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Bertram Morin v The Queen

Bertram Morin v The Queen

Case [2019] VSCA 301 16 December 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0274

BERTRAM MORIN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE JA and HARGRAVE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 December 2019
DATE OF JUDGMENT:	16 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 301
JUDGMENT APPEALED FROM:	DPP v Morin (Unreported, County Court of Victoria, Judge C Ryan, 21 September 2018)

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CRIMINAL LAW – Sentencing – Appeal – Making a threat to kill – Recklessly causing injury – Prohibited person possess firearm – False imprisonment – Possessing a drug of dependence – Total effective sentence of seven years’ imprisonment – Non-parole period of five years – Limited intellect – Bleak prospects of rehabilitation – Past non-compliance with community correction orders – Extensive criminal history including violent crimes and weapons offences – Whether intellectual impairment required significant moderation of specific deterrence – Additional burden of punishment – Impaired mental functioning – Applicant’s concern for his family – Manifest excess – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	Valos Black & Associates
For the Respondent	Mr J Gullaci	Ms A Hogan, Acting Solicitor for Public Prosecutions

KAYE JA
HARGRAVE JA:

The applicant was charged on two indictments arising out of offences which occurred in June 2015. The first indictment contained five charges: making a threat to kill (Charge 1); intentionally causing injury (Charge 2) or, alternatively, recklessly causing injury (Charge 3); being a prohibited person in possession of a firearm (Charge 4); and false imprisonment (Charge 5). The applicant pleaded not guilty. A jury found him guilty on charges 1, 3, 4 and 5 — thus acquitting him of intentionally causing injury and instead finding him guilty of recklessly causing injury.

At his trial, the applicant relied on an alibi defence to the charges on the first indictment. The evidence of his alibi witness was rejected by the jury.

On the second indictment, the applicant was charged with possessing a drug of dependence — cannabis L. He pleaded guilty to that charge.

Following a plea hearing on 27 July 2018, the sentencing judge imposed the following sentences on the applicant:

FIRST INDICTMENT

Charge Offence Maximum
penalty Sentence Cumulation

1 Make threat to kill
(Crimes Act1958 s 20) 10 years 4 years Base

3 Recklessly causing injury
(Crimes Act 1958 s 18) 5 years 2 years 12 months

4 Prohibited person possess firearm
(Firearms Act 1996 s 5(1)) 10 years 18 months 12 months

5 False Imprisonment
(Common law) 10 years 4 years 12 months

SECOND INDICTMENT

Charge Offence Maximum Sentence Cumulation

1
Possess a drug of dependence
(Drugs, Poisons and Controlled Substances Act 1981 s 73(1)) 5 years 3 months Nil

Total effective sentence 7 years’ imprisonment

Non-parole period 5 years

Pre-sentence detention 109 days’ imprisonment

s 6AAA declaration on Second Indictment His Honour declared that, but for the applicant’s guilty plea, he would have imposed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bertram Morin v The Queen

Details

AGLC: Bertram Morin v The Queen [2019] VSCA 301
Case: [2019] VSCA 301
Decision Date: 16 December 2019

CaseChat Overview and Summary

Bertram Morin appealed against his sentence, arguing it was manifestly excessive. The appellant was convicted of various offences including making a threat to kill, recklessly causing injury, possessing a firearm while being a prohibited person, false imprisonment, and possessing a drug of dependence. The trial judge imposed a total effective sentence of seven years’ imprisonment, with a non-parole period of five years. The appellant submitted that his intellectual impairment and bleak prospects of rehabilitation warranted a significant moderation of the specific deterrence component of the sentence. He also argued that the additional burden of punishment was substantial due to his impaired mental functioning, as well as his concern for his family. The court considered these factors alongside the appellant’s past non-compliance with community correction orders and his extensive criminal history involving violent crimes and weapons offences.

The legal issues before the court were whether the appellant's intellectual impairment and bleak prospects of rehabilitation required a significant reduction in the specific deterrence aspect of the sentence and whether the additional burden of punishment was substantial enough to warrant a reduction in sentence. The court noted that while the appellant's intellectual impairment and bleak prospects of rehabilitation were significant factors, they did not outweigh the severity of the offences committed and the need for specific deterrence. The appellant's extensive criminal history, including violent crimes and weapons offences, further underscored the need for a robust sentence to protect the community. The court held that the total effective sentence and non-parole period were appropriate, reflecting both the gravity of the crimes and the need to safeguard the community.

In refusing the appeal, the court found no manifest excess in the sentence imposed. The court concluded that the appellant's intellectual impairment, while a mitigating factor, did not significantly reduce the need for specific deterrence given the nature and circumstances of the offences. The appellant's bleak prospects of rehabilitation and past non-compliance with community correction orders were considered, but they did not outweigh the necessity to impose a sentence that adequately reflects the seriousness of the crimes and the need to protect the community. The court emphasised that the sentence imposed was commensurate with the appellant’s criminal conduct and the objectives of sentencing, including deterrence and protection of the community.

Orders