Editors --- "R v Morgan - Case Summary" [2003] AUIndigLawRpr 37; (2003) 8(3) Australian Indigenous Law Reporter 31

• R V Morgan
• Facts:
• Held, Granting Leave To Appeal, And Ordering A Total Sentence Of Six Years, With An Effective Non-Parole Period Of Eighteen Months:
• Case Extract:
• Wood Cj
• Discount For Plea Of Guilty And Fernando Considerations

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Court and Tribunal Decisions - Australia

R v Morgan

New South Wales Court of Criminal Appeal (Wood CJ, Simpson and Adams JJ)

20 August 2003

[2003] NSWCCA 230; (2003) 57 NSWLR 533

Criminal law — appeal against severity of sentence — discount for plea of guilty — Fernando considerations — whether sentence excessive — Form 1 offences — principle of totality

Facts:

The applicant sought leave to appeal against three sentences imposed upon him following pleas to charges of robbery in company, break and enter with intent and assault occasioning actual bodily harm.

Coolahan DCJ took into account the early guilty pleas of the offender in sentencing but was of the opinion that these pleas were not evidence of remorse and were only entered in the face of a strong Crown case. He also took into account ‘Fernando considerations’. For these reasons he gave a sentence discount of twenty five percent.

Coolahan DCJ deemed the offences to be serious and found that there should be some accumulation of the sentences in order to indicate the totality of the criminality. However, he found that there were special circumstances that would partly overcome the effect of accumulation. His Honour also determined that the sentences should allow a realistic period of supervision upon the applicant’s release from custody. His Honour ordered that a total sentence of seven years and six months be imposed with a non-parole period of six years.

The applicant submitted that his Honour erred in considering the strength of the Crown’s case when determining the discount for an early guilty plea. The applicant further submitted that his Honour had not given significant weight to ‘Fernando considerations’ in the determination of the applicant’s sentence. The applicant asserted that, in comparison to statistics from the Judicial Commission, the three sentences received were excessive.

Held, granting leave to appeal, and ordering a total sentence of six years, with an effective non-parole period of eighteen months:

1. A plea of guilty will not inevitably attract the discount of twenty five percent referred to in R v Thomson & Houlton (2000) 49 NSWLR 383, as the timing of the plea, the nature of the offence and considerations such as the protection of the public may lead to a lesser discount, or no discount at all: [23]–[24].

2. Although the strength of a Crown case is not a factor in determining the discount for a guilty plea, a recognition of the inevitable in the face of a strong Crown case may be less indicative of remorse: [17]. R v Carter [2001] NSWCCA 245, R v Lo [2001] NSWCCA 271 and R v Parkinson [2001] NSWCCA 244 referred to.

3. The considerations set down by Wood CJ in Fernando (1992) 76 A Crim R 58 are not exhaustive nor do they justify any special leniency in the sentencing of indigenous persons. The Fernando considerations may have particular relevance for the framing of a sentencing order for indigenous persons from a remote area, or those who have particularly disadvantaged backgrounds, or when the offence is alcohol-related. On these facts, the considerations add little to this sentencing exercise but remain relevant for the rehabilitative aspects of the applicant’s sentence: [21]–[22].

4. Comparison of sentences to Judicial Commission statistics is problematic as these statistics cover a wide range of cases and are gathered from the varying objective circumstances of offences and varying subjective circumstances of offenders. If a comparison to these statistics is made, it needs to be made by reference to the final sentence and not to the assumed starting point: [25]–[27].

5. His Honour applied the totality principle but the statutory ratio between the total effective non-parole period and the total sentence was eighty percent, which exceeds the statutory ratio of seventy five percent. Moreover, this ratio did not reflect his Honour’s additional finding of special circumstances that allowed the applicant a ‘realistic period of supervision upon his release from custody’: [35].

Case Extract:

Wood CJ

Discount for plea of guilty and Fernando considerations

16. It was submitted that his Honour [Coolahan DCJ] fell into error insofar as he made reference to the strength of the Crown case in the context of the discount for the plea, which it may be accepted, was an early plea.

17. It is true that the strength of the Crown case is not a relevant consideration in the quantification of the discount for the utilitarian value of a plea: R v Carter [2001] NSWCCA 245; R v Lo [2001] NSWCCA 271 and R v Parkinson [2001] NSWCCA 244; (2001) 125 A Crim R 1. On the other hand, a recognition of the inevitable, in the face of a strong Crown case, may be less indicative of remorse. If this was what his Honour had in mind then error has not been shown.

18. It was however submitted that the combination of the early plea and the ‘Fernando considerations’ should have attracted a discount above the 25 percent given, with the consequence either that his Honour had inappropriately discounted the utilitarian value of the plea by reference to the strength of the Crown case, or that he had paid only lip service to the ‘Fernando Considerations’.

19. His Honour did not explain the manner in which the ‘Fernando considerations’ were applied, beyond noting that they had been taken into account. The reference in this passage of the judgment was to my decision in R v Fernando (1992) 76 A Crim R 58, where (at 62–63) I outlined a number of propositions of relevance for the sentencing of an aboriginal offender, as follows:

(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.

(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.

20. As has been made clear by subsequent decisions, these remarks were not intended as an exhaustive statement of sentencing practice, or as justifying any special leniency in relation to offenders of the class to whom they applied: R v Hickey (Court of Criminal Appeal, 27 September 1994, unreported), R v Ceissman [2001] NSWCCA 73; (2001) 160 FLR 252 and R v Pitt [2001] NSWCCA 156.

21. Rather, they were intended to reflect an understanding of some of the factors which can lead a person of this racial background into offending behaviour, and which, in appropriate cases, may have a particular relevance for the way in which a sentencing order may suitably be framed. They can have also a particular relevance for persons appearing before the courts who come from remote parts of the country, and who have particularly disadvantaged backgrounds, or when the offence is alcohol-related.

22. The present offences were not alcohol-related and the appellant did not come from a remote community, nor was he unfamiliar with the justice system. While the ‘Fernando considerations’ could properly be taken into account, they added little to the present sentencing exercise beyond those matters which would otherwise have been taken into account, for any offender, as subjective circumstances. They were not favourable, but they did point to the need for a sentence that took into account the rehabilitative aspects, particularly in relation to post release supervision and assistance.

23. Moreover, it is not the case that a plea of guilty will inevitably attract the discount of 25 per cent spoken of in R v Thomson (2000) 49 NSWLR 383. The Court there referred to a ‘range of 10 to 25 per cent’ (at 419 [160]), noted that the timing of the plea was an important consideration, and also referred to the circumstance that, in some cases, the nature of the offence, and considerations such as the protection of the public, may lead to a lesser discount, or indeed to no discount at all.

24. It is an error to assume that an early plea will automatically attract a 25 per cent discount for utilitarian considerations. This ground has not been made good.

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