R v Stephen Jodey Morris

CATCHWORDS: CRIMINAL LAW - Sentencing - plea of guilty - discount - time at which plea entered

R v Kay [2004] NSWCCA 330 R v Todd [1982] 2 NSWLR 517 R v Mill (1988) 166 CLR 59 CASES CITED: R v Bragias (1997) 92 A Crim R 330 R v Fahda [1999] NSWCCA 267 R v Wong (2002) 137 ACR 120 R v Gower (1991) 56 A Crim R 115 R v Henry [1999] 46 NSWLR 346

PARTIES: Crown Stephen Jodey Morris

COUNSEL: A Brown, solicitor (Crown) A Williams (Offender)

SOLICITORS: NSW DPP Legal Aid Commission

1 HIS HONOUR: Stephen Morris pleaded guilty on arraignment to one charge of aggravated break and enter and one charge of break, enter and steal and he is convicted of those charges. He also asked me to take into account four other offences.

2 The aggravated charge carries a maximum of twenty years imprisonment, the other, fourteen years. The aggravated offence now attracts a standard non-parole period, but it did not at the time of the offence. In any event, the offender has pleaded guilty, so the standard non- parole period does not apply.

3 The facts of the offence charged to Count 1 of the indictment are that on Christmas Eve 2001, Mrs V and her two daughters, aged respectively nineteen and five attended a street party. The nineteen year old daughter D went home at about 12.30 on Christmas morning and went to sleep on the sofa in the lounge room downstairs. Mrs V and J, aged five, came home about thirty minutes later. Mrs V turned out all the downstairs lights and put J to bed in an upstairs bedroom. For a short time, she wrapped gifts in her bedroom and then went to bed. Shortly afterwards, she heard noises from the downstairs kitchen. She thought it might be her teenage son, and went back into her bedroom. The noises continued, so she went downstairs and called out four times, still thinking that the noises were caused by her son. No one responded. 4 When she walked into the kitchen, she saw a cigarette glowing in the dark, and she saw a person holding a kitchen knife, with a blade about thirty centimetres long. It is not in dispute that this knife was Mrs V's property and was in the kitchen when the offender arrived. The person, now known to be the offender, walked towards her and pointed the knife at her stomach. He said, "Don't move, I will get you if you scream. Give me the money and some valuables. Whatever you can, give me, because I need it for my heroin addiction." Mrs V replied that she had no money because she was a pensioner. The offender said, "I don't believe you. You have a nice house, go inside, keep moving." He was still pointing the knife at her. She walked into the lounge room where her daughter D was asleep. She said to the offender, "Ask my daughter if she has something, she might give you some money." The offender replied, "No, you'll have more than that, you'll have jewellery and other valuables and mobile phones." Mrs V said, "I don't have a mobile phone."

5 The offender held the knife close to the daughter. Mrs V then woke her daughter. The daughter said, "Who is that?" Mrs V replied, "I don't know, just give him your money D. How much do you have?" D said, "What for?" Mrs V said, "D, we're being robbed." D said, "Oh, shit. Okay, I'll give you money, just wait, I'll go upstairs." The offender said, "Okay, I'll wait down here."

6 The offender took the Nokia mobile phone from the armchair. This was valued at nearly $1,000. D said, "No, that's all my life in there." The offender said, "No, I'll take this. You can have it if you give me money." D said, "No, please give me my phone back first and I'll give you the money." The offender then pointed the knife at D and said, "Don't move or I'll hurt you. I know you're going to call the police but don't try. If you do nothing I won't hurt you. Come on, we'll go upstairs now." D then gave the offender three rings and the necklace she was wearing.

7 Mrs V and D then went upstairs. The offender followed them, pointing the knife. While in Mrs V's bedroom, the offender opened the drawers in the dressing table and threw them on the floor. He also looked through a brand new wallet. He took her birthstone ring, valued at about $2,500. He then tipped out the contents of Mrs V's handbag and D's wallet. He took a small amount of cash from Mrs V's handbag, and $80, a credit card and a key card from D's wallet. D said, "Don't take my cards." The offender said, "No, I'll take it." He pointed the knife towards D and said, "Give me your pin number."

