R v Morris [1999] NSWCCA 252

New South Wales Court of Criminal Appeal CITATION : R v Morris [1999] NSWCCA 252 FILE NUMBER(S) : CCA 60530 /98 HEARING DATE(S) : 18 AUGUST 1999 JUDGMENT DATE : 18 August 1999

PARTIES : Kenneth John Morris Regina (NSW) JUDGMENT OF : Wood CJ at CL; Greg James J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0328 LOWER COURT JUDICIAL OFFICER : FREEMAN DCJ

COUNSEL : Self L. Lampratti SOLICITORS : Self S.E. O'Connor CATCHWORDS : DECISION : Leave to appeal against sentence refused.

IN THE COURT OF CRIMINAL APPEAL

60530/98 WOOD CJ at CL GREG JAMES J

WEDNESDAY 18 AUGUST 1999

REGINA v KENNETH JOHN MORRIS

JUDGMENT

1 THE COURT: The application for leave to appeal against sentence is refused, the Court being of the unanimous decision that the appeal does not raise any question of general principle or reveal any error on the part of the sentencing judge. Pursuant to s 21A of the Criminal Appeal Act, the Court's reasons in short form are as follows: 2 When he appeared for sentence before Freeman DCJ, the applicant adhered to a plea of guilty, which had been entered in the Local Court, to one count of robbery. One count of break, enter and steal, included in a Form 1, was also taken into account. The applicant was sentenced to a minimum term of penal servitude for two years and three months and to an additional term of one year and nine months. 3 The offence of robbery occurred when the applicant approached the victim in a telephone booth, threatened him and snatched his wallet. This took place one day after the applicant had been released on bail for the offence included in the Form 1, which had involved the theft of a substantial quantity of jewellery from a residential dwelling. 4 Each offence was committed to feed a heroin habit acquired while the applicant had been serving a previous sentence. 5 The applicant was twenty-two years of age when he appeared for sentence and was at the time serving a three months sentence for shoplifting which had been back-dated to the time of his arrest on the robbery charge and had approximately two weeks to run. 6 The applicant had an extensive criminal record dating back to 1991 when he was convicted of armed robbery. His subsequent record included convictions for stealing, break enter and steal, goods in custody, using false instrument, absconding from lawful custody, malicious damage, assault, shoplifting, larceny, as well as convictions for street offences and serious traffic offences. He has served several terms of imprisonment for these matters, on one occasion following breach of a recognisance. On another occasion his parole was revoked following the commission of further offences. 7 The plea of guilty was sufficiently recognised by his Honour and appropriately noted to be of limited value, having regard to the circumstance that the applicant was caught, with the victim's wallet in his possession, shortly after the offence occurred. 8 The applicant was not disadvantaged by the course which the sentencing proceedings took, it being at his insistence that the matter proceed on the day that he was called up, and that he be represented by the duty solicitor with whom he had sufficient opportunity to confer. 9 The offence for which the applicant was sentenced was a serious offence for which a significant custodial sentence was warranted, having regard to his prior record, and the aggravating circumstance that it was committed while on bail: Richards (1981) 2 NSWLR 464 at 465. 10 The circumstance of his drug addiction was not a mitigating factor: Henry (1999) NSW CCA 111. 11 The applicant's expressed desire to do something about his drug addiction and his willingness to enter a residential drug rehabilitation program were properly and sufficiently taken into account as special circumstances leading to an adjustment of the usual proportion between the minimum and additional terms. 12 The learned sentencing judge correctly took into account all the relevant subjective and objective circumstances and the sentence imposed was well within the legitimate sentencing range. 13 We would, however, endorse the observations and recommendation of his Honour that the release of the applicant, upon expiry of the minimum term, be upon condition that he attend the William Booth Centre. In that regard we note his adherence today to his desire to undertake drug rehabilitation upon release. **********