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Court of Criminal Appeal 6 March 2006

R v Morgan Joseph Lay

[2006] NSWCCA 45

Theft & property
CROWN APPEAL ISSUES OF PARITY ROLE OF CROWN AT SENTENCE HEARING DELAY IN FINALISING PROCEEDINGS

Citation: R v Morgan Joseph Lay [2006] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 6 March 2006
Judges: James J, Buddin J, Hall J

Background

The respondent was arrested in January 2004 and faced 33 charges arising from an extensive series of property offences committed largely in company with a co-offender. Following guilty pleas entered across two indictments, he stood for sentence on 18 counts of break, enter and steal, two counts of attempted break, enter and steal, and one count of larceny, with a further 12 matters taken into account on a Form 1 document. The maximum penalty for each break, enter and steal offence was 14 years imprisonment.

The District Court imposed sentences producing a total effective term of 4 years and 3 months with a non-parole period of 2 years and 9 months. The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act 1912, contending those sentences were manifestly inadequate.

A co-offender, Ms Knight, had been involved in substantially the same offences and received an overall effective sentence of 4 years and 6 months with a non-parole period of 3 years. The Court of Criminal Appeal had previously dismissed her appeal, expressly rejecting a claim that her sentences were manifestly excessive.

  • Whether the total effective sentence imposed in the District Court was manifestly inadequate for the volume and seriousness of the offending
  • How the principles in Pearce v The Queen (1998) 194 CLR 610, governing the accumulation of sentences for multiple offences, applied to the sentencing exercise
  • Whether parity considerations arising from the sentences imposed on co-offender Ms Knight constrained the resentencing of the respondent
  • What weight should be given to the delay in finalising proceedings when resentencing following a successful Crown appeal
  • The proper role of the Crown at a sentence hearing

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentences imposed in the District Court were inadequate. The sentencing judge had not correctly applied the principles in Pearce v The Queen, which require that a court sentencing for multiple offences give separate and individual consideration to each offence, ensuring each sentence reflects the individual criminality involved. The subsumption of 15 counts into fixed terms of only 9 months each was identified as a significant error.

The parity argument, based on the sentences received by Ms Knight, did not prevent an increase. The Court noted that while the respondent and Ms Knight offended together in most instances, the comparison had to account for any relevant differences in their circumstances and culpability. The fact that Ms Knight's appeal had been dismissed, with no finding of manifest excess, was directly relevant to assessing the adequacy of the respondent's lower sentences.

The Court acknowledged two matters that operated to constrain the extent of its intervention on resentencing. First, the proceedings had been affected by significant delay, which had caused the respondent anxiety and hampered his prison classification. Second, appropriate restraint must be exercised when resentencing following a successful Crown appeal. The Court found that these factors justified imposing sentences below what the circumstances of the case would otherwise demand.

A finding of special circumstances (within the meaning of the sentencing legislation, permitting an extended parole period beyond the standard one-third ratio) was maintained, as the sentencing judge had found.

Orders Made

  • Crown appeal allowed
  • Sentences imposed in the District Court quashed
  • In respect of count 10 on the second indictment (with 12 Form 1 matters taken into account): non-parole period of 2 years and 6 months, total term of 3 years and 6 months, commencing 21 January 2004
  • In respect of counts 17 and 30 on the first indictment: non-parole period of 18 months, total term of 2 years and 6 months, commencing 21 April 2005
  • In respect of counts 1, 2 and 3 on the second indictment: non-parole period of 18 months, total term of 2 years and 6 months, commencing 21 July 2005
  • In respect of all remaining counts (15 matters across both indictments): non-parole period of 18 months, total term of 3 years and 6 months, commencing 21 January 2006
  • Total effective non-parole period of 3 years and 6 months; total effective sentence of 5 years and 6 months
  • Respondent eligible for parole on 20 July 2007

Key Takeaways

  • Pearce v The Queen requires that each offence in a multiple-offence sentencing exercise receive individual attention, and that sentences should not simply be subsumed within each other in a way that fails to reflect the true extent of the criminality.
  • Parity with a co-offender's sentence does not automatically cap the sentence on a Crown appeal where the co-offender's sentence has itself been found not to be manifestly excessive.
  • Delay in finalising proceedings, where it has caused an offender genuine anxiety or prejudice within the prison system, is a recognised mitigating factor that can reduce the extent of intervention on resentencing.
  • Appropriate restraint applies when a court of appeal resentences following a successful Crown appeal, meaning the substituted sentence may be lower than what the circumstances might otherwise call for.
  • The Court of Criminal Appeal confirmed that an overall effective sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months was appropriate for 21 offences of this character, after accounting for delay and the restraint principle.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 117, 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1996-97) 189 CLR 295
- R v Knight [2005] NSWCCA 253
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Weldon & Carberry (2002) 136 A Crim R 55
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Eustice [2004] NSWCCA 14
- R v Wall [2002] NSWCCA 42
- R v Chad (CCA(NSW), 13 May 1998, unreported)