New South Wales Court of Criminal Appeal CITATION: Morris, Morris and Snelson v R [2008] NSWCCA 182 HEARING DATE(S): Wednesday 18 June 2008 JUDGMENT DATE: 21 August 2008 JUDGMENT OF: Spigelman CJ at 1; Hidden J at 2; Price J at 39 Bernard Morris: sentences confirmed but fixed term of 12 months on aggravated enter dwelling with intent to commence on 22 October 2008. Aggregate sentence of 4 years with non-parole period of 2 years 9 months. DECISION: Bruce Morris: leave to appeal granted, appeal dismissed. James Snelson: leave to appeal granted, appeal dismissed. CATCHWORDS: CRIMINAL LAW: - joint applications for leave to appeal against sentence - aggravated break, enter and steal (2) - in one case, additional charge of aggravated enter with intent to steal - whether pleas of guilty taken into account - whether adequate distinction in sentence because of offenders' different roles, subjective cases - in one case, whether assistance to authorities taken into account - whether overall sentence after accumulation reflected finding of special circumstances - whether lesser sentences warranted Crimes Act (s112(2); s111(2)) LEGISLATION CITED: Crimes (Sentencing Procedure) Act (s21A(3)(k); s22) Criminal Appeal Act s6(3) R v Fernando (1992) 76 A Crim R 58 R v Thomson & Houlton (2000) 49 NSWLR 383 CASES CITED : R v Lawrence [2005] NSWCCA 91 SZ v R (2006) 168 A Crim R 249 R v Button & Griffen [2002] 54 NSWLR 455 Douar v R [2005] 159 A Crim R 154 Bernard Morris (applicant) PARTIES: Bruce Morris (applicant) James Snelson (applicant) Regina (respondent) FILE NUMBER(S): CCA 2007/3030; 2007/2980; 2007/3097 D Patch (applicant Bernard Morris) COUNSEL: C Davenport SC (applicant Bruce Morris) M Paish (applicant Snelson) P Ingram (Crown) North & Badgery (applicant Bernard Morris) SOLICITORS: Legal Aid Commission (applicant Bruce Morris) Andrews Solicitors (applicant Snelson) Solicitor for Public Prosecutions (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/61/0076; 06/61/0116; 06/61/0133 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 03/05/2007 IN THE COURT OF CRIMINAL APPEAL 2007/3030 2007/2980 2007/3097 SPIGELMAN CJ HIDDEN J PRICE J Thursday 21 August 2008 Bernard Morris v R; Bruce Alexander Morris v R; James Colin Snelson v R Judgment 1 SPIGELMAN CJ: I agree with Hidden J 2 HIDDEN J: Each of the three applicants, Bernard Morris, Bruce Morris and James Snelson, pleaded guilty in the District Court to two charges of aggravated break, enter and steal, an offence under s112(2) of the Crimes Act which carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years. The three of them were jointly involved in those offences. Each of them asked the sentencing judge to take into account two charges of take and drive a conveyance, in which they were also jointly involved, on a form 1. In addition, Bernard Morris pleaded guilty to a charge of aggravated enter dwelling with intent to steal, an offence under s111(2) of the Crimes Act which carries a maximum sentence of 14 years imprisonment. 3 They were sentenced as follows: § On each of the charges of aggravated break, enter and steal, taking the form 1 matters into account on the first of them, Bernard Morris was sentenced to concurrent terms of imprisonment for 4 years, comprising a non-parole period of 2½ years and a balance of term of 1½ years, commencing on 22 January 2007. On the charge of aggravated enter dwelling with intent to steal, he was sentenced to imprisonment for a fixed term of 12 months, to be served at the expiration of the non-parole period in respect of the first two charges. The aggregate sentence, then, was imprisonment for 4 years with an effective non-parole period of 3½ years. § On each of the charges of aggravated break, enter and steal, with the form 1 matters again being taken into account on the first of them, Bruce Morris was sentenced to concurrent terms of imprisonment for 4 years, comprising a non-parole period of 2 years and a balance of term of 2 years, commencing on 29 March 2007. § On each of the charges of aggravated break, enter and steal, with the form 1 matters being taken into account in the same way, James Snelson was sentenced to concurrent terms of imprisonment for 4 years and 8 months, comprising a non-parole period of 2½ years and a balance of term of 2 years and 2 months, also commencing on 29 March 2007. Each of them seeks leave to appeal against those sentences. Facts 4 The offences occurred at a property outside Bourke on the night of 27 January 2006 and the small hours of the following morning. Put briefly, the three applicants and another offender, Leon Smith, drove to the property in Smith's car. Bernard Morris remained in the car, while the other offenders broke into two residences on the property occupied by people who were employed there. Snelson had found out the previous day that those occupants would not be there. A large amount of property was taken from both residences, including electrical items, computer equipment, tools, cameras, DVDs, compact discs, food and alcohol. The total value of these items was not disclosed but must have been considerable. One of the items was a GPS computer used for agricultural purposes, itself valued at $50,000. It was this conduct which gave rise to the two charges of aggravated break, enter and steal, the circumstance of aggravation being that each applicant was in company. 