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." 14 In his remarks on sentence his Honour said that he concluded that the objective circumstances of the applicant, Pearce and Cakau were the same. His Honour said that he would not distinguish between the three of them on the basis that the applicant had remained in the vestibule of the building, whereas Pearce and Cakau had gone inside the building or on the basis that Pearce had been the driver of the stolen vehicle during the police chase. 15 In assessing the objective gravity of the offence of robbery in company committed on 18 March 1998, his Honour referred to the judgment of the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346, which is a guidelines judgment on sentencing for the offence of armed robbery. His Honour referred to the seven features of the class of offences of armed robbery described at paragraph 162 of the Chief Justice's judgment in Henry. His Honour found that both Pearce and the applicant were young offenders, but with more than a little criminal history, that no weapon had been involved in the offence, that so far as the particular offenders were concerned there was only a limited degree of planning, that the particular offenders had not offered any violence but violence had been offered by the co-offenders, that the bank staff had been in a vulnerable position, that the large amount of sixty thousand dollars had been stolen, and that there had been pleas of guilty, the significance of which was limited by the strong Crown case. 16 His Honour devoted many pages of his lengthy remarks on sentence to a careful consideration of the subjective circumstances of the applicant and the two co-offenders. I will note only what appear to be the more salient subjective circumstances of the three offenders. 17 The applicant was born in 1973. He was the child of an Aboriginal mother and a European father, who had separated when the applicant was four years old. He had an extensive criminal history. He was a married man with two children. At the time of his arrest he was in employment. He had no history of drug or alcohol abuse. In 1992 or 1993 he had obtained a Higher School Certificate, with quite a high mark. In a pre-sentence report, a probation officer expressed the opinion that the applicant had the potential to better himself. The applicant had played rugby union and rugby league at a fairly high level. 18 The co-offender Pearce was born in 1974. He is of Aboriginal origin. He had a deprived childhood, with a father who was a heroin addict. He also had an extensive criminal history. He was in a de facto relationship and there was a child of the relationship. He had been unemployed since 1996 but had aspirations to be a rugby league footballer. He is of below average intelligence, emotionally immature, suffering from anxiety and depression, and lacking coping skills. He has a gambling problem. He may have suffered mild brain damage as a result of injuries received while playing sport and as the result of a motor vehicle accident. 19 The co-offender Cakau was born in 1979 and was accordingly several years younger than the applicant and Pearce. He was born in Australia but is of Fijian origin. His criminal history was limited to two minor convictions in the Children's Court. He had been living with his parents, both of whom were in employment. He co-operated fully with the police when he was arrested. Cakau's family is active in Fijian churches in Sydney. A number of referees provided evidence that, in their opinion, the offence for which Cakau was to be sentenced was out of character. In the opinion of a psychologist, Cakau was a young man of limited capacity who had been adversely affected by the use of cannabis. His Honour said of Cakau: "This prisoner is the youngest and has the least unfavourable criminal record. I assess his prospects of rehabilitation as high, and especially because of the support he has from his family. He pleaded guilty at the earliest opportunity." 20 A number of grounds of appeal against the sentences imposed on the applicant were sought to be relied on in written and oral submissions. It is convenient to deal with these grounds of appeal in the following order, which is not the same order as the order in which the grounds were argued, either in writing or orally, by counsel for the applicant. 21 It was submitted that his Honour had erred in imposing a sentence in accordance with R v Henry, when the applicant was to be sentenced for the offences of robbery in company and not armed robbery. I do not consider that this submission should be upheld. It is true that his Honour referred in his remarks on sentence to R v Henry and that R v Henry is a guidelines judgment for offences of armed robbery. However, his Honour expressly described R v Henry in his remarks on sentence as being a guidelines judgment for cases of armed robbery and I do not consider that his Honour made the error of regarding R v Henry as governing the sentencing of the applicant. 22 In my opinion, it was not erroneous or inappropriate for the judge to determine, as he did, whether the features of the type of offence described by the Chief Justice in paragraph 162 of his judgment in R v Henry were to be found in the present case. These features are of general application in the sentencing of offenders who have committed robberies. Obviously, there was no weapon in the present case. However, the age of each offender, the criminal history of each offender, the degree of planning in which each offender had engaged, the amount of violence which had occurred in the course of the robbery, whether the victims of the robbery had been in especially vulnerable positions, what amount of money had been taken and whether each offender had pleaded guilty and, if so, in what circumstances, were very relevant factors for his Honour to determine. 23 It was submitted that his Honour did not give sufficient weight to the principle of totality. His Honour was conscious of the need to observe the principle of totality. In his remarks on sentence his Honour referred expressly to the principle of totality and to the leading decision of this Court in R v Holder v Johnson (1983) 3 NSWLR 245. I do not consider that his Honour failed to give sufficient weight to the principle or principles of totality, except in a respect to which I will refer when I deal with other submissions made by counsel for the applicant. 