalling 4 years. The sentences I propose have been reduced because they are to be totally cumulative and do not represent what the sentences ought to have been had they been dealt with separately. I have followed the course suggested in Mill v The Queen (1988) 166 CLR 59 rather than that in Pearce v The Queen (1998) 194 CLR 610 simply because of the difficulty in readjusting the sentences on appeal.

30 I would grant leave to appeal and quash the sentences imposed in the District Court. In lieu I propose that the following orders be made:

1. For the offence of break, enter and steal, the applicant is sentenced to imprisonment for a term of three years with a non-parole period of two years. The sentence is to commence on 9 March 2003 and the non–parole period will expire on 8 March 2005. The applicant is to be released to parole on that date subject to the sentence that is next imposed.
2. For the aggravated break, enter and steal offence, I set a non-parole period of 3 years to commence on 9 March 2004 and to expire on 8 March 2007, the date upon which the applicant is eligible to be released to parole. The balance of the term is 1 year to date from 9 March 2007.

31 HANDLEY J: I agree.

32 JAMES J: I also agree.

33 HANDLEY J: The orders are as pronounced by Howie J.

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Last Modified: 08/18/2004