8 The offender then forced Mrs V and D to walk back downstairs. Mrs V went back upstairs to try to hide her younger daughter, J's, necklace, but the offender followed her into J's bedroom and searched the room. J was asleep in the room at the time. The offender took the necklace from the top of the dressing table, Mrs V said, "Please don't, this is my little daughter's room". The offender said, "No, I'll take whatever I want to, you have a computer here, I'll take it." Mrs V said, "No, please, that is my little daughter's." The offender did not take the computer. He dropped the cross pendant from the necklace as he was going downstairs.

9 Another young child was asleep in another room but he did not wake during the incident.

10 The offender then tried to open the security screen door but it was locked. Mrs V took a key and said, "Please leave and don't come back." The offender said, "I will come back if you try to tell the police and tell them what happened and that I have been here." He then ran off, taking the kitchen knife with him.

11 D went to neighbours and told them what happened. The neighbours contacted the police. The victims later noted that about thirty CDs valued at about $500 were missing from the house.

12 Police took Mrs V and D to Kings Cross Police Station. D was too distraught to give a statement at the time, but did so later. Mrs V provided a statement, describing the offender as being six feet tall, skinny build, sun-tanned skin, Australian, thirty to thirty-five years old, with short, fair to brownish hair and needle marks on his inner elbows. She also provided a description for the preparation of a 'COMFIT', and this description was consistent with the offender's appearance.

13 It is not in dispute that, later that day, the offender was detained by a neighbour after he had broken into a unit in Waverley. He was taken to Waverley Police Station, where there was a struggle.

14 On Christmas Day, police attended Mrs V's house and found a fingerprint on the inside of the kitchen window, upside down, consistent with a person climbing over the sill. Fingerprints were also developed on the kitchen sink. It was discovered, some years later, that those fingerprints matched those of the offender. When the offender was arrested in May 2005, on other charges, fresh fingerprints were taken from him, and there was a new system of recording fingerprints in operation. Subsequently, the computer identified a possible match.

15 The offender denied the offences when he was charged. At that time he was also charged with the offence of armed robbery on DV. He was arrested on this charge on 10 October 2006, and committed for trial in May 2007. Up until that time, he indicated that he would defend the charges. Earlier this year, he did plead guilty, in circumstances that I shall describe later. As part of the negotiations, when he pleaded guilty to the offence in Count 1, the prosecution agreed that the armed robbery on DV would be taken into account on a Form 1, and that is before me.

16 The other Form 1 offence to be taken into account on Count 1 was committed on 21 October 2005, that is, at approximately the same time as the two Form 1 offences in relation to the Count 2 matter. The offence was committed - and that is the Form 1 matter - between 8.30am and 1pm. The house was ransacked, and a gold ring worth about a thousand dollars was stolen. The offender was detected because he left a blood-stained piece of paper towel under the bed in the house. DNA was taken from this, and compared with DNA from a buccal sample that the offender provided to the police. The offender was arrested and charged with this offence on 4 October 2007, that is, after he had been arraigned for the other offences.

17 I am also asked to take into account an offence committed on 28 January 2002. One of the offences on a Form 1, attached to Count 1, was committed at about the same time as the Count 2 offence and the other offences on a Form 1 attaching to that offence.

18 Mrs KM left her home in Killara, at about 9.30am on 23 September 2005. She returned about an hour later. Before leaving, she ensured that all windows and doors were locked. When she returned, she entered via a rear door, and, as she walked up an internal staircase, she saw some bags had been tipped over. She also noticed that the glass panel on French doors, at the front of the house, had been smashed. She inspected the house and found drawers in her bedroom had been emptied onto the floor, that cupboards had been opened and that property from the other bedrooms had been thrown on the floor. She contacted the police. She found that the following property had been stolen: one Olympus camera, a pair of binoculars and four pairs of earrings, in total valued at about $2,000. When police attended, they found a fingerprint on a plastic box that had been moved in a bedroom. This was later identified as being identical to that of the offender.

