R v Morgan [2000] NSWCCA 96

New South Wales Court of Criminal Appeal

CITATION : R v Morgan [2000] NSWCCA 96 FILE NUMBER(S) : CCA 60372/99 HEARING DATE(S) : 24/03/00 JUDGMENT DATE : 24 March 2000

PARTIES : Regina v Jeffrey West Morgan JUDGMENT OF : Abadee J; James J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0366 LOWER COURT JUDICIAL Rummery DCJ OFFICER :

COUNSEL : JS Stratton - Applicant LMB Lamprati - Crown SOLICITORS : Brenda Duchen - Applicant SE O'Connor - Crown

DECISION : Appeal allowed

IN THE COURT OF CRIMINAL APPEAL 60372/99 ABADEE J JAMES J

Friday 24 March 2000 REGINA v Jeffrey MORGAN

JUDGMENT

1 ABADEE J: The court has reached a decision. I will ask Mr Justice James to deliver judgment. 2 JAMES J: Jeffrey West Morgan has applied for leave to appeal against sentences imposed on him in the District Court on 18 June 1999 by his Honour Judge Rummery, on two charges of robbery in company committed on 27 March 1997 and 17 March 1998, to which he had pleaded guilty. In sentencing the applicant Judge Rummery took into account two offences of driving a motor vehicle while disqualified and one offence of stealing a motor vehicle, which was used in the robbery committed on 18 March 1998. 3 On the charge of robbery in company committed on 17 March 1998, Judge Rummery sentenced the applicant to a sentence of penal servitude for five years nine months, consisting of a minimum term of three years six months to date from 17 March 1998 and an additional term of two years three months. On the charge of robbery in company committed on 27 March 1997, Judge Rummery sentenced the applicant to a sentence of penal servitude for four years, consisting of a minimum term of one and a half years to date from 16 September 2001 and an additional term of two and a half years. His Honour accordingly made the second sentence cumulative on the minimum term of the first sentence he imposed. 4 On 18 June 1999 Judge Rummery also sentenced two prisoners named Pearce and Cakau, who were co-offenders in the robbery in company committed on 18 March 1998. In sentencing Pearce for the offence of robbery in company, Judge Rummery took into account offences committed on 17 March 1998 in connection with the robbery, of stealing a motor vehicle, driving a motor vehicle in a dangerous manner while pursued by police, driving a motor vehicle knowing that the vehicle had been taken without the driver's consent and driving a motor vehicle whilst unlicensed. 5 Judge Rummery sentenced Pearce for the robbery in company committed on 17 March 1998 to penal servitude for five years three months, consisting of a minimum term of three years three months and an additional term of two years. 6 In sentencing Cakau for the offence of robbery in company on 17 March 1998, Judge Rummery took into account offences committed on 2 January 1998 of driving a motor vehicle whilst unlicensed, assaulting a police officer and resisting arrest by a police officer. Judge Rummery sentenced Cakau to penal servitude for four years, consisting of a minimum term of two years and an additional term of two years. 7 The facts of the robbery in company committed on 27 March 1997, as found by his Honour, can be briefly summarised as follows. 8 A group of six male persons, including the applicant, entered a branch agency of the TAB. One member of the group forced an access door to the staff area of the office. All six members of the group ran into the staff area and all of them joined in assaulting the manager of the branch, a fifty-eight year old woman, by pushing her and slapping her in the face. A thousand dollars in cash was taken from the manager personally and fifteen hundred dollars in cash was taken from a cash drawer of the agency. The manager suffered some physical injuries, which were relatively minor. However, she also suffered shock, depression and a post-traumatic psychiatric disorder and in a psychiatrist's opinion it was unlikely that she would be able to return to her former work or any similar work. 9 On 18 June 1997 the applicant was arrested and taken to a police station. He ran away from the police station but was quickly recaptured. This conduct by the applicant on 18 June 1997 gave rise to a charge of escape which was, at one stage, brought against the applicant. The applicant remained in custody until 10 September 1997, when he was released on bail. He remained at liberty until he was arrested on 17 March 1998, after the robbery had been committed. 10 The facts of the offence of robbery in company committed on 17 March 1998, as found by his Honour, can be briefly summarised as follows. 11 On 17 March 1998 the applicant, the co-offenders Pearce and Cakau, and two other co-offenders who were never apprehended and whose identity is unknown, arrived outside a branch of the Commonwealth Bank in a Sydney suburb. The applicant remained outside the bank as a look-out. The others entered the bank, making some attempt to disguise themselves by pulling clothing over their faces. Inside the bank one of the unknown offenders jumped the service counter and there was a struggle between him and the manager of the branch. One of the offenders succeeded in opening a staff security door. The bank tellers on duty were directed to open their cash drawers. One of the bank tellers was assaulted. An amount of about sixty thousand dollars in cash was seized. The offenders ran from the bank and escaped in a vehicle which had been stolen. 12 The bank manager reported the registration number of the vehicle to the police and subsequently the vehicle was sighted by police. By this time the only occupants of the vehicle were the applicant, Pearce and Cakau. There ensued a high speed chase. Ultimately the chase ended and the three offenders were arrested. Immediately before the chase ended, police observed that the stolen vehicle was being driven by Pearce, that the applicant was in the front passenger seat and that Cakau was in a rear seat. 13 The sentencing judge made some important further findings about the offence of 17 March 1998. At page 5 of his remarks on sentence his Honour said: "The court deals with the facts in relation to each of the prisoners on bases that include that none of them jumped the service counter, opened the staff security door, entered the banking chamber, or was the offender who assaulted either of the bank officers. And as to the prisoner Morgan, that he did not enter into the customer area of the bank premises." Later in his remarks on sentence, his Honour said: "The court is unable to conclude that any of the prisoners for sentence were the ringleaders in the criminal enterprise. While I think it is likely that each one of them knows more about it than they have admitted, I am unable to conclude to the necessary standard that the facts established contradict the claim made by each prisoner that they joined the criminal enterprise at a very late stage. None of the prisoners I am dealing with crossed beyond the counter and into the banking chamber, nor did any of them lay hands on any of the bank staff."