Morgan v R [2014] NSWCCA 284

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Morgan v R [2014] NSWCCA 284 Hearing dates: 27/08/2014 Decision date: 05 December 2014 Before: Leeming JA at [1]; Adams J at [2]; Fullerton J at [3] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - break, enter and steal - possess child abuse material - whether sentence is manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), ss 91H(2), 112(1)(a), 113, 308E Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 Danuca v R [2005] NSWCCA 45 Hernandez v R [2013] NSWCCA 51 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 Lewins v R [2007] NSWCCA 189 Pearce v R [1998] HCA 57; 194 CLR 610 R v Johnson [1999] NSWCCA 431 R v Lay [2006] NSWCCA 45 Watts v R [2007] NSWCCA 153 Category: Principal judgment Parties: Dane Ronald Morgan (Applicant) The Crown (Respondent) Representation: Counsel: W Hunt (Applicant) S Dowling SC (Crown) Solicitors: Proctor & Associates (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/52557; 2012/58089 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-05-15 00:00:00 Before: Sides DCJ File Number(s): 2012/52557; 2012/58089

Judgment 1LEEMING JA: I agree with Fullerton J. 2ADAMS J: I agree with Fullerton J. 3FULLERTON J: The applicant seeks leave to appeal against an aggregate sentence imposed in the District Court in May 2013 pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) after he adhered to pleas of guilty entered in the Local Court to nine counts of break, enter and steal laid contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). Each offence attracted a maximum penalty of 14 years imprisonment. 4In the appointment of the indicative sentence on the first count, sixteen further offences were taken into account on a Form 1. They included: (a)thirteen further offences of break, enter and steal; (b)one offence of break and enter with intent; (c)one offence of possession of 0.44 grams of methylamphetamine; and (d)one offence of knowingly dealing with the proceeds of crime. 5The nine break, enter and steal offences on the indictment, and the thirteen further offences on the Form 1, were committed between December 2011 and February 2012 when the applicant broke into private homes across suburban Sydney and stole cash, jewellery, laptop computers, phones, cameras, Xboxes, and iPods. None of the offences was committed in company. Each involved preplanning to some degree. 6The total value of the property stolen in respect of the nine counts on the indictment was estimated at $200,000. The value of the property the subject of the thirteen offences on the Form 1 was estimated at $105,000. 7A significant amount of stolen property was recovered when search warrants were executed on the applicant's arrest. There was no evidence as to the differential between the value of the property stolen and the value of the property recovered. There was also a large quantity of property seized under warrant not identified as stolen property. That property, together with 35 items sold by the applicant at six pawn shops between 29 November 2011 and 17 January 2012, was the subject of the offence of knowingly dealing with the proceeds of crime on the Form 1. 8On the date of the sentence proceedings, the applicant pleaded guilty to one count of possessing child abuse material contrary to s 91H(2) of the Crimes Act on a separate indictment. That offence attracts a maximum penalty of 10 years imprisonment. It was dealt with in the imposition of the aggregate sentence. 9The child abuse material comprised a total of 780 still images and 41 videos found on two computers seized on the applicant's arrest. One of the computers had been stolen on 6 January 2012. An examination of that computer revealed that the applicant had recently accessed a number of the files containing the child abuse material that had been downloaded by him. All but one of the still images on that computer fell within category 1 of the CETS scale and most of the videos within category 1 or 2 of that scale. Category 2 relates to non-penetrative sexual activity between children or masturbation by a child not involving an adult. Of the seven videos in category 4, at least one of 30 minutes in length, all contained explicit, serious and repeated penetrative sexual abuse of children.