19 The break, enter and steal offences on the Form 1 occurred at Haberfield on 17 October 2005, between 2am and 1pm, and at Newtown, the next day, between 8.40am and 3pm. Both were attributed to the offender, because fingerprints obtained at each crime scene were identified as being his.

20 The circumstances of this case are most unusual, because of the delays, and the manner in which the offender was charged. This offender has a very long history of break, enter and steal offences. Since he was arrested in June 2002, on matters subsequently dealt with by the Drug Court, he has spent over five years in custody, having been sentenced for other similar offences, and sentenced to terms of imprisonment in respect of them. On 7 August 2002, he was dealt with in the Drug Court, and received a number of concurrent sentences. He failed to complete the Drug Court program, and received a term of full-time imprisonment. On 20 September 2004, he was sentenced to a further fixed term of one year's imprisonment for a similar offence of break, enter and steal. This sentence was due to expire on the same date as the non-parole period, for what I will refer to as the Drug Court offences. That date was 19 September 2005, and the offence was, in fact, an aggravated break, enter and steal.

21 On 18 May 2005, he was charged with the offence committed on 28 January 2002. I am told by the prosecution that this matter was not charged for some time, because of the delays in the processes of the government analytical laboratory, which prevented the offender's DNA to be matched with DNA found at the crime scene, until shortly before that time. The delay is otherwise unexplained.

22 I have noticed a practice whereby police apparently wait until just before the expiry of a non-parole period, or the fixed term of a sentence, before arresting people currently in custody for past offences. If this practice is conscious, or an official or unofficial policy of the police, it flies in the face of popular concepts of justice and, as it is a form of extrajudicial punishment, the courts will not stand for it. It may well be, however, that the delay in this case may be explained by a backlog in the government analytical laboratories, but that type of explanation is not feasible to explain the delay following a match, in August 2005, of a fingerprint found in Mrs V's house, with the fingerprints of the offender.

23 I am told by the prosecution that shortly after the 2001 offence, police attempted to match this fingerprint, but the technology then available did not enable it to be matched with the offender's fingerprints, which were already on file. By August 2005, the police had available to them a fresh set of fingerprints from the offender, and new technology. A fingerprint match was made at that time but, as I have already pointed out, the offender was not charged with this offence until 10 October 2006, that is, some fifteen months after the police had the information available to them.

24 The offender was released on parole on 19 September 2005, after serving the non-parole period for the drug-related offences and the fixed term. The date of his release was after the police had already matched his fingerprints with those taken from Mrs V's house.

25 He was at liberty until 2005, when he was arrested and charged with goods in custody. He was, in fact, on bail, on parole, or both, at the time of all the offences now before the Court, other than the V offence, and, as I have said, he has otherwise been in custody, apart from that period in 2005, continuously since June 2002. He was, ultimately, sentenced to a fixed term of six months for the goods in custody offence.

26 He was only at liberty from 19 September until 2 November 2005, that is, about six weeks. During this time, he committed the second charge on the indictment and three offences that are on Form 1. On 3 November 2005, that is, the day after his arrest, his parole was revoked, although it is not clear to me what the basis of the revocation was.

27 All these offences are objectively serious. The several break and enter offences involve entry to premises and stealing, admittedly during daylight hours, when each of the premises was empty. The property stolen was not particularly valuable, but was certainly not insubstantial. Each of these was a crime which, unfortunately, is typical of the offences committed by some people with drug addictions, in order to obtain more drugs. The offences are more significant because of the offender's long record of similar offences.

28 The V offence is even more serious. It involved the threat of violence, and the victims were vulnerable. There were young children in the house. However, there was no evidence that either the break and enter or the armed robbery of the elements of this offence were planned. The offender picked up the knife in the kitchen; he did not bring it with him. He says the offence was out of character, in that it involved violence, and it was at night, and that there were people in the house. There are no precisely similar previous offences which involve the threat of violence.

29 In each case, the offences on the Form 1, and there are several of them, require that the sentences be weighted accordingly. The offences on the indictment, therefore, cannot be regarded in isolation.

