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. Factual background 9 In relation to count 1, Mrs EV and her two daughters aged respectively 19 and 5 attended a street party near their home. The 19 year old daughter went home at 12.30am and went to sleep on a sofa in the lounge-room downstairs. Mrs MV and the younger daughter arrived home about 30 minutes later. She and the younger daughter went to bed upstairs. 10 Shortly afterwards Mrs EV heard noises from the downstairs kitchen. She called out several times but received no response. When she went downstairs into the kitchen she saw a cigarette glowing in the dark and a person now known to be the respondent, holding a kitchen knife with a blade about 30 cms long. This knife belonged to Mrs EV and was in the kitchen when he arrived. 11 The respondent walked towards Mrs EV and pointed the knife at her stomach. He said "Don't move, I will get you if you scream. Give me your money and some valuables. Whatever you can, give me, because I need it for my heroin addiction." Mrs EV replied that she had no money because she was a pensioner. 12 The respondent kept pressing her for money and was still pointing the knife at her. They went into the lounge-room where the older daughter was sleeping. The respondent woke the daughter up and held the knife close to her. He demanded money from her. The respondent took the daughter's Nokia mobile phone, which was valued at nearly $1,000. The daughter said "No that's all my life in there" to which the respondent replied "No I'll take this you can have it if you give me money". The respondent then pointed the knife at the daughter and said "Don't move or I'll hurt you. I know you're going to call the police but don't try. If you do nothing I won't hurt you. Come on, we'll go upstairs now". 13 The older daughter gave the respondent three rings and a necklace which she was wearing. 14 Mrs EV and the daughter then went upstairs with the respondent following them, still pointing the knife. The respondent searched drawers in Mrs EV's bedroom, taking her birthstone ring valued at about $2,500. He took $80 from Mrs EV's handbag and a credit card and a key card from the daughter's wallet. He pointed the knife towards the daughter and demanded that she give him her pin number. 15 The respondent then entered the younger daughter's bedroom and took a necklace belonging to her. Mrs EV was afraid that the respondent might hurt the younger daughter. Fortunately, the younger daughter did not wake up. 16 As he was leaving the respondent said to Mrs EV: "I will come back if you try to call the police and tell them what happened and that I have been here". He then ran off, taking the kitchen knife with him. Mrs EV subsequently discovered that CD's worth approximately $500 had also been stolen. 17 The police were called, statements were provided by Mrs EV and her older daughter and descriptions of the respondent were given. Fingerprints were found by the police on various parts of the premises. 18 The police were unsuccessful in matching this fingerprint to an offender. By August 2005, however, the police had available to them a fresh set of fingerprints from the respondent and new technology. A fingerprint match was made at that time. Despite the respondent being identified as the likely offender, he was not charged with the offence in count 1 until 10 October 2006, ie 15 months after the police had the information available to them. 19 The respondent denied the count 1 offence when he was charged. At that time he was also charged with the offence of armed robbery of the older daughter. He was committed for trial for those offences in May 2007. In August 2007 the respondent pleaded guilty to the count 1 offence. The prosecution agreed that the armed robbery of the older daughter would be taken into account on a Form 1. 20 The other Form 1 offence taken into account in relation to count 1 was committed on 21 October 2005, ie at approximately the same time as the two Form 1 offences which were taken into account in relation to the count 2 matter. The break and enter occurred between 8.30am and 1pm, the house was ransacked and a gold ring worth about $1,000 was stolen. The respondent was detected because he left a bloodstained paper towel under a bed in the house. DNA was taken from this and compared with DNA from a buccal sample that the respondent had provided to the police. The respondent was arrested and charged with this offence on 4 October 2007. 21 In relation to count 2, Mrs KM left her home at Killara at about 9.30am on 23 September 2005. Before leaving she ensured that the windows and doors were locked. When she returned about an hour later, she saw that some bags had been tipped over. She also noticed that a glass panel on French doors at the front of the house had been smashed. She inspected the house and observed that drawers in her bedroom had been emptied onto the floor, that cupboards had been opened and that property from the other bedrooms had been thrown on the floor. 