Morgan v R

Court of Criminal Appeal (NSW)|2014-12-05|Before: Leeming JA, Adams J, Fullerton J

Judgment 1LEEMING JA: I agree with Fullerton J. 2ADAMS J: I agree with Fullerton J. 3FULLERTON J: The applicant seeks leave to appeal against an aggregate sentence imposed in the District Court in May 2013 pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) after he adhered to pleas of guilty entered in the Local Court to nine counts of break, enter and steal laid contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). Each offence attracted a maximum penalty of 14 years imprisonment. 4In the appointment of the indicative sentence on the first count, sixteen further offences were taken into account on a Form 1. They included: (a)thirteen further offences of break, enter and steal; (b)one offence of break and enter with intent; (c)one offence of possession of 0.44 grams of methylamphetamine; and (d)one offence of knowingly dealing with the proceeds of crime. 5The nine break, enter and steal offences on the indictment, and the thirteen further offences on the Form 1, were committed between December 2011 and February 2012 when the applicant broke into private homes across suburban Sydney and stole cash, jewellery, laptop computers, phones, cameras, Xboxes, and iPods. None of the offences was committed in company. Each involved preplanning to some degree. 6The total value of the property stolen in respect of the nine counts on the indictment was estimated at $200,000. The value of the property the subject of the thirteen offences on the Form 1 was estimated at $105,000. 7A significant amount of stolen property was recovered when search warrants were executed on the applicant's arrest. There was no evidence as to the differential between the value of the property stolen and the value of the property recovered. There was also a large quantity of property seized under warrant not identified as stolen property. That property, together with 35 items sold by the applicant at six pawn shops between 29 November 2011 and 17 January 2012, was the subject of the offence of knowingly dealing with the proceeds of crime on the Form 1. 8On the date of the sentence proceedings, the applicant pleaded guilty to one count of possessing child abuse material contrary to s 91H(2) of the Crimes Act on a separate indictment. That offence attracts a maximum penalty of 10 years imprisonment. It was dealt with in the imposition of the aggregate sentence. 9The child abuse material comprised a total of 780 still images and 41 videos found on two computers seized on the applicant's arrest. One of the computers had been stolen on 6 January 2012. An examination of that computer revealed that the applicant had recently accessed a number of the files containing the child abuse material that had been downloaded by him. All but one of the still images on that computer fell within category 1 of the CETS scale and most of the videos within category 1 or 2 of that scale. Category 2 relates to non-penetrative sexual activity between children or masturbation by a child not involving an adult. Of the seven videos in category 4, at least one of 30 minutes in length, all contained explicit, serious and repeated penetrative sexual abuse of children.

The sentences 10After applying a discount of 25 per cent for each of the break, enter and steal offences and a 10 per cent discount for the plea of guilty to possession of the child abuse material (as to which there is no challenge) the following sentences, referable to their sequence numbers and in descending order of length, were indicated: (a)possession of child abuse material - 18 months; (b)break, enter and steal, sequence 1, taking into account 16 matters on the Form 1 - 5 years; (c)break, enter and steal, sequence 7 - 4 years; (d)break, enter and steal, sequence 6 - 45 months; (e)break, enter and steal, sequences 10 and 18 - 39 months; and (f)break, enter and steal, sequences 9,11, 13 and 17 - 33 months. 11After a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act, an aggregate sentence of imprisonment for 11 years was imposed with a non-parole period of 6 years and 6 months. The sentence dated from 29 April 2012 to account for the applicant's pre-sentence custody. The sentence was ordered to be served concurrently with a sentence imposed on 25 May 2012 in the Local Court for a number of driving offences committed in February 2012.

The break, enter and steal offences 12The facts with respect to the multiple break, enter and steal offences were also detailed in the sentencing reasons referable to their sequence numbers. It is sufficient for present purposes to deal with them in a summary way.