30 General deterrence is an important factor to be considered when sentencing for this type of offence. The courts must make it clear to the community that the offenders, especially repeat offenders, cannot expect leniency. Personal deterrence is also important, especially in the case where the offender has such a long record of break and enter offences.

31 In this case, the offender has given evidence that the offences were closely connected to his addictions, and that his attempts at rehabilitation have not succeeded completely. In the past, he seems to have relapsed into drug use, and re-offended rapidly after his release from custody. However, in this case, for reasons I shall explain, I am satisfied that there are some prospects for rehabilitation, in spite of the offender's record.

32 Mr Morris is now forty-one years old. He was born in the United Kingdom and then grew up in Australia from the age of three. His family was with the Air Force and the offender spent much of his childhood in Malaysia. After he returned to the Australian Capital Territory, he did not find the environment as positive as Malaysia. He began to commit offences, and to use alcohol and other drugs. From the age of thirteen, he spent time in juvenile institutions. After his release he went home, but he left home at age fifteen. By sixteen he was addicted to amphetamines, by eighteen, to heroin. When he was twenty-eight, he formed a relationship with a woman, who gave birth to their son whilst he was in custody, but who died shortly afterwards from a heroin overdose. The son is now twelve, and lives with the offender's mother in Queensland.

33 In 1996 he was released to parole and moved to Western Australia, where he attempted to get a job in the mining industry. There, he formed a relationship with a woman, Kerry, and this relationship lasted some six years. They have a daughter, who is now nine. Although he wanted to marry Kerry, she had some reservations. The offender became depressed, and started using benzodiazepines. He relapsed into break and enter offences, and was returned to prison. Kerry waited for him for some time. Shortly before his planned date of release, as I have indicated, he was charged with outstanding offences. Kerry decided that she could no longer wait, and moved to Queensland with the daughter.

34 During his periods of release, the offender has worked in several occupations. Since 2002, while he has been in custody, he has completed a number of vocational courses. He is now, I think, qualified to work as a landscape gardener. He says that he did these courses in preparation for his release to parole, and starting a new life.

35 I have, in evidence, a report from Ms Suzanne Freeman, a forensic psychologist. The offender said on oath that what he told the psychologist was true. According to her, he has now developed considerable insight into the reasons for his criminal behaviour and his addiction. This is in large measure due to the short-term drug and alcohol courses he has completed whilst in custody. Ms Freeman concludes, "For Stephen to make real changes in his life, he requires long-term structured drug rehabilitation that will allow him a supervised and gradual return to the community. He would also benefit from some individual counselling to deal with his abandonment issues, and to learn strategies to deal with anxiety. Educational programs that emphasise pro-social problem solving, anger management, social and general life skills and the role-playing of alternate coping strategies would also assist in his general rehabilitation."

36 The offender has said on oath that he has not used heroin since 2005, and he is now on a methadone program. He said this has enabled him to think clearly. As I have already pointed out, it is clear that, on two separate occasions, this offender has been charged with old offences shortly before he was to be released on parole. The first was in May 2005, and the second was in October 2006.

37 At the time of all these offences, the offender was addicted to several prohibited drugs, most notably amphetamines and heroin. He was addicted to them before he went into custody late in 2005. There is no reason to doubt that he was affected by drugs at the time of each of the offences I am now considering. That is not an excuse, but it is a relevant factor.

38 Before the offences, including the Drug Court offences and the aggravated break and enter, to which he has now pleaded guilty, although the offender was using illicit substances, he was in a steady, full-time relationship with a woman, and they had a small daughter. For the first, sustained period of his life, he was not charged with offences for a significant time. The breakdown in this relationship was instrumental in his relapse into drug abuse and crime.

39 During the periods he was in custody after 2002, the offender kept in touch with his partner Kerry, and, on two separate occasions, formed the plan, that upon his release to parole, he would join her and their child. While he was in custody, however, she moved to Queensland. When he was released from parole in September 2005, he could not go to Queensland, because it was a condition of his parole that he not leave New South Wales and, indeed, that he live at Hope House at Parramatta. This is apparently a hostel operated by the Salvation Army.

