R v Morris [2004] NSWCCA 283

New South Wales Court of Criminal Appeal

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 The Attorney General's Application No. 1 under s 26 of theCriminal procedure Act (1999) 48 NSWLR 27 CASES CITED : 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