Citation: R v Morrison [2013] NSWDC 334
Court: District Court of New South Wales
Date: 13 February 2013
Judge: Judge S Norrish QC
Background
The offender, Andrew Morrison, appeared for sentence on an armed robbery charge under s 97(1) of the Crimes Act 1900. On 2 November 2011, at a shopping centre in Glenfield Park near Wagga Wagga, he entered a branch of The Reject Shop, grabbed a female employee from behind, held a knife close to her throat, and demanded she open the cash register. He took $536.55 in cash before fleeing the store.
At the time of the offence, Morrison was on parole, having served over five years of a prior sentence imposed by Judge Coorey. He had stolen a motor vehicle to travel to the shopping centre, left a companion in the car, and committed the robbery alone. After fleeing, he drove dangerously through suburban streets before abandoning the vehicle and being later arrested.
In addition to the armed robbery, three summary offences were dealt with on a s 166 certificate: taking and driving a conveyance without consent, driving in a manner dangerous to the public, and driving while never having held a licence. Morrison pleaded guilty to all matters at the December sittings, when the case had been listed for trial.
Legal Issues
- What sentence was appropriate for the armed robbery, having regard to the objective seriousness of the offence, the offender's criminal history, and his parole status at the time?
- What discount applied to reflect the utilitarian value of the guilty plea, given its lateness?
- How should the sentences for the three summary offences be structured in relation to the principal offence?
- Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence under the Crimes (Sentencing Procedure) Act 1999.
Decision
Guilty plea discount. The court accepted that the guilty plea was entered at a late stage, when the matter had already been listed for trial. Applying the principles from Thomson and Houlton, the court allowed a discount of no more than 10% on the head sentence for the armed robbery to reflect the utilitarian benefit of the plea.
Objective seriousness and prior record. Judge Norrish regarded the armed robbery as a serious offence. The victim was physically restrained from behind with a knife held close to her throat, and closed-circuit television footage confirmed Morrison acted purposefully and with clear intent. The fact that Morrison was on parole at the time, having been released only weeks before the offence, weighed heavily in the assessment of the appropriate sentence.
Concurrent sentences for summary matters. The court applied the principle from Pearce v R (1998) 194 CLR 610, concluding that the summary offences were intimately connected to the armed robbery. The criminality inherent in taking the vehicle and the subsequent dangerous driving was already captured within the overall sentencing for the robbery, so sentences of imprisonment for those offences were ordered to run concurrently with the principal sentence.
Special circumstances. The court found special circumstances existed, justifying a non-parole period that represented a greater proportion of balance-of-sentence time than would otherwise apply. The reasoning was that a longer parole period would better support the offender's rehabilitation and reintegration, without reducing the effective non-parole period below what the seriousness of the offending required.
Orders Made
- Armed robbery: sentenced to six years and nine months imprisonment, commencing 2 October 2013, expiring 1 July 2020; non-parole period of three years and nine months, expiring 1 July 2017; eligible for release to parole on 1 July 2017.
- Take and drive without consent: 12 months imprisonment, commencing 2 October 2013, concurrent.
- Driving in a manner dangerous: six months imprisonment, commencing 2 October 2013, concurrent; disqualified from holding or obtaining a driver's licence for two years from 13 February 2013.
- Driving while never licensed: convicted and fined $500, with 28 days to pay.
Key Takeaways
- A guilty plea entered only at the point of a scheduled trial attracted a discount of no more than 10% on the head sentence, consistent with the approach established in Thomson and Houlton.
- Where summary offences are intimately connected to a principal indictable offence and the overall criminality is captured in the principal sentence, the District Court may order concurrent terms of imprisonment for those summary matters, applying the principles in Pearce v R.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can justify adjusting the ratio between non-parole period and head sentence where a longer supervisory period on parole is considered appropriate to rehabilitation, provided the effective non-parole period remains proportionate to the offending.
- Parole status at the time of the offence is a significant aggravating factor in sentencing: committing a serious offence only weeks after being released to parole reflects adversely on the offender's prospects and weighs against leniency.
- Closed-circuit television footage formed part of the evidence in the sentence proceedings, and the court drew on it directly to assess the offender's deliberateness and the impact of the offence on the victim.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5, s 166
Cases
- Pearce v R (1998) 194 CLR 610
- R v Henry (& Ors) (1999) 46 NSWLR 346
- Blackman and Walters v R [2001] NSWCCA 121
- R v Kitchener [2003] NSWCCA 134
- Callaghan v R (2006) 168 A Crim R 145
- R v DW [2012] NSWCCA 66
- R v Moffitt (1990) 20 NSWLR 114
- Veen (No 2) v R (1998) 164 CLR 465
- Yardley v Betts (1979) 22 SASR 108
- R v Wright NSWCCA (1997, unreported)