The Hunters Hill offence (sequence 1) 13At about 1.40pm on 16 February 2012, the applicant drove to Milling Street, Hunters Hill, in a Suzuki Swift. He jemmied open the rear door of the house to gain entry. This entry activated a security alarm and alerted a neighbour who observed the applicant open the rear door of the premises. Once inside the applicant attempted to disable the security alarm by cutting the wires. He ransacked a number of rooms and stole a quantity of jewellery. 14The owner of the premises arrived home at about 1.48pm, having been notified that the alarm had been activated. He confronted the applicant. After a short struggle with the owner the applicant broke the glass window at the front of the house and escaped through it, sustaining cuts in the process. 15At about 3pm the same day, police located the Suzuki Swift in the carpark of the block of units where the applicant lived. When they searched the vehicle they located a significant amount of the property stolen from Milling Street together with property stolen from other premises at Park Road, Hunters Hill. (This was one of the offences on the Form 1.) Police also located a small amount of methylamphetamine (0.44 grams) inside the applicant's vehicle. 16Police arrested the applicant later that day and charged him with the break, enter and steal of the property at Milling Street. A sample was taken from the applicant at that time for the purposes of DNA analysis. 17Consequent upon his arrest police executed a search warrant at the applicant's residence where 601 items of stolen property (or property reasonably suspected of being stolen) were seized. Police executed a further search warrant at the applicant's residence on a later date during which a further 673 items were seized.

The Oatlands offence (sequence 6) 18On 8 December 2011, the applicant broke into a residence at Cumbrae Place, Oatlands some time between 8.40am and 9.55pm and ransacked two rooms stealing jewellery, laptops, an iPod, moneyboxes and a game console. The property was valued at $49,449. 19A neighbour saw the applicant walking beside the house on the day of the offence and provided the police with a description. The neighbour also reported the registration number of a Falcon parked nearby registered in the applicant's name. Five items seized under warrant from the applicant's home were identified by the owners as property stolen from them.

The Epping offence (sequence 7) 20On 13 December 2011, the applicant broke into a residence at High Street, Epping some time between 7.30am and 10.40pm. He ransacked six rooms stealing jewellery, cameras and camera-related equipment and gaming items. The property was valued at $82,000. One of the cameras, identified by its serial number, was recovered from the applicant's home during the execution of the search warrant. The owner was unable to identify any of the other items stolen from her home amongst those seized under warrant.

The Dundas offence (sequence 9) 21On 6 January 2012, the applicant broke into a residence at Rock Farm Avenue, Dundas some time between 10am and 10.45am. He ransacked five rooms and stole jewellery, two computers, three cameras, an iPad and an iPhone. This property was valued at $3,670. 22One of the computers was later found at the applicant's home during the execution of a search warrant onto which the applicant had downloaded the child abuse material the subject of the s 91H(2) offence. The owners identified thirteen items that had been stolen from their home amongst the items seized under warrant.

The Roseville offence (sequence 10) 23On 14 January 2012, the applicant broke into a residence at Belgium Avenue, Roseville. He ransacked five rooms and stole a quantity of jewellery valued at $27,960. He left behind a screwdriver. It had the applicant's DNA on the handle. The owner was not able to identify any of the property stolen from her home amongst the items seized under warrant.

The Beecroft offence (sequence 11) 24On 13 January 2012, the applicant broke into a residence at Copeland Road, Beecroft between 8.30am and 6.30pm. He ransacked seven rooms stealing $1,500 in cash, two computers, three iPods and two watches. The property was valued at $8,200. 25The applicant left behind a glove which was also later used for DNA matching. The owners were unable to identify any of the property stolen from their home amongst the items seized under warrant, but were able to identify a watch which the applicant had pawned. It had been on-sold prior to the applicant's arrest.

The North Rocks offence (sequence 13) 26On 30 January 2012, the applicant broke into a residence at Speers Road, North Rocks some time between 8.00am and 8.20am. 27During the commission of the offence, the owner returned home and confronted the applicant who claimed that he was in the wrong house. The owner saw that the applicant was holding a black computer bag and when challenged, the applicant ran from the premises. The owner pursued him. The applicant dropped the computer bag and made good his escape. The bag contained a laptop, a mobile phone and NZ$80. The property stolen (and recovered) was valued at $1,450.