22 She contacted the police and it was found that property to the value of $2,000 had been taken. When the police attended they found a fingerprint on a plastic box which had been moved from the bedroom. This was later identified as matching the fingerprints of the respondent. 23 The break enter and steal offences on the Form 1 in relation to count 2 occurred at Haberfield on 17 October 2005 between 2am and 1pm and at Newtown the next day between 8.40am and 3pm. Both were attributed to the respondent because fingerprints obtained at each crime scene were identified as his. 24 By way of further background, the respondent has a long history of break enter and steal offences. He was arrested in June 2002 on matters subsequently dealt with by the Drug Court. On 7 August 2002 he was dealt with by the Drug Court and received a number of concurrent sentences. He failed to complete the Drug Court program and received a term of fulltime imprisonment. On 20 September 2004 he was sentenced to a further fixed term of 1 years imprisonment for a similar offence of break enter and steal. This sentence was due to expire on the same date as the non-parole period for the Drug Court offences, ie 19 September 2005. 25 The respondent was released on parole on 19 September 2005 after serving the non-parole period for the drug related offences and the fixed term for the break enter and steal matter. His Honour noted that the date of this release was after the police had matched his fingerprints with those taken from the house of Mrs EV in relation to the count 1 offence. 26 The respondent was only at liberty from 19 September until 2 November 2005, ie six weeks. In November 2005 he was arrested and charged with an offence of having stolen goods in custody. He was ultimately sentenced to a fixed term of 6 months for the goods in custody offence. It was during this six week period that the respondent committed the count 2 offence and the three offences on the Form 1. On 3 November 2005, the day after his arrest his parole was revoked in relation to the Drug Court offences. It can be seen that except for the six week period between 19 September and 2 November 2005 the respondent had been continuously in custody since June 2002. Remarks on sentence 27 After setting out the history of the offences, his Honour proceeded to analyse their objective seriousness. He concluded that all of the offences were objectively serious. In relation to the break enter and steal offences, his Honour noted that they had occurred during daylight hours when each of the premises was empty. The property stolen was not particularly valuable but was not insubstantial. Each offence was typical of the sort of offences committed by persons with drug addictions. His Honour regarded the offences as significant because of the respondent's long record of similar offences. 28 His Honour considered the count 1 offence to be more serious. It involved the threat of violence and the victims were vulnerable. There were young children in the house. There was, however, no evidence that either this offence or the armed robbery of the older daughter were planned. His Honour found that the picking up of the knife in the kitchen was opportunistic in that the respondent did not bring it with him. 29 His Honour referred to the fact that the offences on the indictment could not be considered in isolation, but that the Form 1 offences also had to be taken into account. 30 His Honour then reviewed the respondent's subjective case. The respondent was 41 at the time of sentencing, having been born on 11 May 1966. He was born in the United Kingdom and grew up in Australia from the age of three. From the age of thirteen he spent time in juvenile institutions. He left home at the age of 15. By 16 he was addicted to amphetamines and by 18 to heroin. When he was 28 he formed a relationship with a woman who gave birth to their son while he was in custody. She died shortly afterwards from a heroin overdose. The son is now 12 and lives with the respondent's mother in Bundaberg, Queensland. 31 In 1996 the respondent was released to parole and moved to Western Australia where he attempted to get a job in the mining industry. There he formed a relationship with a woman, Kerry, and this relationship lasted six years. They have a daughter who was nine at the time of sentencing. When Kerry refused to marry the respondent, he became depressed and began using benzodiazepines. He relapsed into break and enter offences and was returned to prison. Although Kerry waited for him for some time, as of the date of sentence, she had moved to Queensland with the daughter. 32 The respondent gave evidence before his Honour and said that his offences were closely connected to his addictions. None of his attempts at rehabilitation had succeeded completely. In the past he had relapsed into drug use and re-offended rapidly after his release from custody. Nevertheless, his Honour thought there were some prospects for rehabilitation. 