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Court of Criminal Appeal 19 February 2001

R v Morgan

[2001] NSWCCA 104

Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE ROBBERY IN COMPANY PLANNED CRIME JEWELLERY STORE CONSIDERABLE LOOT UNRECOVERED HIGH DEGREE OF SERIOUSNESS

Citation: R v Morgan [2001] NSWCCA 104
Court: New South Wales Court of Criminal Appeal
Date: 19 February 2001
Judge(s): Grove J; Hulme J

Background

The applicant was convicted by jury in the Sydney District Court of robbery in company, following a planned raid on Percy Marks Jewellers on 23 September 1996. A group of men arrived at the store in a stolen vehicle, forced entry using a sledgehammer, and took jewellery valued at more than half a million dollars. Police who happened to be nearby attended the scene, shots were fired, and the applicant, who was driving the stolen vehicle while disqualified, sustained a wound before the robbers abandoned the car.

The applicant was the only person arrested and charged in connection with the robbery. The jury acquitted him of the more serious charge of robbery in company whilst armed with a dangerous weapon, convicting him instead of the lesser alternative of robbery in company. A charge of stealing the motor vehicle and a Form 1 matter of driving whilst disqualified were also dealt with at sentencing.

Howie DCJ sentenced the applicant to a total term of seven years and one month, comprising a minimum term of four years and one month and an additional term of three years. The applicant, who appeared for himself before the Court of Criminal Appeal, sought to have the sentence reduced, citing the conditions of his maximum-security custody and matters he perceived as connected to his Aboriginality.

  • Whether the sentence imposed by the District Court was excessive and warranted intervention by the Court of Criminal Appeal.
  • Whether the sentencing judge had made any error of law or misapprehended any fact that would enliven the appellate court's jurisdiction.
  • Whether the applicant's personal circumstances, including his Aboriginality and the conditions of his custody, provided a basis for the Court of Criminal Appeal to reduce the sentence.

Decision

The Court of Criminal Appeal emphasised that it is a court of error, not a court of general review. Its jurisdiction to intervene arises only where a miscarriage has occurred in the court below, whether through an error of law or a misapprehension of fact. No such error was identified here, and the sentencing judge's exercise of discretion was found to be well within the acceptable range given the high seriousness of the offence.

Grove J acknowledged the applicant's submissions about harsh custody conditions and expressed personal sympathy, but made clear those matters could not be addressed on appeal in the absence of a proper basis for intervention. His Honour also noted that the applicant's Aboriginality was a relevant factor to be taken into account in favour of leniency, though the weight of that factor necessarily diminishes as the seriousness of the offence increases.

Hulme J added that the sentence of approximately eight and a half years was, if anything, lenient. The statutory maximum for the offence was twenty years, and a robbery yielding more than half a million dollars was a very serious matter. His Honour noted the applicant's poor prior record and observed that the sentence was not excessive when measured against the available range.

Orders Made

  • Leave to appeal against severity of sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that its function is to correct error, not to conduct a general review of sentence. Hardship experienced during custody does not, without more, provide a basis for appellate intervention.
  • An offender's Aboriginal background is a relevant circumstance that a sentencing court should take into account in favour of leniency, but the weight given to that factor varies with the seriousness of the offence and other circumstances.
  • In dismissing the appeal, the Court treated a planned commercial robbery yielding jewellery worth over half a million dollars as an offence of very high seriousness, particularly where the crime involved multiple offenders, specialised equipment, and a stolen getaway vehicle.
  • No error of law or misapprehension of fact was established against the sentencing judge, and the total sentence of seven years and one month was found to sit comfortably within the proper exercise of sentencing discretion.
  • Hulme J's remarks indicate that, on the facts, the sentence could reasonably have been heavier, given the scale of the robbery and the applicant's prior record.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act (NSW) (Form 1 procedure for taking additional matters into account on sentence)

Cases:
- No cases were cited in the judgment.