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Court of Criminal Appeal 21 August 2008

Morris, Morris and Snelson v R

[2008] NSWCCA 182

Theft & property
CRIMINAL LAW: AGGRAVATED BREAK, ENTER AND STEAL (2) WHETHER LESSER SENTENCES WARRANTED

Citation: Morris, Morris and Snelson v R [2008] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 21 August 2008
Judges: Spigelman CJ, Hidden J, Price J

Background

Three co-offenders, Bernard Morris, Bruce Morris, and James Snelson, pleaded guilty in the District Court to two charges each of aggravated break, enter and steal arising from a night-time raid on a rural property near Bourke in January 2006. The offences involved breaking into two occupied residences while the tenants were absent, stealing a large quantity of property including a GPS device worth $50,000, and then using vehicles found on the property to transport the stolen goods. All three also had two charges of take and drive a conveyance dealt with on a form 1 (meaning they were taken into account in sentencing without separate convictions being recorded).

Bernard Morris faced an additional charge: in the early hours of the following morning, he returned to the same property with four juvenile offenders and entered one of the already-ransacked residences, stealing further items of lesser value. This gave rise to a charge of aggravated enter dwelling with intent to steal.

Sentencing Judge Finnane DCJ in the District Court imposed four-year sentences on each applicant for the main charges, with Snelson receiving a slightly longer term of four years and eight months. Each applicant sought leave to appeal, arguing their sentences were excessive and that the sentencing judge had not adequately weighed their guilty pleas, differing roles, subjective circumstances, and, in Bernard Morris's case, assistance provided to authorities.

  • Whether the sentencing judge gave adequate weight to each applicant's plea of guilty
  • Whether the sentences sufficiently distinguished between the three offenders' different levels of involvement and different subjective circumstances
  • Whether Bernard Morris's assistance to authorities was properly taken into account
  • Whether the overall accumulated sentence for Bernard Morris correctly reflected the sentencing judge's finding of special circumstances (which ordinarily results in a longer parole period relative to the non-parole period)
  • Whether lesser sentences were warranted in any of the three cases

Decision

The Court dismissed the appeals of Bruce Morris and Snelson, finding no error in the sentences imposed on them. The Court accepted that the sentences were at the upper range but concluded that any significant reduction would result in inadequate punishment given the seriousness of the offending. The Court noted that the sentencing judge had properly considered the guilty pleas and that the offences, involving a coordinated group entering two homes and stripping them of substantial property, warranted heavy sentences.

On the question of distinguishing between the offenders, the Court found no error in treating Bruce Morris and Bernard Morris comparably for the main offences. Bernard Morris's lesser involvement in the major break-ins and his assistance to authorities were counterbalanced by the significantly more favourable subjective case that Bruce Morris presented. As for Snelson's role as the instigator of the offences, the Court held this did not elevate his objective culpability so markedly above that of his co-offenders as to warrant a different head sentence.

Bernard Morris's appeal succeeded only on a limited technical ground. The sentencing judge had found special circumstances in his case, which is a finding that justifies adjusting the balance between the non-parole period and the balance of term. However, the way the fixed-term sentence for the additional offence had been structured meant this finding was not properly reflected in the overall sentence. The Court restructured the commencement date of the additional fixed term so that the aggregate sentence became four years with a non-parole period of two years and nine months, preserving the benefit of the special circumstances finding.

The Court also addressed the circumstance of aggravation of "being in company," drawing on principles from earlier authority. It noted that while the residences were known to be unoccupied at the time, the presence of multiple offenders still carried weight because it emboldened the participants, even if the risk of direct confrontation with an occupant was reduced.

Orders Made

  • Bruce Morris: leave to appeal granted, appeal dismissed.
  • James Snelson: leave to appeal granted, appeal dismissed.
  • Bernard Morris: leave to appeal granted, appeal allowed in limited terms. The sentences for the two aggravated break, enter and steal charges are confirmed, commencing 22 January 2007. The fixed term of 12 months for aggravated enter dwelling with intent to steal is confirmed but is to commence on 22 October 2008, expiring on 21 October 2009. The aggregate sentence is four years with a non-parole period of two years and nine months.

Key Takeaways

  • A sentencing court's finding of special circumstances must be properly reflected in the structure of an accumulated sentence. Where fixed terms are added to existing sentences, the overall non-parole period must genuinely embody the benefit of that finding, or the sentence will require restructuring on appeal.
  • Differing levels of involvement among co-offenders do not automatically produce different head sentences. The Court of Criminal Appeal confirmed that a lesser degree of involvement may be offset by a co-offender's more favourable subjective circumstances, producing comparable outcomes at the head-sentence level.
  • In dismissing the appeals of Bruce Morris and Snelson, the court reaffirmed that sentences at the upper end of the appropriate range will not be reduced simply because a different, lighter sentence might also have been defensible.
  • The "in company" aggravation under the Crimes Act operates by reference to its coercive and emboldening effect on offenders, not solely by reference to the risk of confrontation with a victim. Where premises are known to be unoccupied, this reduces but does not eliminate the weight given to the circumstance of aggravation.
  • Assistance to authorities is a recognised mitigating factor, but its weight in sentencing may be diminished where it is counterbalanced by other features of a co-offender's more favourable subjective case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 111(2), 112(2), 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 22
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Lawrence [2005] NSWCCA 91
- SZ v R (2006) 168 A Crim R 249
- R v Button & Griffen [2002] NSWCCA 159; 54 NSWLR 455
- Douar v R [2005] 159 A Crim R 154