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Court of Criminal Appeal 4 June 2008

R v Morris

[2008] NSWCCA 115

Theft & property
CROWN APPEAL WHETHER SENTENCES MANIFESTLY INADEQUATE EFFECT OF DELAY ON SENTENCE DISCOUNT FOR PLEA OF GUILTY.

Citation: R v Morris [2008] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 4 June 2008
Judge(s): James J, Hoeben J, Hall J

Background

The respondent pleaded guilty in the District Court to two counts: an aggravated break, enter and armed robbery committed on Christmas Day 2001 at Woolloomooloo (count 1), and a break, enter and steal committed in September 2005 at Killara (count 2). The sentencing judge also took into account several further break-and-enter offences on Form 1 documents. The count 1 offence was a serious home invasion in which the respondent confronted a mother and her two daughters with a kitchen knife, demanding money and valuables and threatening to return if police were called.

A significant feature of the case was the delay between the count 1 offence and the respondent being charged. Police identified the respondent by fingerprint in August 2005, some four years after the offence, but did not charge him until October 2006, a further 15 months later. During the intervening period, the respondent had been sentenced by the Drug Court for other matters and had been in continuous custody, with only a brief break, from June 2002 through to the December 2007 sentencing.

Goldring DCJ sentenced the respondent to an aggregate non-parole period of four years with a balance of term of three years. The Crown appealed, contending the sentences were manifestly inadequate.

  • Whether the sentences imposed, individually and in aggregate, were manifestly inadequate
  • Whether the sentencing judge gave appropriate weight to the objective seriousness of the offences, particularly count 1
  • Whether the sentencing judge properly accounted for delay between offence and charge in imposing sentence
  • Whether the sentencing judge correctly applied the totality principle when existing periods of custody were already in place
  • Whether the discount allowed for the respondent's guilty plea in respect of count 1 was erroneous, and if so, whether that error warranted appellate intervention

Decision

The Court of Criminal Appeal dismissed the Crown appeal unanimously. Hoeben J (with James J and Hall J agreeing) accepted that the sentencing task confronting Goldring DCJ was unusually complex. The respondent had been in continuous custody for an extended period, the Drug Court had already imposed sentences that had to be respected, and the sentencing judge was required to structure sentences that did not offend the totality principle while still reflecting the objective seriousness of the offences.

On the question of delay, the Court affirmed that sentencing for a stale offence, long after it was committed, calls for considerable flexibility. Where delay is lengthy and partly attributable to the prosecution, fairness to the offender in his present circumstances can require what might otherwise appear to be a significant degree of leniency. The Court found the sentencing judge was justified in placing considerable weight on this factor in relation to count 1.

The Court acknowledged that Goldring DCJ had erred in the discount he allowed for the guilty plea in relation to count 1. However, the Court characterised the effect of that error as relatively minor. Intervening on that basis alone would amount to no more than "tinkering" with the sentence, which is not a proper basis for appellate interference.

Applying the well-established principle that a Crown appeal requires clear demonstration of error before this Court will substitute its own view for that of the sentencing judge, the Court was not persuaded that the sentences, either individually or in aggregate, were manifestly inadequate.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that sentencing for a stale offence requires "considerable measure of understanding and flexibility," and that lengthy delay between offence and sentence can justify what might otherwise appear to be significant leniency.

  • Where an identifiable sentencing error is found but its effect on the overall sentence is minor, the appellate court may decline to intervene, characterising correction of that error as mere "tinkering" that does not justify substituting a different sentence.

  • The totality principle requires a sentencing court to take pre-existing periods of custody into account when structuring new sentences, particularly where an offender has been continuously imprisoned under separate proceedings.

  • Crown appeals face a high threshold: the Court reiterated that appellate intervention is reserved for cases where error, whether patent or latent, has been clearly demonstrated, citing Lowndes v The Queen (1999) 195 CLR 665 and Dinsdale v The Queen [2000] HCA 54.

  • A discount for a guilty plea, even if incorrectly calculated, will not automatically produce appellate intervention; the significance of the error must be assessed in the context of the overall sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1) and 112(2)

Cases:
- Dinsdale v The Queen [2000] HCA 54; (2002) CLR 321
- Lowndes v The Queen (1999) 195 CLR 665
- R v Fahda [1999] NSWCCA 267
- R v Henry (1999) 46 NSWLR 346
- R v Ponfield & Ors (1999) 48 NSWLR 327
- R v Todd (1982) 2 NSWLR 517
- Wong v R (2002) 137 A Crim R 120