The West Pennant Hills offence (sequence 17) 28On 3 February 2012, the applicant broke into a residence at Aitkin Road, West Pennant Hills some time between 5.30pm and 10pm. He stole a quantity of jewellery and US$15. The applicant's DNA was on a torch left at the premises. 29The owners were not able to identify any of the property stolen from their home from amongst the items recovered during the execution of the search warrant.

The Cherrybrook offence (sequence 18) 30On 3 February 2012, the applicant broke into a residence at Tamarisk Crescent, Cherrybrook some time between 9.15am and 2pm. He ransacked every room and stole a quantity of jewellery, a camera, a handbag, perfume and some lottery tickets. The stolen property on this occasion was valued at $20,000. 31The applicant left behind a glove, which police used to connect him to this offence via DNA profiling. 32The owners identified 31 items stolen from their home from amongst the property seized under warrant.

The Form 1 offences (taken into account on the Hunters Hill offence) 33Each of the thirteen offences on the Form 1 were break, enter and steal offences of a similar nature to those on the indictment. They all involved the applicant breaking and entering suburban homes from which jewellery, cash and electronic devices were stolen, only a small proportion of which was recovered. Some items were able to be traced to a pawnshop from where they were on-sold. 34Two of the offences of the Form 1 involved offences committed on the same day as the offending the subject of sequence 1 - the day the applicant was arrested. In one offence, unique collectable Commonwealth minted coins and some jewellery was stolen valued at $5,000. The coins were recovered from the Suzuki Swift the applicant was driving on his arrest. A further fourteen items were identified by their owners when they viewed the property seized under warrant from the applicant's home. The remaining eleven break, enter and steal offences were committed during the preceding four weeks with multiple offences committed on some days.

The applicant's subjective circumstances 35The applicant did not give evidence on sentence. His subjective circumstances were presented in the form of a comprehensive report from Ms Durkin, a forensic psychiatrist. The sentencing judge did not refer to the detail of the report. 36His Honour sentenced the applicant on the basis that, apart from a substance abuse problem and a gambling problem, there were no other mental health or mental health-related issues, and no credible evidence that at the time of the offences the applicant was unaware of what he was doing or the consequences of his conduct. There was no suggestion that his judgment was impaired and no basis to conclude that at the time of any of the offences his moral culpability was reduced. 37His Honour was satisfied that the applicant was motivated to fund his substance abuse and gambling problems which, in the conventional way, explains but does not excuse his offending. He also observed that despite there being no evidence that the applicant had participated in any rehabilitation programs in custody as at the date of sentence, he was satisfied that the applicant had reasonable prospects of rehabilitation and not reoffending. 38His Honour found that although the offending for which the applicant was to be sentenced was what he described as the applicant's "first foray into crime", and that it spanned a relatively short period of time, it nonetheless impacted on multiple victims. His Honour observed that the property stolen included jewellery that would likely be of sentimental value and electronic equipment, also likely to contain photographs of similar value and/or to record sensitive or private information. He also noted that a victim of a break and enter can experience feelings of unease when at home alone or returning home after an absence and in some cases those feelings can survive in the long term. His Honour accepted that although every home broken into was ransacked, there was no evidence that the applicant inflicted any wanton damage or vandalism. 39It was not submitted on the appeal that his Honour gave insufficient weight to the applicant's subjective circumstances, or that he overlooked any feature which might operate in mitigation of sentence. Rather, counsel submitted that the applicant's subjective case was a factor which distinguished him from other offenders in comparable cases involving multiple offences of break, enter and steal. In order to give that submission consideration, it is necessary to set out the applicant's subjective circumstances in some greater detail. 40The applicant was aged almost 29 at the date of sentence. Save for the driving offences committed in February 2012 (one of which involved driving dangerously during a police pursuit attracting a term of imprisonment of 12 months with an 8 month non-parole period), he had no criminal record. There was no evidence that he had the disadvantage of a dysfunctional upbringing. In the history given to Ms Durkin, it is obvious that he was the only child in a stable and positive home environment. The applicant described himself as a well adjusted child without behavioural or psychological issues. It would appear that he remained close to his parents throughout his adolescence and into his adulthood which eventually manifested in some incapacity to separate and forge independence from them and some social isolation in other spheres of his life. His parents remain supportive of him. 41The applicant reported above average academic performance during primary school and progressing thereafter into secondary school until regular truanting in Year 11 required him to repeat that year's schooling. It would appear that it was at this time that the applicant was accepted into a peer group who were involved in drug use. He reported engaging in drug abusing behaviour to facilitate his acceptance into the peer group. 42The applicant completed Year 12 after which he commenced work in the real estate industry. He continued in that vocation for some years before taking up a position in recruitment where he remained for a further three years. In the three years prior to entering custody he worked as an account manager ultimately progressing to a sales manager. He reported that it was that role which provided him with significant autonomy and that he began using and abusing drugs on a daily basis and gambling with regularity. While his winnings from time to time appear to have triggered a further deterioration in his functioning by facilitating his access to stimulant drugs, in particular "ice", which, in turn, became a feature of his gambling problem as he sought out those activities whilst affected under its stimulant effect. He progressed to the point where he was gambling on a daily basis and losing large amounts of money. This then triggered what was described as his use of "less conservative pornographic materials", ultimately culminating in his possession of the child abuse material for which he was sentenced. As his drug dependence intensified, he required additional sources of income to support his dependence. He apparently rationalised his actions at that time on the basis that the victims he stole from would be insured. With hindsight he accepted the significant detrimental effect of his behaviour on those people.