5 The amount of the property stolen was such that the offenders were unable to fit it into Smith's car. They removed two vehicles in sheds on the property, a Toyota Hilux utility and a Toyota Corolla sedan, and loaded some of the property into them. They drove all three vehicles back towards Bourke, but abandoned the Hilux utility on the way and transferred the property in it to the Corolla sedan. They then drove to Smith's home. There the stolen property was divided between them, although Bernard Morris received none of it. They drove around the town for some hours before Snelson and Bruce Morris went home. It was their use of the Hilux utility and Corolla sedan which led to the two charges of take and drive conveyance (deemed larceny under s154A of the Crimes Act) on the form 1 in each case. 6 Later, in the early hours of 28 January 2006, Bernard Morris returned to the property with four juvenile offenders. They travelled there in the stolen Toyota Corolla. They went to one of the residences from which property had previously been stolen, entering through a door which had been left open. They stole property of lesser value, comprising some household items, some food and some DVDs. This led to the charge against him of aggravated enter dwelling with intent to steal, the circumstance of aggravation again being that he was in company. 7 A good deal of the stolen property was later recovered, including the valuable GPS device. However, the property which was not recovered included a number of items which appear to have been of significant value. The residences were observed by police to have been ransacked and vandalised, with insulting slogans sprayed or painted on the walls. The sentencing judge was not satisfied that this had been perpetrated by any of the offenders with whom he was dealing, but he found that they were responsible for it to the extent that they had left the houses open, so as to be vulnerable to conduct of that kind by others. 8 As noted above, the circumstance of aggravation for the charges under s112 and s111 of the Crimes Act was that each of the offenders was in the company of the others. That circumstance of aggravation is directed both to the danger of confrontation with an occupant of the premises, such a confrontation being more intimidating by two or more offenders than by one, and to the encouragement of each of the offenders in committing the crime afforded by their acting in combination. Although concerned with a very different situation, guidance may be found in the judgment of Kirby J, with whom Heydon JA and Greg James J agreed, in R v Button & Griffen [2002] NSWCCA 159, 54 NSWLR 455, a case dealing with being in company as a circumstance of aggravation of sexual assault under s61J (2)(c) of the Crimes Act. After reviewing a number of authorities, Kirby J said at [125]: …. The test is the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission. His Honour also said at [120]: The perspective of the victim … is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company', even if the victim was unaware of the other person. 9 Here, it was known that both residences would be unoccupied. To that extent, the circumstance of aggravation does not carry the weight that it would in most cases. His Honour appears to have approached the matter in this way, noting that the offenders "were not going to have even the slightest possibility of confronting people and frightening the life out of them". 10 His Honour concluded that the offences were below the mid-range of objective gravity. He proceeded to sentence on the basis that the offenders did not steal the property to enrich themselves, noting that a good deal of it was recovered and some had been thrown away. He also accepted that the offences were not "a sort of professional hit", that the offenders were not "part of a gang of thieves", and that they did not have access to a "professional receiver" through whom they might have disposed of the goods. He found the episode to be "more suggestive" of young men "at a complete loose end, deciding that they would break into a place and steal everything just for the fun of it and then roar around the town in a stolen car …". Subjective cases 11 The three applicants (and the other offender, Smith) are all young Aboriginal men. In different ways, all of them had a deprived upbringing of the kind commonly encountered among Aboriginal people in the north-west of New South Wales. His Honour took into account the factors bearing upon sentence of people from that background identified by Wood J (as he then was) in the familiar case of R v Fernando (1992) 76 A Crim R 58, at 62-3. At the time of the offences Bernard Morris was twenty years old, Bruce Morris was nineteen, and Snelson was twenty-two. Bernard and Bruce Morris are both now twenty-two, and Snelson is twenty-four. 12 Bernard Morris and Snelson had criminal histories, comprising a variety of offences dealt with in the Children's Court and the Local Court at Bourke. Neither of them had previously served a custodial term. Bernard Morris' record includes two offences of being carried in a conveyance without the owner's consent. Snelson's is largely for driving offences, although some of them are serious offences of that kind. Bernard Morris was in the last months of a bond for several offences, including one of being carried in a conveyance, at the time of the present offences. At that same time, Snelson was subject to two bonds in respect of offences of driving while disqualified. 