40 The offender had no other support during this period. Because his partner had gone to Queensland, he had no contact with anyone capable of giving him support, and he fell rapidly into heroin use again. During this period, he committed the second offence on the indictment, and three Form 1 offences. He had been looking forward to release at the end of the fixed term, when he was charged with the aggravating offence currently before the Court. This, again, destroyed his rehabilitation plans. He described himself as being shattered.

41 The offender pleaded guilty to the 2005 offence on the indictment, at the first opportunity, and he readily admitted the other offences committed at this time.

42 He gave evidence on oath that he had no memory of the Woolloomooloo offence at Mrs V's house. When the police told him that he was being charged with this offence, he did not believe them. He said that this offence was totally out of character for him, for three reasons. First, he never committed break and enter offences at night, secondly, he always checked premises and never broke in if people were home, and third, he never used a weapon. In fact, his record contains two convictions for break and enter premises at night, and one for break and enter, aggravated by the fact that people were in the premises, but, apart from the V offence, the other offences before me were committed in daytime.

43 He has a number of assault convictions, one of which arose from the scuffle when he was arrested at Waverley in 2002. He maintained on oath, under cross-examination, that he had no memory of the V offence at all. He had vague memories of the subsequent break and enters at Waverley, for which he was arrested, and he vaguely remembers a scuffle with police outside the Waverley Police Station. In this sense, I find more probably than not, that the offender had no memories of the V offence. He, therefore, should not be penalised for refusing to plead guilty to an offence, of which he had no knowledge. It emerged, in the course of his evidence, that he did not become convinced of his guilt, until after his present counsel was instructed, and had discussed the brief of evidence with him.

44 As a result of the legal advice he received then, he decided to offer to plead guilty, on certain conditions, and those conditions were accepted by the prosecution.

45 There was a further reason why he should not have been expected to plead guilty. He was originally charged with three offences; aggravated break and enter and two armed robberies. The aggravated break and enter, and at least one of the armed robbery charges appeared, at least on their face, to be duplicitous.

46 The consequence of this is that, because he did not plead guilty at the earliest opportunity, he will not be entitled to the maximum discount for his plea, but the plea still has considerable utilitarian value, because the witnesses were not required to give distressing evidence, about an event that had occurred nearly five years before the offender was arrested.

47 This situation is quite different from that discussed by the Court of Criminal Appeal in Kay [2004] NSWCCA 330, where the Court was of the view that the respondent, in that case, had not pleaded guilty from a conscious desire to avoid prosecution for the offence, and a hope that it, or his complicity in it, would not be discovered. The Court seemed satisfied that there was a conscious refusal to disclose this matter to the police. I am satisfied that the offender's belief that he had not committed the offence was genuine, as was his assertion that he had and retains no memory of the events.

48 The delay and pressure caused by the late laying of additional charges in this case is exceptional. Delay has been considered by appellate courts many times. It has clearly made the offender's time in custody more onerous than would otherwise have been the case, and this is an important consideration.

49 Even though I must allow for the issue of totality, in determining the total sentence that must be imposed in respect of the matters to which the offender has now pleaded guilty, I must not lose sight of the fact that those offences are such that, if he had been charged in a timely way, that is, without undue delay, the offences that took place in 2001 would have probably been dealt with at the same time as the drug offences in 2002. If so, they may possibly have increased both the non-parole period and the total term, which the offender was then required to serve, but this would not have been significant in relation to the total length of the sentence. Again, the 2005 matters on the indictment and the Form 1, if charged in a timely way, might well have been dealt with in connection with other matters, for which the offender was sentenced in 2006.

50 To have those matters dealt with now, rather than at the same time as the offences which are similar in nature and seriousness, increases the possibility that the offender would be required to serve a longer period in custody, than would otherwise have been the case.

51 As I have indicated, the circumstances are significantly different, in my view, from those which faced the sentencing court in Kay. In that case, at paragraph 33, McColl JA, with whom the other judges agreed, emphasised that regard must be had to the circumstances of the particular case. I accept the submissions of the defence, that the principal guideline, for me, is provided by the Court of Appeal decision in Todd [1982] 2 NSWLR 517, approved by the High Court in Mill (1988) 166 CLR 59.

