New South Wales Court of Criminal Appeal CITATION : R v Morgan [2001] NSWCCA 104 FILE NUMBER(S) : CCA 60191/99 HEARING DATE(S) : Monday 19 February 2001 JUDGMENT DATE : 19 February 2001 PARTIES : Regina v Joseph Morgan JUDGMENT OF : Grove J at 1; Hulme J at 13 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0108 LOWER COURT JUDICIAL Howie DCJ OFFICER : COUNSEL : E. Wilkins (Crown) In person (Applicant) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : Criminal Law and Procedure - Robbery in Company - Planned Crime - Jewellery Store - Considerable Loot Unrecovered - High Degree of Seriousness DECISION : Application for leave to appeal granted; Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60191/99 GROVE J HULME J Monday 19 February 2001 REGINA v JOSEPH MORGAN JUDGMENT 1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed in the Sydney District Court by Howie DCJ (as he then was). 2 The applicant had appeared for trial before his Honour and a jury charged with the offence of robbery in company whilst armed with a dangerous weapon and larceny of a motor vehicle. Pursuant to directions by his Honour the applicant was found not guilty on the first count but was convicted by the jury of the available alternative of robbery in company. It can be seen that the distinction was that the aggravating circumstance of being armed with a dangerous weapon was omitted from the offence of which the applicant was ultimately convicted. 3 After conviction his Honour was asked to take into account on a Form 1 under the Criminal Procedure Act a comparatively minor offence of driving whilst disqualified. Whilst the offence itself was comparatively minor it bore some relevance to the facts and circumstances of this crime. 4 The crime itself was serious to a very high degree; it was obviously planned. A number of men in a stolen vehicle approached the jewellery store of Percy Marks Jewellers at about 9.30am on the morning of 23 September 1996. At least one of the men was equipped with a sledge hammer. There was a forced entry into the store and, as the learned sentencing Judge observed, it is apparent that the participants were aware of the necessity to have equipment enabling entry into the more secured areas of the store. This was achieved and jewellery valued at more than half a million dollars was taken from the store. It is true that access to a safe was not ultimately gained but, as I have indicated, there was a considerable amount of loot taken. The robbers escaped in the stolen vehicle. 5 Police who were nearby for an unassociated reason came to the scene and shots were fired. The applicant who was, whilst disqualified, driving the car was wounded. It is not necessary for present purposes to detail all the circumstances so it suffices to observe that these were related by the sentencing Judge and I would adopt what he has said about it. It appears that the wound to the applicant may have resulted from the shattering of glass when a bullet struck the vehicle which was later abandoned. Even the few words that I have used to describe it, confirm that the offence was an audacious exercise. 6 At the time the applicant appeared before Howie DCJ his Honour recorded the situation that it was only the applicant who had been arrested and charged, although obviously there were other offenders involved. 7 The applicant, who is a comparatively young man, is now aged twenty six years. He was born on 2 December 1974. He is an Aboriginal Australian and it is appropriate for any sentencing court to take that circumstance into account. The circumstance is ordinarily taken into account and should be taken into account in favour of leniency being extended to the applicant. The extent of leniency, however, must vary in accordance with the seriousness of the crime and other relevant circumstances. The conclusion his Honour reached was, on the charge of robbery in company, the applicant should be sentenced to a total term of seven years and one month divided into a minimum term of four years and one month and an additional term of three years, during which the applicant will be eligible for release to parole. 8 His Honour explained the apparently awkward figures as deriving from his giving credit to the applicant for the period in custody. From time to time after arrest and charge he was refused bail, released on bail and for a time was taken into custody in respect of another offence. It is not necessary presently to schedule what I might describe as the ins and outs of the applicant to custody. Suffice it to say that his Honour took this matter properly into account. On the charge of stealing the motor vehicle the applicant was sentenced to a fixed term of twelve months penal servitude, which has already been served and is expired. His Honour took into account the charge of driving whilst disqualified, mentioned on the Form 1 in respect of the first count. 9 The applicant appeared for himself in the application before the Court. He has tendered to the Court a moving document which sets out the difficulty which he is encountering in his current custody. He has pointed out he is in maximum security and remains in maximum security although there is only a little over two years until he is eligible for consideration of parole. He has also mentioned matters of tension, hatred and violence which particularly effects him in Goulburn where he is being held; these matters he perceives as related to his Aboriginality. 10 The circumstances in which he is held and the difficulty which he is encountering are not matters which can be considered by this court on appeal unless a basis is shown for this court intervening and imposing sentence itself. For my part I have sympathy with the applicant in the problems which he is encountering but it must be understood that this is not a court of general review but a court of error. Our jurisdiction can only be exercised if there has been some miscarriage in the court below. It is not suggested that the learned sentencing Judge made any error of law nor misapprehended any fact that was put before him. The sentence itself, given the high level of seriousness of the circumstances and the applicant's own background, makes the imposition well within the range of the sound exercise of his Honour's discretion. Indeed, viewed objectively many people would think that any error in the sentence would be on the side of leniency. I am unable to come to the conclusion that we should intervene as invited by the applicant. 11 As I have said, he substantially asks this Court to review the sentence but that is not the function of this Court neither is it our jurisdiction. 12 In all the circumstances, therefore, given the length of sentence I would grant the application for leave to appeal but I would dismiss the appeal. 13 HULME J: I agree with the orders proposed and in substance with his Honour's reasons. I would add only this; the applicant did ask that the Court look at the whole matter. Having done so, I take the view that the applicant was probably fortunate in not receiving a heavier sentence. Serious offences have to be met by serious penalties. A robbery such as occurred in this case involving half a million dollars or more has to be regarded as a very serious offence. The maximum which could have been imposed under the section is twenty years, although it may well be that in practical terms because this was only a robbery in company rather than one involving dangerous weapons, the maximum should be regarded as somewhat less but compared against either the twenty years or that lesser figure for a half million dollar robbery, eight and a half years is by no means excessive. 14 The applicant has an appalling record and unless after this sentence he reforms, he is going to have to spend probably most of the rest of his life in gaol. The hardship he has referred to in his submissions is something which he should try to remove for the future by not committing offences again. 15 GROVE J: The order of the Court is that the application for leave to appeal is granted but the appeal is dismissed. ********** 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.