13 Bruce Morris had only one previous conviction, having been dealt with at Bourke Local Court for an offence of an entirely different nature. He also was on a bond in respect of that matter at the time of these offences, although in the final months of it. His Honour saw him as having "virtually no criminal history" and treated him on the basis that he had none. 14 Each of the applicants left school before completing year ten. All three had a history of abuse of drugs and alcohol, although Bruce Morris ceased using both late in 2006, after his arrest for these offences. Bernard Morris and Snelson each had a somewhat sporadic history of unskilled employment. Bruce Morris' employment had been more stable and responsible. All three had been involved in worthwhile community work for the assistance of Aboriginal children and young people. All of them had been in de-facto relationships and were the fathers of children. 15 Bernard Morris was the first to be arrested and he spent about two months in custody before being released on bail. In his case, his Honour backdated the sentences on the charges of aggravated break, enter and steal to take account of that period and a period during which he had been remanded in custody for sentence. The other two applicants were granted bail upon their arrest, and their sentences were backdated to the day upon which they also were remanded in custody. All three had pleaded guilty in the Local Court. In an electronically recorded interview, Bernard Morris had admitted his own involvement in all the offences to which he pleaded guilty and implicated his co-offenders, a matter to which I shall return. Remarks on sentence 16 His Honour made no distinction between the roles of the four offenders in the aggravated break, enter and steal offences. He passed concurrent sentences for those two offences in each case, on the basis that they comprised one episode of criminality. Both Snelson and Smith were sentenced to imprisonment for 4 years and 8 months with a non-parole period of 2½ years. Bernard Morris was sentenced to a slightly lesser term for those offences, 4 years with a non parole period of 2½ years, but the fixed term of 12 months for the additional offence under s111(2) of the Crimes Act was aggregated upon that non-parole period. 17 The measure of leniency extended to Bruce Morris, who was sentenced to 4 years with a non-parole period of 2 years, was the result of the fact that he effectively had no criminal record and, for that reason, was seen by his Honour to have better prospects of rehabilitation than the other offenders. That said, his Honour said that those other offenders had to be given "some hope". 18 In his remarks his Honour referred to the offenders' pleas of guilty only as a reason for departing from the standard non-parole period for the aggravated break, enter and steal offences. Otherwise, he said nothing about their significance, although he referred to them twice in the course of submissions on sentence. When first hearing submissions, he expressed the view that the pleas entitled the offenders to a twenty-five percent discount. The proceedings were adjourned for sentence, and during some brief discussion with counsel on the adjourned date he observed that the offenders had pleaded guilty at committal. However, he referred to neither of those matters in his reasons. 19 In each case the non-parole period for the s112(2) offences is less than the statutory proportion, and at the end of his remarks his Honour said that he had found special circumstances because of the offenders' youth. The applications 20 It must be said that his Honour appears to have approached this matter in a practical and humane way, mindful of the seriousness of the offences and their impact upon the victims, but also recognising the youth and social disadvantage of the offenders and the need to foster their rehabilitation. Nevertheless, counsel for the applicants have identified several deficiencies in his Honour's reasons for sentence which should lead this Court to consider whether it should intervene in each case. The Crown prosecutor before us, properly and realistically, acknowledged those deficiencies. However, he argued that the sentences are moderate and that we would not find that lesser sentences are warranted or, at least, would find very limited scope for intervention. Pleas of Guilty 21 Counsel for all the applicants raised his Honour's failure in his remarks to explain how the pleas of guilty had been taken into account. From his exchanges with counsel in the course of submissions, it appears that he intended to extend leniency to the offenders because of them. Nevertheless, it was encumbent upon his Honour expressly to state that those pleas had been taken into account and, while not mandatory, it was desirable for him to have quantified the reduction of sentence they had earned: R v Thomson & Houlton (2000) 49 NSWLR 383, per Spigelman CJ at [160]. As the Chief Justice had occasion to observe some years later, part of the rationale for providing a guideline in that case was "the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of the guilty plea were in fact made available to accused": R v Lawrence [2005] NSWCCA 91 at [15]. Such an approach, of course, is consonant with s21A(3)(k) and s22 of the Crimes (Sentencing Procedure) Act, enshrining common law principles about the significance of a plea of guilty. 22 In Lawrence, this Court dismissed a ground of appeal that a sentencing judge had not referred in his remarks to the fact that he had taken into account a plea of guilty, and had not quantified its utilitarian value: see the judgment of Spigelman CJ at [11] – [15]. The Chief Justice, with whom the other members of the Court agreed, noted the experience of that sentencing judge and concluded that he had not failed to take the plea into account and to give it appropriate weight. His Honour reached that conclusion because of the length of the sentence which had been passed, 2 years and 3 months. That rather unusual figure could be arrived at by reducing a sentence of 3 years by twenty-five percent. The Chief Justice thought it likely that this had been the process of reasoning of the sentencing judge, albeit unexpressed. 