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District Court 14 December 2007

R v Stephen Jodey Morris

[2007] NSWDC 370

Theft & property
CRIMINAL LAW SENTENCING PLEA OF GUILTY DISCOUNT TIME AT WHICH PLEA ENTERED

Citation: R v Stephen Jodey Morris [2007] NSWDC 370
Court: District Court of New South Wales
Date: 14 December 2007
Judge(s): Goldring DCJ

Background

The offender pleaded guilty on arraignment to one charge of aggravated break and enter and one charge of break, enter and steal. He also asked the court to take into account four additional offences on a Form 1 (a procedural mechanism allowing related offences to be considered when sentencing on the principal charges, without the offender being separately convicted of them).

The most serious offence, Count 1, arose from events on Christmas Eve 2001. The offender broke into a family home in the early hours of Christmas morning, armed himself with a kitchen knife from the kitchen, and confronted a mother and her adult daughter. Over the course of the incident he threatened both women with the knife, demanded money and valuables, followed them through the home, and entered the bedroom of a sleeping five-year-old child. He left with jewellery, cash, bank cards, a mobile phone, and CDs. The offender was not identified and charged in connection with this matter until some years later, after fingerprints recovered at the scene were matched to him following his arrest on unrelated charges in 2005. He initially denied the offences and indicated he would defend them, before ultimately pleading guilty earlier in 2007.

Count 2 related to a separate break and enter offence committed in October 2005, to which the offender had entered an early guilty plea. The Form 1 matters included a further break and enter from the same period and an armed robbery.

  • What discount, if any, should be applied to the sentence for each count in light of the timing of the guilty pleas?
  • How should the court approach sentencing for Count 1, given the significant delay between the 2001 offence and the eventual plea?
  • How should the sentences for the two counts interact, having regard to the principle of totality (the requirement that the overall sentence reflect the total criminality without being crushing)?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the total head sentence.
  • Whether a compulsory drug treatment order was appropriate.

Decision

The court applied a maximum discount of 25 per cent for the guilty plea on Count 2, reflecting that the plea was entered at an early stage. For Count 1, the discount was reduced to 20 per cent, because the offender had initially indicated he would defend the charge, only pleading guilty after committal for trial. The court noted that the timing of a plea is directly relevant to the utilitarian value of the discount: a later plea provides less practical benefit to the justice system and therefore warrants a reduced discount.

In sentencing on Count 1, the court took into account the age of the offence. Because the aggravated break and enter was committed in 2001, Goldring DCJ held that the head sentence was considerably lower than it would have been for a recent offence of that kind. The court also applied the sentencing law as it stood at the time the offence was committed, noting that while the offence now attracts a standard non-parole period, it did not do so when it occurred, and in any event the standard non-parole period does not apply where an offender has pleaded guilty.

The court found special circumstances justifying a departure from the otherwise standard statutory ratio between the non-parole period and the balance of the sentence. The reasons for this finding included the principle of totality (that the combined sentences should not be disproportionate), the delay in proceedings, and the offender's assessed prospects of rehabilitation. Sentences on the two counts were structured to partially accumulate, reflecting that the offences were committed at distinct times. Both sentences were backdated to account for time already served in custody. The court also directed referral to the Drug Court for compulsory drug treatment assessment, noting the offender's heroin addiction as a background factor.

Orders Made

  • Count 2 (break, enter and steal, with Form 1 matters taken into account): non-parole period of two years imprisonment, commencing 1 November 2005 and expiring 31 October 2007; total term of three years expiring 31 October 2008.
  • Count 1 (aggravated break and enter, with Form 1 matters taken into account): six and a half years imprisonment, commencing 1 May 2006 and expiring 31 October 2012; non-parole period of three years and six months expiring 31 October 2009; additional term of three years.
  • First date eligible for parole: 31 October 2009.
  • Matter referred to the Drug Court for compulsory drug treatment assessment.

Key Takeaways

  • The timing of a guilty plea directly affects the size of the discount available at sentencing. A plea entered only after committal for trial attracts a lower discount than an early plea, because the utilitarian benefit to the justice system is diminished.
  • Where an offence is aged by the time of sentence, the court may treat that delay as a factor reducing the appropriate head sentence, independent of any discount for the plea itself.
  • Sentencing for historical offences must apply the law as it stood at the time the offence was committed, including the rules about standard non-parole periods.
  • Special circumstances permitting a variation in the ratio between the non-parole period and the total term may be established by a combination of factors, including totality, delay, and rehabilitation prospects, even where those factors have not independently increased the head sentence.
  • The principle of totality requires partial accumulation of sentences for offences committed at distinct times, rather than full concurrency or full accumulation.

Legislation and Cases Referenced

Cases:
- R v Kay [2004] NSWCCA 330
- R v Todd [1982] 2 NSWLR 517
- R v Mill (1988) 166 CLR 59
- R v Bragias (1997) 92 A Crim R 330
- R v Fahda [1999] NSWCCA 267
- R v Wong (2002) 137 ACR 120
- R v Gower (1991) 56 A Crim R 115
- R v Henry [1999] 46 NSWLR 346

Legislation:
No specific legislation was identified in the provided judgment text. The decision references the standard non-parole period regime and the statutory ratio between non-parole and additional terms, which derive from New South Wales sentencing legislation applicable at the relevant times.