24 It was submitted by counsel for the applicant that his Honour had erred in not varying the overall sentence imposed on the applicant, after it was pointed out to his Honour that his Honour had sentenced the applicant for an offence to which the applicant had not pleaded guilty, that is, an alleged offence of escape. His Honour, in the principal part of his remarks on sentence, included among the offences for which he was sentencing the applicant an offence of escape allegedly committed on 18 June 1997. His Honour stated in this principal part of his remarks that in the sentencing of the applicant for the two offences of robbery in company and the offence of escape, he should "aggregate the criminality" of the three offences and observe the sentencing principle of totality. His Honour proceeded to pass sentences on the applicant for the three offences, comprising the two sentences for robbery in company which I have already referred to and a sentence for the offence of escaping, being a fixed term of penal servitude for six months commencing on 18 June 1999. 25 Shortly afterwards in the proceedings on sentence, it was pointed out to his Honour that, although a charge of escaping had at one time been brought against the applicant, no charge of escaping had been included in the indictment to which the applicant had actually pleaded. After it had been drawn to his Honour's attention that the applicant had not pleaded guilty to any charge of escaping, his Honour withdrew the sentence he had imposed for the offence of escaping but did not vary the sentences he had imposed for the two offences of robbery in company. In fairness to his Honour, it should be noted that he was not asked to do so. The concern of the applicant at the time he was sentenced, as expressed by his legal representative, was that, if he was sentenced for an offence of escaping, that would affect his classification as a prisoner in the correctional system and hence the conditions of his custody 26 In my opinion, this submission succeeds. Even though the sentence the sentencing judge initially imposed for the alleged offence of escaping was comparatively short and was made totally concurrent with part of the minimum term of the sentence for the robbery in company committed on 17 March 1998, his Honour was obliged, as his Honour indeed recognised, to set a total effective sentence which would reflect the total of the criminality involved in all the offences for which he was properly sentencing the applicant. If one of the offences, even if it was the least serious offence, was removed from the aggregate of offences for which the applicant was being sentenced, then the total sum of the criminality of the applicant was, to some extent, reduced, and some downward adjustment should have been made to the total effective sentence that was being imposed. 27 It was also submitted by counsel for the applicant that the sentences imposed on the applicant, when related to those imposed on his co-offenders, would leave the applicant with a legitimate sense of grievance. Counsel referred to the different sentences passed on the applicant and on the co-offenders for the offence of robbery in company committed on 18 March 1998. Reference was made to Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1995-1996) 189 CLR 295. 28 I have noted earlier in this judgment that his Honour found that there was no difference between the applicant and the two co-offenders as regards their objective criminality in the offence of 18 March 1998. Hence, it was submitted, any differences between the sentences passed on the three offenders for the same offence, subject perhaps to the application of the principle of totality, could only be justified on the basis of a difference in the subjective circumstances of the offenders. 29 In the case of the co-offender Cakau, the sentencing judge expressly found that he had far more favourable subjective circumstances, consisting of his youth, his much less serious criminal record, his prospects of rehabilitation, his family support and his early plea of guilty. In my opinion, it has not been shown that the sentence imposed on Cakau should give rise to a legitimate sense of grievance in the applicant or that the sentence imposed on Cakau was not properly proportional to the sentence passed on the applicant. 30 However, in the case of the co-offender Pearce, his Honour did not make any express finding that the subjective circumstances of Pearce were more favourable than the subjective circumstances of the applicant, and, although the subjective circumstances of the applicant and Pearce differed in some respects, I do not consider that the applicant should have been held to have had less favourable subjective circumstances. 31 In my opinion, the difference between the sentences passed on the applicant and on Pearce for the offence of robbery in company committed on 18 March 1998, small though it was, was apt to give rise to a legitimate sense of grievance in the applicant. On this ground also I would allow the appeal. 32 It is accordingly necessary for the court to re-sentence the applicant. I have already stated the objective facts of the offences and the subjective circumstances of the applicant. In my opinion, apart from the omission to make a small adjustment to the sentences after the offence of escaping was removed as an offence for which the applicant was being sentenced and apart from the small disparity between the sentence passed on the applicant and the sentence passed on the co-offender Pearce for the offence of 18 March 1998, the sentences passed by the sentencing judge were appropriate and were of the order which should have been imposed. 33 I would be of the opinion that in re-sentencing the applicant the court should impose sentences which vary from the sentences passed by the sentencing judge, only slightly. Like the sentencing judge, I would find special circumstances in the circumstances found by his Honour. 34 I would propose that leave to appeal be granted, that the appeal against sentence be allowed, that the sentences imposed on 18 June 1999 be quashed, that in lieu thereof, on the charge of robbery in company on 17 March 1998 the applicant be sentenced to a sentence of penal servitude for five years three months, consisting of a minimum term of three years three months commencing on 17 March 1998 and expiring on 16 June 2001, and an additional term of two years. That on the charge of robbery in company committed on 27 March 1997, he be sentenced to a sentence of four years penal servitude, consisting of a minimum term of one and a half years commencing on 17 June 2001 and expiring on 16 December 2002, and an additional term of two and a half years. The earliest date on which the applicant will be eligible for release on parole will be 17 December 2002. ABADEE J: I agree with the reasons of Justice James and the orders that he proposes. The orders of the court will therefore be the orders proposed by Justice James. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.