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Court of Criminal Appeal 25 August 2009

Morrison v Regina

[2009] NSWCCA 211

Also reported as (2009) 197 A Crim R 103
Theft & property
CRIMINAL LAW SENTENCE BREAK ENTER AND STEAL EVALUATION OF REMORSE WHETHER CONDITIONAL LIBERTY WHETHER LESSER SENTENCE WARRANTED

Citation: Morrison v Regina [2009] NSWCCA 211
Court: Court of Criminal Appeal, New South Wales
Date: 25 August 2009
Judge(s): McClellan CJ at CL, Grove J, RA Hulme J

Background

The appellant was convicted of break, enter and steal contrary to s 112(1) of the Crimes Act 1900, following a break-in at a residential property in Merewether Heights in April 2008. Property worth more than $40,000 was stolen, including jewellery from a safe, and none of it was recovered. The appellant was identified by the occupant, fingerprint evidence, and a mobile phone left at the scene. He pleaded guilty at an early stage.

In October 2008, the District Court at Newcastle sentenced him to 3 years 9 months imprisonment with a non-parole period of 2 years 3 months. The sentencing judge found, among other things, that the appellant had been on conditional liberty at the time of the offence, treating this as an aggravating factor. The judge also made qualified findings about the appellant's remorse and rehabilitation prospects.

The appellant sought leave to appeal, contending that the sentencing judge had erred in treating him as being on conditional liberty, and that the resulting sentence was outside the appropriate range.

  • Whether the sentencing judge erred in finding that the appellant was on conditional liberty at the time of the offence, given that his prior sentence had formally expired and he was unaware that his parole had been revoked and a warrant issued for his arrest.
  • Whether the sentence of 3 years 9 months with a non-parole period of 2 years 3 months was outside the appropriate sentencing range for a single offence of break, enter and steal.

Decision

On the conditional liberty question, the Court accepted the appellant's argument. Although the State Parole Authority had revoked the appellant's parole and issued a warrant for his arrest in January 2008, the prior sentence itself had formally expired on 10 March 2008, one month before the offence. There was no evidence that the appellant knew of the revocation or the warrant.

Grove J clarified the scope of an earlier principle from R v King, which had stated that committing an offence while "unlawfully at large" should be treated as an aggravating factor above the ordinary conditional liberty factor. That principle was confined to cases where an offender had escaped from detention or absconded, and thus necessarily knew of the unlawfulness of their freedom. It did not extend to a person who was ignorant of an outstanding parole revocation warrant. Finding conditional liberty on these facts was therefore an error.

RA Hulme J conducted a review of comparable sentencing decisions and statistical data to assess whether the original sentence was within range. He concluded it was not, having regard to the error on Ground 2 and the overall circumstances of the case. Relevant factors included the seriousness of the offence, the residential nature of the premises, the substantial value of unrecovered property, the appellant's prior record for similar offences, his early plea of guilty (attracting a 25% discount), his demonstrated remorse, his dysfunctional background and history of drug addiction, and qualified prospects of rehabilitation.

The Court maintained the sentencing judge's finding of special circumstances, resulting in a non-parole period set at 60% of the total term. The appeal was allowed and the sentence reduced.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed and replaced with a term of imprisonment of 3 years 3 months, comprising a non-parole period of 1 year 11 months commencing 9 August 2008 and expiring 8 July 2010, with a balance of term of 1 year 4 months expiring 8 November 2011.
  • Earliest eligible release date on parole: 8 July 2010.

Key Takeaways

  • The aggravating circumstance of being "at large" after a parole revocation applies only where the offender is aware of the unlawfulness of their liberty, such as in cases of escape or knowing breach. It does not apply where the offender is ignorant of an outstanding revocation warrant, even if such a warrant legally exists.
  • Under s 171(3) of the Crimes (Administration of Sentences) Act 1999, the extension of a sentence for time "at large" after a revocation order does not, without more, convert an offender's liberty into conditional liberty for sentencing aggravation purposes.
  • A formal finding that an offender was on conditional liberty requires evidence that the offender knew, or reasonably ought to have known, of the status that made their liberty conditional or unlawful.
  • In dismissing the original sentence as outside the appropriate range, the Court of Criminal Appeal applied both comparative case analysis and statistical sentencing data to reach the re-sentence figure.
  • Mitigating factors including early guilty plea, genuine remorse, dysfunctional upbringing, drug addiction history, and family support all remained relevant to the re-sentencing exercise, as did the need for general and specific deterrence given the prevalence of residential break-and-enter offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 171
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Attorney General's Application (No 1) Under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327
- R v King [2003] NSWCCA 352
- Weininger v The Queen (2003) 212 CLR 629
- R v Bloomfield (1998) 44 NSWLR 734
- R v Baleisuva [2004] NSWCCA 344
- R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299
- Hoswell v R [2006] NSWCCA 70
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Additional cases cited: R v Brewster, R v Castles, R v Gardner, R v Harris, R v Johnson [2005], R v Kay, R v Lyons, R v Pitt, R v Proud, R v Radic, R v Richards, R v S Hassen, R v Shorten, R v Skornia, R v Tran