33 His Honour had before him a report from Ms Freeman, a forensic psychologist. It was her opinion that for the first time the respondent had developed considerable insight into the reasons for his criminal behaviour and for his addictions. She thought that this was in large measure due to the short term drug and alcohol courses he had completed whilst in custody. 34 In his evidence the respondent said that he had not used heroin since 2005 and that he was now on a methadone program. This had enabled him to think clearly. His Honour noted that on two separate occasions, the respondent had been charged with old offences shortly before he was due to be released on parole. The first time this had happened was in May 2005 and the second was in October 2006 when he was charged with the count 1 matters. 35 His Honour accepted that all of the offences for which he was sentencing the applicant were related to his addiction to amphetamines and heroin. His Honour thought it was likely that the respondent was affected by drugs at the time of the offences. This to some extent explained the matters referred to in count 1 although it did not excuse them. 36 His Honour noted that during the period of his long-term relationship with Kerry, the respondent had managed to remain drug free and had not been charged with any offences during that time. It was as a result of the breakdown in that relationship that he had relapsed into drug abuse and crime. 37 The respondent pleaded guilty to the count 2 matter and Form 1 matters related to count 2 at the first opportunity. In his evidence he said that he had no recollection of the Woolloomooloo offence at the home of Mrs EV. This was why he had sought to defend that matter and the Form 1 robbery matter. He said that these offences were out of character in that he never committed break and enter offences at night, he always checked premises and never broke in if people were at home and he never used a weapon. That evidence was generally consistent with his previous convictions although there were two convictions for break and enter premises at night. 38 His Honour found that the respondent had not pleaded guilty to count 1 at the earliest opportunity. Nevertheless, his Honour thought his plea of guilty did have utilitarian value because witnesses were not required to give distressing evidence about an event which had occurred nearly five years before the respondent was arrested. Ultimately his Honour assessed the discount at 20%. His Honour was satisfied that the respondent's belief that he had not committed the offence in count 1 and the robbery offence on the Form 1 was genuinely held, as was his assertion that he retained no memory of the events. 39 His Honour took into account as a strong mitigating circumstance the delay which had taken place in the laying of charges. His Honour was of the opinion that if the respondent had been charged in a timely way, he would have been sentenced for these matters at the same time as he was for other offences so that the principle of totality may have led to a shorter total sentence. His Honour said that to have old offences dealt with at the present time, rather than at the same time as offences which were similar in nature and seriousness, increased the possibility that the respondent would be required to serve a longer period in custody than would otherwise have been the case. 40 His Honour referred to the statements of principle in R v Todd (1982) 2 NSWLR 517 and specifically adopted the opinion of Simpson J in R v Fahda [1999] NSWCCA 267 and of Adams J in Wong v R (2002) 137 A Crim R 120. Applying those cases his Honour concluded that the principal criterion as to whether delay should be considered as a mitigating factor was hardship to the offender or at least the perception of hardship. His Honour concluded that in this case there was actual as well as perceived hardship. 41 His Honour found that despite the principle of totality there would have to be some accumulation of the sentences. This was because they had occurred at different times and were quite different in nature. His Honour decided to backdate the sentences because of the time which the respondent had already spent in custody. 42 His Honour found special circumstances primarily because of the substantial prospects of rehabilitation which the respondent had. In relation to count 1 his Honour specifically noted that in fixing the head sentence he had regard to the age of the offence. It was his Honour's opinion that the fact that this offence was committed in 2001 meant that the head sentence was considerably less than it would have been had the offence been recent. Appeal and submissions 43 The Crown relied upon one ground of appeal – that the sentence was manifestly inadequate. The Crown approached the appeal by putting forward six contentions. The effect of those contentions was that both individually and with regard to the aggregate of the sentences, they were inadequate. 44 In relation to the sentence for count 1, the Crown submitted that his Honour should have had regard to the guideline judgments in R v Henry (1999) 46 NSWLR 346 and R v Ponfield & Ors (1999) 48 NSWLR 327. This was because the offence in count 1 involved both robbery and a break and enter. The Crown stressed the circumstances of the offence with a weapon being used to terrorise vulnerable victims. 