23 The Crown Prosecutor before us did not rely upon this aspect of the decision in Lawrence. Despite the undoubted experience of the present sentencing judge, the length of the sentences which he passed cannot be explained in the same way. For this purpose, the 12 month fixed term passed upon Bernard Morris for the s111 offence can be put to one side. If the sentence of 4 years imprisonment for the s112 offences passed upon Bernard and Bruce Morris had been the product of a twenty-five percent discount, the starting point would have been 5 years and 4 months. In Snelson's case, for the sentence of 4 years and 8 months the starting point would have been roughly 6 years and 3 months. These rather ungainly figures lead one to question whether the sentences were the result of a discounting process. It is unlikely that his Honour overlooked the pleas of guilty, but what weight he afforded to them is unclear. Bernard Morris 24 Two matters were raised in the case of Bernard Morris only, the first of them allied to the issue just dealt with. Reference has been made earlier to the fact that that applicant had implicated his co-offenders in a recorded interview with police. In an earlier interview at the time of his arrest, he had denied involvement in the offences. It was in a second interview, conducted about a fortnight later, that he admitted his conduct and described his co-offenders' role in the offences. He also provided a statement indicating his willingness to give evidence to that effect. 25 Bruce Morris, Snelson and Smith were arrested a few months later, and each declined to be interviewed. Counsel for Bernard Morris in this Court submitted that we should infer that it was his client's co-operation with police which led to their pleas of guilty. The Crown Prosecutor did not wish to be heard to the contrary, acknowledging that that inference is fairly open. The practical significance of his implicating the juvenile co-offenders in the offence of aggravated enter dwelling with intent to steal is not apparent from the material before us. 26 Clearly, this evidence established that Bernard Morris had assisted law enforcement authorities, and brought into play s23 of the Crimes (Sentencing Procedure) Act. However, although his Honour referred to that second interview in his remarks, he did not touch upon the issue of assistance to the authorities and made no evaluation of this applicant's conduct in that respect. It was a matter calling for consideration of whether he was entitled to additional leniency. In accordance with a line of authority in this Court, it would have been appropriate and desirable for his Honour to have expressed a combined discount of sentence for the plea of guilty and the assistance: see, for example, SZ v R (2006) 168 A Crim R 249, per Buddin J at [42] – [45]. That said, the discount could not have been such as to lead to a sentence "unreasonably disproportionate to the nature and circumstances of the offence": s23(3). It is for that reason that the Crown Prosecutor submitted that we would have little room to move if we were minded to intervene. 27 The second matter is the effective non-parole period which Bernard Morris would have to serve. The effect of the accumulation of sentence in his case, as noted, is an aggregate sentence of imprisonment for 4 years with a non-parole period of 3½ years, leaving a period of parole eligibility of only 6 months. The disproportion is obvious and, given that his Honour intended to afford all the offenders a finding of special circumstances, this cannot be the effect which he intended. Apart from this applicant's subjective case, the fact of accumulation was itself a special circumstance warranting an adjustment of the non-parole period for the more serious offences. The Crown Prosecutor accepted that we must intervene to remedy this situation, although he submitted that we should do no more than reduce the fixed term for the lesser offence, or alter its commencement date, so as to produce an effective non-parole period of 3 years. In that event, the overall sentence would preserve the statutory proportion. Relativity of sentences 28 There was little difference between the sentences passed upon the three applicants and the fourth offender, Smith for the aggravated break and enter offences. It was contended for each of the applicants that there should have been a greater distinction in sentence because of his role in those offences or his subjective case, or both. 29 For this purpose, it is necessary to refer briefly to Smith's antecedents. He is the oldest of the offenders, being twenty-three years old at the time of the offence and now twenty-six. He had the most extensive criminal record of the four. In the Children's Court and Local Court at Bourke he had been dealt with for various offences, including offences of violence and serious driving offences. Unlike any of the others, he had been sentenced on several occasions to short full-time custodial terms. As previously observed, he also had a deprived upbringing. He left school at Year 9, and had abused alcohol and illicit drugs. He had been employed only once, and then for no more than a few months. Unlike the applicants, he had not been involved in community work. A negative pre-sentence report would not have inspired confidence in his prospects of rehabilitation. 