The appeal 43At the hearing of the appeal, the sole ground of appeal was the contention that the aggregate sentence was manifestly excessive 44The aggregate sentence necessarily comprehended the sentence indicated for the child abuse material. Given the quite separate and distinct offending comprehended by that charge, the indicated sentence must have been notionally accumulated, to some degree, on the nine break, enter and steal offences the subject of a separate indictment. The focus of the submissions of both counsel was, however, on that part of the aggregate sentence which must be taken to account for the break, enter and steal offences. It appeared to be common ground that, in the application of totality principles, it was that offending which occupied his Honour' primary attention and to which, in a practical sense, the length of the aggregate sentence must be attributed. 45The applicant submitted that on a review of a number of relevantly comparable cases where sentences for multiple break, enter and steal offences were the subject of consideration by this Court, a review amplified by the sentencing statistics compiled by the Judicial Commission, the sentence imposed in this case, is what counsel described as an "outlier", which I take to mean a sentence so far in excess of past sentences as to result in a sentence that is "unreasonable and plainly unjust". 46The applicant's counsel accepted the limitations on the use that can be made of extrinsic material when challenging a sentence as manifestly excessive on appeal (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54]). He also acknowledged that neither sentencing statistics nor past sentencing decisions fix a range within which sentence might or should fall or that sentences imposed in other cases dictate whether a sentence under challenge is beyond the exercise of a permissible sentencing discretion (see Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 at [28] and [41]). He maintained the submission however that when the whole of the circumstances that have informed sentences imposed in the past for comparable offending are examined, and where a sentence under challenge is not relevantly distinguishable on its facts and a markedly more severe sentence is imposed, then the past sentences may properly be used as a measure to assist an appellate court to decide whether a sentence said to be manifestly excessive is shown to be "unreasonable or plainly unjust". 47Accepting that to be a principled approach, the question remains whether the applicant has made good his challenge to the aggregate sentence imposed in this case as manifestly excessive. Counsel acknowledged that the question is not whether this Court would have imposed an aggregate sentence of the length of the sentence imposed by the sentencing judge but, rather, whether the aggregate sentence imposed in this case, a sentence which I accept is at the upper limit of a notional range, was so excessive as to amount to error. 48The applicant submitted that despite the sustained and repeated nature of the offending and the sheer quantity and estimated value of the property that was stolen, the degree of notional accumulation between the break, enter and steal offences has exceeded the exercise of a sound sentencing discretion having regard to the applicant's subjective circumstances and, in particular, the fact that he had no prior criminal record which ought to have afforded him some leniency which was not reflected in the aggregate sentence imposed. 49In two of three cases to which particular reference was made (Watts v R [2007] NSWCCA 153 and Lewins v R [2007] NSWCCA 189), sentences were imposed by this Court on re-sentence in accordance with the approach in Pearce v R [1998] HCA 57; 194 CLR 610 with the actual extent of accumulation between the individual sentences revealed in the sentencing order. In the third case (Hernandez v R [2013] NSWCCA 51), sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act, coincidentally by the same sentencing judge who imposed the aggregate sentence on this applicant. 