45 The Crown submitted that his Honour's discount for the plea of guilty of 20% disclosed error. This was because the plea was offered only five days before the trial date. 46 The Crown submitted that his Honour had given too much weight to the question of delay. The delay between 25 December 2001 and August 2005 was not the fault of the Crown but due to deficiencies in the technology then available. The Crown accepted that the delay between August 2005 and 10 October 2006 when the respondent was charged was unexplained. Even so, the Crown submitted, the allowance which his Honour made for delay was excessive. 47 The Crown submitted that his Honour had erred when he stated that had the offence in count 1 been dealt with expeditiously, it would have been dealt with at the same time as other offences and would probably have resulted in a relatively modest additional sentence. The Crown pointed out that the aggregate sentence imposed by the Drug Court in 2002 comprised a non-parole period of 3 years and 3 months with a parole period of 1 year. Those sentences were imposed for eight offences of break enter and steal, two offences of disposing of stolen property and one offence each of attempting to break and enter, malicious damage to property, hinder police officer, possession of house breaking implements and goods in custody. The Crown submitted that this aggregate sentence was of itself extremely lenient, having regard to the number of offences and the respondent's poor criminal history. 48 The Crown submitted that given the leniency of the other sentences and the objective seriousness of the offence in count 1, together with the Form 1 matters, a substantial partially cumulative sentence would have been required whenever that offence was dealt with. 49 The Crown made similar submissions in relation to the offence in count 2 with its Form 1 matters. The Crown submitted that there was no delay associated with this offence which of itself was objectively serious. The Crown submitted that his Honour had too little regard to the respondent's long history of break enter and steal offences when imposing the sentence in relation to this matter. 50 The respondent analysed the effect of his Honour's sentences somewhat differently to the Crown. He identified two discrete periods of offending, ie December 2001 (the robbery offences) and September/October 2005 (the break enter and steal offences). After taking into account the concurrency and accumulation of those sentences, the respondent would serve a period of 6 months imprisonment from 1 November 2005 until 1 May 2006 purely referable to the break and enter offence. Thereafter he was required to serve a sentence of imprisonment for 6 years and 6 months for the robbery offence. 51 The respondent emphasised the principle of totality, not only in relation to the sentences actually imposed by his Honour, but having regard to the sentences imposed by other courts. The respondent pointed out that apart from the period of six weeks between 19 September and 2 November 2005, he had been in continuous custody from 20 June 2002 until 14 December 2007, being the date when his Honour imposed these sentences. The sentences imposed by his Honour effectively accumulated upon the 3 years and 3 months imprisonment served by the respondent from 20 June 2002 until 19 September 2005. The respondent had served six weeks of the parole period for part of that sentence when he was returned to custody. 52 The respondent submitted that his Honour was confronted with a difficult application of the principle of totality. His Honour also had to take into account the significant delay in relation to the robbery offence, which was partly explained by advancements in technology and partly unexplained. The regime imposed by his Honour would result in the respondent serving an overall non-parole period of 7 years and 3 months imprisonment with a period on parole of 3 years for a variety of offences. 53 The overall sentence and the discrete sentences, it was submitted, did not represent an affront to the public conscience but rather ensured that the respondent was in prison for a minimum period of 7 years and 3 months for offences which although large in number and serious in nature did not disclose any premeditated violent offending but were essentially offences of drug-related dishonesty. It was submitted that no clear error of principle was identified by the Crown. Consideration 54 It seems to me that there is some force in the Crown's complaint that a 20% discount in relation to count 1 was excessive. I accept that the circumstances were unusual. There was considerable utility in sparing witnesses from having to give evidence and re-open a painful experience which had occurred almost 6 years before. There was his Honour's finding that the respondent genuinely did not remember this offence or the surrounding circumstances . There was also the difficulty associated with the way in which the charges were framed, so as to at least give rise to an argument as to duplicity. The plea of guilty, albeit late, significantly resolved those issues. 