Citation: R v Morgan [2000] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 24 March 2000
Judge(s): Abadee J; James J
Background
The applicant pleaded guilty in the District Court to two charges of robbery in company, committed on 27 March 1997 and 17 March 1998 respectively. The sentencing judge also took into account several related offences, including driving while disqualified and stealing a motor vehicle used in the 1998 robbery. The applicant was sentenced to a total effective term involving cumulative sentences, with the minimum term of the second sentence commencing after the minimum term of the first.
Two co-offenders, Pearce and Cakau, were sentenced on the same day for their roles in the 1998 robbery. The sentencing judge expressly found that the objective circumstances of all three were the same, and declined to draw distinctions based on the applicant's role as a lookout rather than entering the bank, or on Pearce's role as the driver during the subsequent police chase.
The applicant sought leave to appeal against his sentences, arguing they were excessive in light of the sentences imposed on his co-offenders and because an offence of escape, which had at one stage been charged, was not ultimately included in the matters for sentencing yet no corresponding adjustment was made to the sentences.
Legal Issues
- Whether the sentencing judge erred by failing to make any downward adjustment to the sentence after removing the escape offence from the matters taken into account
- Whether the sentence imposed on the applicant for the 1998 robbery was disproportionate to the sentence imposed on co-offender Pearce, giving rise to a legitimate sense of grievance
- Whether re-sentencing was required, and if so, what sentences were appropriate
Decision
On the first ground, the Court of Criminal Appeal accepted that the sentencing judge had originally contemplated the escape offence as a relevant factor, and that when it was removed from consideration, no corresponding reduction was made to the sentences. The Court found this constituted an error warranting appellate intervention.
On the question of parity, the Court noted that Pearce received a minimum term of three years three months for the 1998 robbery, while the applicant received a minimum term of three years six months for the same offence. The sentencing judge had expressly found the objective circumstances of the applicant and Pearce to be the same. The Court concluded that, while the applicant's subjective circumstances were not more favourable than Pearce's, they were not less favourable either. The three-month difference in minimum terms was found to be apt to give rise to a legitimate sense of grievance in the applicant.
The Court proceeded to re-sentence the applicant, observing that the original sentences were otherwise appropriate and required only slight variation. Special circumstances, as found by the sentencing judge, were adopted in the re-sentencing. The sentences were adjusted to align the applicant's minimum term for the 1998 robbery with that imposed on Pearce, and the commencement date of the second sentence was adjusted accordingly.
Orders Made
- Leave to appeal granted
- Appeal against sentence allowed
- Sentences imposed on 18 June 1999 quashed
- On the charge of robbery in company on 17 March 1998: penal servitude for five years three months, comprising a minimum term of three years three months commencing 17 March 1998 and expiring 16 June 2001, and an additional term of two years
- On the charge of robbery in company on 27 March 1997: penal servitude for four years, comprising a minimum term of one and a half years commencing 17 June 2001 and expiring 16 December 2002, and an additional term of two and a half years
- Earliest date of eligibility for release on parole: 17 December 2002
Key Takeaways
- A sentencing court's failure to make any adjustment to a sentence after removing an offence from the matters taken into account can constitute a sentencing error warranting appellate intervention.
- The parity principle requires that co-offenders found to be in materially the same objective position should not receive sentences that differ in a way capable of generating a legitimate sense of grievance, even where the difference is relatively small.
- In re-sentencing following a successful appeal, the Court of Criminal Appeal confirmed it was appropriate to vary the original sentences only to the extent required to correct the identified errors, leaving other aspects of the sentencing approach undisturbed.
- The guidelines judgment in R v Henry (1999) 46 NSWLR 346 informed the assessment of objective gravity for armed robbery offences, including consideration of whether weapons were used, the degree of planning, and the vulnerability of victims.
- Where a sentencing judge expressly declines to distinguish between co-offenders on objective grounds, that finding bears directly on whether a disparity in the resulting sentences can be justified.
Legislation and Cases Referenced
Cases:
- R v Henry (1999) 46 NSWLR 346 (guidelines judgment on sentencing for armed robbery, Court of Criminal Appeal)
Note: No legislation or additional cases were cited in the portion of the judgment provided.