50The insertion of s 53A by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) was not intended to alter the application of totality principles. Rather, it is a procedural provision designed to simplify the sentencing process where an offender is to be sentenced for multiple offences and to render the sentencing exercise more transparent by requiring a sentence for each offence to be indicated by the sentencing judge before a single aggregate sentence is pronounced. The same principled approach to questions of accumulation and concurrency in the exercise of the sentencing discretion in fixing an aggregate sentence in conformity with totality principles obtains under s 53A of the Crimes (Sentencing Procedure) Act as it did under the previous sentencing regime where an effective sentence was the result of the appointment of different commencement dates for individual sentences. 51Although a far larger cohort of cases was extracted in a schedule attached to the submissions of the applicant's counsel, the greater majority of which are not relevantly comparable and only some of which were the subject of elaboration in submissions of both counsel, it is necessary to refer to only three. 52In Watts, the offender pleaded guilty to eleven offences contrary to s 112(1) of the Crimes Act, three offences contrary to s 113(1) and asked for 23 further offences to be taken into account. At first instance, he was sentenced to imprisonment for an effective term of 11 years with a non-parole period of 7 years. On appeal, he was re-sentenced to imprisonment for 5 years with a non-parole period of 3 years. Unlike the applicant, the offender had an uncertain and occasionally violent upbringing, and a psychologist opined that he had depression and anxiety. He had made suicide attempts and was addicted to heroin. The Court allowed the sentence appeal because the value of the goods stolen by the offender (estimated at $83,000) was "modest" by comparison with the value of goods stolen by the offender in Danuca v R [2005] NSWCCA 45 (estimated at $785,000), and because Harrison J (with whom Giles JA and Hidden J agreed) was satisfied that an "extremely unfortunate combination of factors influenced the applicant to commit the offences with which he was charged and to which he pleaded guilty" (at [60]). In addition to Danuca, Harrison J also considered the cases of R v Lay [2006] NSWCCA 45 and R v Johnson [1999] NSWCCA 431, the offenders in both cases being young (20 years old and 22 years old respectively), both were addicted to drugs and had significant criminal histories. In those cases, involving 19 offences with 12 offences taken into account on a Form 1, and 7 offences with 14 offences taken into account on Form 1 respectively, effective sentences of 5 years and 6 months with a non-parole period of 3 years and 6 months, and 6 years with a non-parole period of 3 years, were imposed after orders for partial accumulation. 53In Lewins, the offender pleaded guilty to four offences contrary to s 112(1) of the Crimes Act and sentenced, at first instance, to imprisonment for an effective term of 10 years with a non-parole period of 7 years. On appeal, the offender was re-sentenced to imprisonment for an effective term of 8 years with a non-parole period of 5 years and 6 months. The offender was a professional thief and had a criminal record for offences of dishonesty dating from when he was aged 11. He had served a period of imprisonment for armed robbery. He had used drugs from an early age and was addicted to amphetamines for three years in his late teens. He was also addicted to gambling. The appeal was allowed on parity grounds. The co-offender, sentenced for the same offences in addition to 68 matters taken into account on a Form 1, was sentenced to an effective term of 3 years with a non-parole period of 12 months. 54In Hernandez, the offender pleaded guilty to seven offences contrary to s 112(1) of the Crimes Act, one offence contrary to s 113(1) and one offence contrary to s 308E(1), and asked for ten further offences to be taken into account on a Form 1. Property valued at a total of $136,351 was stolen. The offender cut cables to disarm alarms and CCTV cameras in commercial premises before drilling or cutting into safes to access cash. He had prior convictions in the USA, including three offences of break, enter and steal and one of possessing burglary tools. The offender was sentenced to an aggregate sentence of 13 years and 6 months with a non-parole period of 9 years. The offender gave evidence at the sentence proceedings that he committed the offences because he had accrued gambling debts and threats had been made to his wife. The sentence appeal was dismissed, there being