R v Morris [2008] NSWCCA 115

New South Wales Court of Criminal Appeal

CITATION: R v Morris [2008] NSWCCA 115

HEARING DATE(S): 23/05/2008

JUDGMENT DATE: 4 June 2008

JUDGMENT OF: James J at 1; Hoeben J at 2; Hall J at 67

DECISION: Appeal is dismissed.

CATCHWORDS: Crown appeal - whether sentences manifestly inadequate - effect of delay on sentence - need for sentencing judge to take into account pre-existing custody when considering totality - discount for plea of guilty.

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

Dinsdale v The Queen [2000] HCA 54; (2002) CLR 321 Lowndes v The Queen (1999) 195 CLR 665 R v Fahda [1999] NSWCCA 267 CASES CITED : R v Henry (1999) 46 NSWLR 346 R v Ponfield & Ors (1999) 48 NSWLR 327 R v Todd (1982) 2 NSWLR 517 Wong v R (2002) 137 A Crim R 120

PARTIES: Regina - Applicant Stephen Jodey Morris - Respondent

FILE NUMBER(S): CCA 2008/322

COUNSEL: Mr P Ingram - Applicant Crown Ms A Francis - Respondent

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Applicant Crown S O'Connor, Legal Aid Commission - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0365

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 14/12/2007

IN THE COURT OF CRIMINAL APPEAL 2008/322

JAMES J HOEBEN J HALL J

Wednesday, 4 June 2008 R v MORRIS, Stephen Jodey Judgment 1 JAMES J: I agree with Hoeben J. 2 HOEBEN J: Offences and sentence On 20 August 2007 the respondent pleaded guilty to two counts on indictment: Count 1: That on 25 December 2001 at Woolloomooloo the respondent broke and entered a dwelling and therein committed a serious indictable offence, namely the armed robbery of Mrs EV, in circumstances of aggravation namely knowing that there were persons within that dwelling, contrary to s 112(2) of the Crimes Act 1900. The maximum penalty is imprisonment for 20 years. 3 At the request of the respondent, the sentencing judge took into account two offences on Form 1 documents. The first offence was the armed robbery of Ms DV on 25 December 2001 at Woolloomooloo during the commission of the offence in count 1. The second offence was break enter and steal from a dwelling in Eastwood on 21 October 2005 during which a ring valued at $1000 was stolen. 4 Count 2: That on 23 September 2005 at Killara the respondent broke and entered a dwelling and while there stole certain personal items the property of KM contrary to s 112(1) of the Crimes Act 1900. The maximum penalty is imprisonment for 14 years. 5 At the request of the respondent, the sentencing judge took into account two offences on a Form 1. The first offence was break enter and steal from a dwelling in Newtown on 17 October 2005 in which property valued at $1,970 was stolen. The second offence was break enter and steal from a dwelling in Haberfield on 18 October 2005 in which property valued at $300 was stolen. 6 Goldring DCJ sentenced the respondent in respect of these matters on 14 December 2007. On count 2 (taking into account the two offences on Form 1) his Honour imposed a term of imprisonment with a non-parole period of 2 years commencing 1 November 2005 and expiring on 31 October 2007 with a balance of term of 1 year expiring on 31 October 2008. On count 1 (taking into account the offences on Form 1) imprisonment with a non-parole period of 3 years and 6 months commencing 1 May 2006 and expiring on 31 October 2009 with a balance of term of 3 years expiring on 31 October 2012. 7 The aggregate term of the sentences was a non-parole period of 4 years with a balance of term of 3 years. 8 The Crown has appealed from these sentences on the basis that they are manifestly inadequate.