52 In Todd, the Court discussed some previous authorities, in which there appeared to be a conflict of opinion as to the effect of delay. I do not think any of those authorities is directly in point. It may be that some remarks in Bragias (1997) 92 A Crim R 330 are to the effect that, where the delay is due to an offender exercising his right to put the prosecution to proof of the charges, he may not be entitled to any benefit, but this was not the view of Simpson J, and she affirmed her views in Fahda [1999] NSWCCA 267, where Studdert J agreed with her. This approach also appears to have been adopted by the Court of Criminal Appeal in Wong (2002) 137 ACR 120. With respect, I adopt and apply the views of Simpson J.

53 In any event, the offender in this case never denied his guilt of any of the offences before the Court except the V offence, where, given his genuine lack of memory, and the other reasons I have mentioned, he had good reasons to put the prosecution to proof. As Street CJ said in Todd, at 519-520, "Preferably, one would hope that, in the orderly administration of justice within this State, all offences would have come before the same judge on the one occasion. But assuming they came before separate New South Wales judges, it would be a question for a second judge to evaluate what was the field open to be entered in sentencing for the Sydney crimes. It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant, in consequence of the totality of his criminality over this period of eight days of committing offences of similar character...Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

54 In this case, the offences committed by the offender were largely of the same character, and were committed over two short periods of a few weeks each, late 2001 to early 2002 and September to early November 2005. The reasons for the delay in Todd and Mill - custody in another state - are different from those in the case before me, but it is clear that the principal criterion, as to whether delay should be considered in determining the length of sentence, is hardship, or at least the perception of hardship to the offender ; see Wong (2002) 137 ACR 120. There is no doubt that in this case there is actual, as well as perceived, hardship.

55 It is also clear from Gower(1991) 56 A Crim R 115, that delay may, in some cases, amount to 'special circumstances' for the purposes of the sentencing legislation. Although that case has stood for some years, it is perfectly consistent with later authority. While an offender should not receive a double benefit, the issue of delay is relevant, both to findings of special circumstances and to the issue of totality.

56 Count 1 of the V offence is extremely serious. The Form 1 offences must be taken into account. Although I do not consider that the 'guideline judgment' of Henry [1999] New South Wales Court of Criminal Appeal is directly in point, because the prosecutor raised it in his submissions, and because one Form 1 offence was an armed robbery, it may offer some guidance.

57 The offences on the indictment were committed at distinct times, and, even having regard to the principle of totality, there must be a degree of accumulation. The sentences will be back-dated to account for the time the offender has actually spent in custody on these matters. The Count 1 offence will be dealt with under the law relating to sentencing, as it was at the time of the offence.

58 I find special circumstances, because of factors which have not affected the head sentence, including the principle of totality, and my finding that the offender has substantial prospects of rehabilitation, and I will vary the statutory ratio between the non-parole period and the total sentence accordingly.

59 On Count 2 there will be a maximum discount of twenty-five per cent for the early plea of guilty, and taking into account the matters on Form 1, the offender is sentenced to a non-parole period of two years imprisonment, commencing on 1 November 2005 and expiring on 31 October 2007 and a total term of three years expiring on 31 October 2008. On Count 1 there will be a discount of twenty per cent for the plea of guilty. The head sentence takes into account the age of the offence. The fact that this offence was committed in 2001 means that the head sentence is considerably less than it would have been if the offence had been recent. Again, taking into account the Form 1 matters, the offender is sentenced - and I have to express this in a different way, because the law was different at that time - to six and a half years imprisonment, commencing 1 May 2006 and expiring on 31 October 2012. There will be a non- parole period of three years and six months, expiring 31 October 2009, and an additional term of three years. So the first day that he is eligible for parole will be 31 October 2009.

60 This sentence is one of which, in my view, meets the criteria for a compulsory drug treatment order and I direct that this matter be referred to the Drug Court for the appropriate assessment.

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