30 Counsel for Bernard Morris pointed to his client's limited role in the offences. His account to police, unchallenged by the Crown, was that he was not involved in planning them and that, indeed, he did not know that they were to be committed until shortly before their arrival at the property. As I have said, he remained in the car. He did not enter the premises or remove any of the property, and he did not later receive any of it. 31 Senior counsel for Bruce Morris observed that he was the youngest of the four offenders, being nineteen years old at the time of the offence. He had the most favourable subjective case and the best prospects of rehabilitation. Senior counsel argued that his role in the offences was less than that of Snelson, who had told the others that the premises would be unoccupied and was described by his Honour as "the originator" of the criminal escapade. 32 Snelson's sentence was identical to that of Smith. Counsel for Snelson acknowledged that, unlike Smith, his client had been subject to conditional liberty at the time of the offences. Nevertheless, he relied upon the fact that Smith had a significantly more serious criminal history. 33 The Crown prosecutor in this Court acknowledged that these matters could have provided the basis for greater differentiation in the sentences for each of the applicants and Smith. Yet again, however, he argued that we have little or no scope to intervene. Intervention? 34 It is clear that, for one reason or another, the process of sentencing of each of the applicants has miscarried. The question remains whether in each case any lesser sentence is warranted: s6(3) of the Criminal Appeal Act. In deciding that question, it is necessary to have regard to affidavit evidence which we received attesting to the applicants' personal circumstances and pursuit of rehabilitation since being sentenced: Douar v R [2005] NSWCCA 455, 159 A Crim R 154. Obviously, there must be some adjustment to Bernard Morris' effective non-parole period. Otherwise, however, the Crown prosecutor's primary submission that in each case no lesser sentence is warranted is persuasive. 35 It is not to be forgotten that, in addition to the charges for which each applicant stood for sentence, there were further offences on a form 1 to be taken into account. Making all due allowance for their pleas of guilty, their subjective cases and the additional material on affidavit, any significant reduction of the sentences passed upon Bruce Morris and Snelson would result in sentences which are inadequate. Likewise, any significant reduction of their non-parole periods would fail to reflect their criminality. The same is true of the concurrent sentences passed upon Bernard Morris for the charges of aggravated break, enter and steal, despite the additional factor of his confession and his implication of his co-offenders. The fixed term of 12 months imprisonment imposed upon him for the offence of aggravated enter dwelling with intent is lenient, and sufficiently takes account of his plea of guilty and assistance to the authorities in respect of that offence. 36 Nor is intervention by this Court warranted on the basis of differences between the four offenders' level of involvement in the offences or in their subjective cases. Again, a significant reduction of any of the sentences for that reason would result in an inadequate sentence. In any event, Bernard Morris' lesser involvement in the major offences and his assistance to the authorities are counterbalanced by the significantly more favourable subjective case of Bruce Morris, upon whom the same head sentence was imposed for those offences. Moreover, it was inevitable that Bernard Morris be required to serve some further time before being eligible to be released on parole because of his additional offence. The fact that Snelson was the instigator of the major offences is not of such significance that his objective culpability should be distinguished from that of Bruce Morris or of Smith. Nor is there any relevant distinction between Snelson's criminal history and that of Smith, given that Snelson was subject to conditional liberty at the time of these offences. 37 It remains, then, to restructure Bernard Morris' sentences so as to preserve the benefit of His Honour's finding of special circumstances in his case. This should be achieved by directing the 12 months fixed term for the aggravated enter dwelling with intent to commence 1 year and 9 months after the commencement date of the sentences for the major charges. This would add a custodial component of 3 months to the non-parole period of 2 ½ years fixed in respect of those charges. The result would be an overall sentence of imprisonment for 4 years with a non-parole period of 2 years and 9 months. Orders 38 I would propose the following orders, a) in the cases of Bruce Morris and James Snelson, leave to appeal is granted but the appeal is dismissed. b) in the case of Bernard Morris, leave to appeal is granted and the appeal is allowed, albeit to a limited extent. The sentences passed on the charges of aggravated break, enter and steal are confirmed, noting their commencement date of 22 January 2007. The fixed term of imprisonment for 12 months on the charge of aggravated enter dwelling with intent to steal is also confirmed, but it is to commence on 22 October 2008. That sentence will expire on 21 October 2009, on which date he will be eligible for release on parole. 39 PRICE J: I agree with Hidden J. ********** 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.