no error in the process of accumulation that must have been undertaken by the sentencing judge by which the aggregate sentence was arrived at. Significantly for the present purposes, the Court said: "[43] This Court has observed on a number of occasions (R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at 486; Murray v R [2013] NSWCCA 12) that questions of accumulation and totality are matters primarily within the discretion of the sentencing judge and this Court will be reluctant to intervene. Intervention can occur only on one of the well known bases for interference with a discretionary exercise: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. [44] None of the offences for which the applicant was sentenced contain overlapping factual elements. That comment does not refer to the theoretical elements but to the factual circumstances of the commission of each offence. [45] In other words, each offence was separate and no part of one offence overlapped with the other, except in relation to the offence of impairing electronic communications, which is ordinarily an aspect of the commission of certain types of break, enter and steal. All of the offences of break and enter (either with intent to steal or to steal) were committed on separate occasions and involved separate victims. ... [49] Moreover, for a total of seven sentences of break, enter and steal, one sentence of break, enter with intent to steal and one sentence for impair electronic communications, which have maximum sentences of 14 years, 10 years and 10 years respectively, a total sentence in aggregate of 13 years and 6 months with a non-parole period of 9 years has been imposed. I reiterate that there were 10 further offences taken into account on a Form 1, which, in the sentences to which they were relevant, emphasise the need for deterrence. [50] I accept that none of the offences are in the worst category. The applicant is not a person who has no criminal history and, as a consequence of that, he is not entitled to the leniency afforded a first offender. Nor is the applicant a person who has not before spent time in a penal institution. [51] Notwithstanding the finding by the sentencing judge, with which I do not cavil, that the applicant has reasonable prospects of rehabilitation, the history of the applicant and the circumstances of the offending show that specific and general deterrence are significant factors. Yet, the sentencing judge imposed a sentence on the applicant for nine offences, taking account of a further 10 on a Form 1, which is less than the maximum sentence for one break, enter and steal. [52] In terms of totality of the sentence imposed, the extent of the accumulation and concurrency were not outside of the range available to his Honour in the exercise of the sentencing judge's discretion. For this reason this ground of appeal also fails." 55The Crown submitted that despite the applicant's favourable subjective circumstances, the sentencing judge was entitled to regard the objective gravity of the totality of the offending as overwhelming the leniency that might otherwise have been afforded the applicant in the appointment of an aggregate sentence. She further submitted that the sentence ultimately imposed, including the fact that a finding of special circumstances resulted in a significant variation to the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act, has not been shown to have exceeded his Honour's legitimate sentencing discretion or that the authorities referred to compel that conclusion. 56Although no complaint is made about the individual sentences (as indicated), the Crown submitted the fact that they so readily withstood scrutiny provides strong support for rejecting the challenge to the aggregate sentence as "unreasonable" and "plainly unjust". 57I am not persuaded that the applicant has made good his challenge to the aggregate sentence as an "outlier" or that the notional accumulation inherent in the appointment of the aggregate sentence, although a severe sentence, has breached totality principles. 58The order I propose is as follows: (1)Leave to appeal granted. (2)Appeal dismissed.

Amendments 09 December 2014 - Renumbering Amended paragraphs: 10, 58 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2014

Crimes (Sentencing Procedure) Amendment Act 2010(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (13)

Cited By (2)