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Court of Criminal Appeal 7 August 2000

R v Morgan [2000] NSWCCA 296 revised - 13

[2000] NSWCCA 296

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Morgan [2000] NSWCCA 296 revised 13/09/2000
Court: NSW Court of Criminal Appeal
Date: 7 August 2000
Judge(s): James J; Dowd J

Background

The applicant, a man aged 23 at the time of the offences, pleaded guilty in the District Court to 12 charges including armed robbery, kidnapping, breaking and entering, and stealing a motor vehicle. He asked the sentencing judge to take into account a further 11 offences. All offences were committed over a three-week period in late 1996.

The offences were serious. They involved the use of a firearm and a knife across multiple incidents at commercial premises in Sydney. Several victims were forced into car boots or abandoned in remote locations after being robbed. Judge Shillington in the District Court imposed sentences of 10 years penal servitude (minimum term five years, additional term five years) on each indictable charge, noting that the offences "cry out for general deterrence."

The applicant applied for leave to appeal against sentence. The appeal was filed late, and a further period elapsed before the hearing in August 2000. The application relied principally on fresh psychiatric evidence that had not been before the sentencing judge.

  • Whether new psychiatric evidence, said to be fresh evidence, established that the applicant suffered from bipolar disorder at the time of the offences (rather than only the adjustment disorder diagnosed before sentencing)
  • Whether, if that fresh evidence were accepted, the Court of Criminal Appeal should exercise its sentencing discretion afresh and impose lesser sentences
  • Whether the extension of time to appeal should be granted, and leave to appeal given

Decision

The Court admitted the fresh psychiatric evidence. That evidence included reports from Dr Mastroianni and observations from the applicant's mother, alongside notes from a general practitioner and records from treating psychiatrists. James J accepted, on the basis of this evidence, that the applicant was suffering from a bipolar mental illness, at least at times during the offending period, in addition to the adjustment disorder already identified at sentencing.

The Court then exercised the sentencing discretion afresh, as required once fresh evidence is admitted on a sentence appeal. However, James J concluded that the sentences imposed by Judge Shillington were already extremely lenient given the nature and volume of the offending. The sentencing judge had clearly factored in a considerable discount for the applicant's mental disability.

Even accepting the new bipolar diagnosis, the Court found no basis for imposing lesser sentences. The gravity of the offences, including multiple armed robberies using a firearm, kidnapping of victims, and the large number of charges and take-into-account matters, outweighed any additional mitigating weight the fresh evidence might carry. The Court was required to apply the principles from the guideline judgment in R v Henry (1999) 46 NSWLR 346.

Dowd J concurred with the reasons and orders proposed by James J.

Orders Made

  • Appeal against sentence dismissed

Key Takeaways

  • Admitting fresh psychiatric evidence on a sentence appeal does not automatically result in a reduced sentence; the Court of Criminal Appeal must independently exercise the sentencing discretion afresh and assess whether lesser sentences are actually warranted.
  • Where a sentencing judge has already applied a substantial discount for mental disability, additional psychiatric evidence going to the same mitigating factor may not shift the outcome, particularly where the objective seriousness of the offending is very high.
  • In dismissing the appeal, the Court confirmed that multiple armed robberies involving firearms and kidnapping represent a level of criminality for which general deterrence carries significant weight in sentencing.
  • The Court of Criminal Appeal confirmed that it must apply the guideline judgment in R v Henry (1999) 46 NSWLR 346 when sentencing for armed robbery offences.
  • A late filing of an appeal application, combined with fresh evidence that does not ultimately warrant a different result, will not prevent the Court from granting an extension of time and leave to appeal, while nonetheless dismissing the substantive appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 90A (kidnapping)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)