55 Even so, absent other considerations, I am of the opinion that while a discount of up to 15% could in the circumstances be justified, 20% was excessive. 56 There is less force in the Crown's challenge to the emphasis which his Honour gave to delay when formulating the sentences. There is no doubt that in some respects the offence on which count 1 was based was stale in that it had not been prosecuted for almost 5 years. It is also clear that the respondent was disadvantaged by the fact that the offence in count 1 was being dealt with 6 years after its occurrence. This is not one of those situations where the delay was due to the actions of the offender in keeping quiet in the hope that his criminality would not be discovered. His Honour found that the respondent genuinely had no recollection of the offence. 57 In these circumstances, it seems to me, that his Honour was justified in reducing the sentence in respect of count 1 which was by far the most serious offence to have regard to that circumstance. It should also be kept in mind that allowing for the 20% discount, his Honour's start point in respect of count 1 was a head sentence of 8 years, which is of itself a not insignificant sentence. 58 While dealing with the question of delay I should say something about the authorities referred to by his Honour on this question and his use of them. His Honour specifically referred to the decisions of this Court in R v Fahda [1999] NSWCCA 267 and R v Wong [2002] NSWCCA 527; 137 A Crim R 120. Both those decisions were by benches made up of two judges. In general, two judge decisions are not referred to for statements of principle unless there is no other authority. These cases are good examples of why that is so. 59 In Fahda what Simpson J said about delay was largely dicta because she went on to say that there were other circumstances in the case. Wong is in fact not even a two judge decision, since Smart AJ did not endorse the remarks of Adams J on the role of delay in dealing with sentencing matters and pointedly refrained from expressing any opinion. 60 The leading decision on delay remains R v Todd (1982) 2 NSWLR 517 and in particular the remarks of Street CJ, to which his Honour did refer. It would have been preferable, however, when referring to Todd for his Honour to have made it clear that some of the important considerations referred to by Street CJ did not exist here, eg the situation where rehabilitation has progressed significantly during the period of delay and where an offender has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on a later occasion. 61 Nevertheless, the decision in Todd does provide support for the approach of his Honour in this case, particularly given its unusual circumstances: "… sentencing for a stale crime, long after the committing of the offence, calls for a considerable measure of understanding and flexibility of approach – the passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." In the circumstances of this case, his Honour was justified in placing considerable weight on delay when sentencing the respondent in respect of count 1. 62 In summary his Honour was confronted with a difficult sentencing problem. He could not disregard the sentences already imposed on the respondent by the Drug Court and the fact that the respondent had been continuously in custody, with only a short break, between June 2002 and December 2007. His Honour had to balance the undoubted objective seriousness of the offences, particularly that in count 1, against the delay which had occurred in the respondent being charged for that matter and then have regard to principles of accumulation and concurrency without also offending the over-arching principle of totality. 63 I am mindful of the restraint which has to be exercised in Crown appeals, particularly when what is under challenge is the exercise of a discretion by the sentencing judge. It is not for this Court to substitute its opinion for that of the sentencing judge. This Court should only interfere where error, either latent or patent, has been clearly shown (Lowndes v The Queen (1999) 195 CLR 665, Dinsdale v The Queen [2000] HCA 54; (2002) CLR 321). 64 Although I am of the opinion that his Honour did err in the discount which he allowed for the respondent's plea of guilty in respect of count 1, the error is not of such a kind as to justify interfering with his Honour's overall sentencing discretion. The effect of the error on the sentence is relatively small and interference with the sentence on that basis would be properly characterised as "tinkering". 65 Accordingly I would decline to intervene in relation to the sentences which his Honour imposed. I am not persuaded that those sentences, both individually and in aggregate, were manifestly inadequate. 66 The order which I propose is that the appeal be dismissed. 67 HALL J: I agree with Hoeben 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.