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Court of Criminal Appeal 5 December 2014

Morgan v R

[2014] NSWCCA 284

Sexual offencesTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE BREAK, ENTER AND STEAL POSSESS CHILD ABUSE MATERIAL

Citation: Morgan v R [2014] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 5 December 2014
Judge(s): Leeming JA, Adams J, Fullerton J (all agreeing)

Background

The appellant pleaded guilty in the District Court to nine counts of break, enter and steal, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW), and one count of possessing child abuse material, contrary to s 91H(2) of the same Act. The break, enter and steal offences were committed across suburban Sydney between December 2011 and February 2012, targeting private homes and yielding estimated proceeds of approximately $200,000 across the nine indictment counts. A further thirteen break, enter and steal offences and other matters were taken into account on a Form 1 (a procedural mechanism by which additional offences are listed for consideration at sentencing without separate penalties being imposed).

The child abuse material comprised 780 still images and 41 videos found on computers seized at the appellant's arrest, including highly explicit material at the upper end of the CETS classification scale. A 25 per cent discount applied to the break, enter and steal pleas and a 10 per cent discount to the child abuse material plea.

The District Court imposed an aggregate sentence of 11 years' imprisonment with a non-parole period of 6 years and 6 months, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The appellant sought leave to appeal on the ground that the aggregate sentence was manifestly excessive.

  • Whether the aggregate sentence of 11 years was manifestly excessive in all the circumstances.
  • Whether the sentencing judge erred in the accumulation of individual sentences when constructing the aggregate.
  • Whether totality principles were breached by the notional accumulation inherent in the aggregate sentence.

Decision

Fullerton J (with Leeming JA and Adams J agreeing) dismissed the appeal. The Court found that the appellant had not established the aggregate sentence was an "outlier" or that it was plainly unjust. Although the sentence was described as severe, the Court was satisfied it did not breach totality principles.

The Court noted that the individual component sentences, which were not challenged on appeal, readily withstood scrutiny. That fact provided strong support for rejecting the challenge to the aggregate. The Crown's submission was accepted: the objective gravity of the totality of the offending was such that the sentencing judge was entitled to regard it as overriding the leniency that might otherwise have flowed from the appellant's subjective circumstances, including reasonable prospects of rehabilitation.

The Court observed that the extent of accumulation and concurrency in constructing the aggregate was within the range legitimately available to the sentencing judge. It also noted that the sentence for nine offences on the indictment, taking account of a further ten on the Form 1, remained below the maximum for a single break, enter and steal offence, which was itself a relevant consideration. Specific and general deterrence were identified as significant factors given the appellant's criminal history and prior incarceration.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) will not be disturbed merely because it is severe, provided it does not breach totality principles or fall outside the range of legitimate sentencing discretion.
  • Where individual component sentences withstand scrutiny unchallenged, that provides strong support for rejecting a manifest excess challenge to the resulting aggregate sentence.
  • A sentencing court is entitled to treat the cumulative objective gravity of multiple offences as overriding favourable subjective circumstances, including reasonable prospects of rehabilitation, particularly where the offender has a relevant criminal history and prior imprisonment.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances may significantly vary the statutory non-parole ratio; such a variation does not of itself render an aggregate sentence excessive.
  • Sufficient evidence existed here that the degree of accumulation and concurrency was within the range open to the sentencing judge, even where the aggregate for multiple offences remained below the statutory maximum for a single offence in the same category.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 91H(2), 112(1)(a), 113, 308E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)

Cases:
- Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
- Danuca v R [2005] NSWCCA 45
- Hernandez v R [2013] NSWCCA 51
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Lewins v R [2007] NSWCCA 189
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Johnson [1999] NSWCCA 431
- R v Lay [2006] NSWCCA 45
- Watts v R [2007] NSWCCA 153