JUDGES:	ASHLEY, WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2015
DATE OF JUDGMENT:	18 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 155	1^st revision: 2 July 2015, para [2]
JUDGMENT APPEALED FROM:	DPP v Morris (Unreported, County Court of Victoria, Judge Coish, 18 December 2014)

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CRIMINAL LAW – Sentence – Crown appeal – Respondents (R1 & R2) broke into victims’ home and committed aggravated burglary, multiple counts of rape, armed robbery, and other offences – Two victims were mother and daughter of Vietnamese background – Evidence in respect of R2 that crime was racially motivated – R1 sentenced to TES 15 years with NPP 11 years – R2 sentenced to TES 16 years and 6 months with NPP 13 years – Whether sentences manifestly inadequate – Whether orders for cumulation insufficient given that charges related to two different victims and respondents fell to be sentenced as serious sex offenders on some charges – Sentences not wholly outside the range – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B F Kissane QC with Mr B L Sonnet	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent Morris	Ms R S Sleeth with Mr J R Cass	Victoria Legal Aid
For the Respondent Brooke	Mr C B Boyce SC with Ms G F Connelly	Greg Thomas Barristers and Solicitors

ASHLEY JA

WEINBERG JA
WHELAN JA:

The Director of Public Prosecutions has appealed against sentences imposed upon Andrew John Morris and Mathew Ernest Brooke, both of whom pleaded guilty, in the County Court at Melbourne, to a number of sexual and other offences arising out of an incident that occurred on 23 May 2013.

The charges to which each respondent pleaded guilty, the individual and total effective sentences, and the non-parole periods imposed were as follows:

ANDREW JOHN MORRIS

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 5 years 5 months

2 False imprisonment [common law] 10 years [Crimes Act 1958 s 320] 2 years 3 months

3 False imprisonment 10 years 2 years 3 months

4
Administer drug for the

purposes of sexual penetration [Crimes Act 1958 s 53(1)]
10 years [Crimes Act 1958 s 53(1)] 2 years 4 months

5 Rape[1] [Crimes Act 1958 s 38(1)] 25 years [Crimes Act 1958 s 38(1)] 8 years BASE

6 Rape 25 years 7 years
6 months 10 months

7
Administer drug for the

purposes of sexual penetration
10 years 2 years 4 months

8 Armed Robbery [Crimes Act 1958 s 75A(1)] 25 years [Crimes Act 1958 s 75A(2)] 4 years
6 months 5 months

9 Rape 25 years 7 years
6 months 10…

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 DPP v Morris

Details

AGLC: DPP v Morris [2015] VSCA 155
Case: [2015] VSCA 155
Decision Date: 18 June 2015

CaseChat Overview and Summary

The respondents in this case were convicted of multiple offences, including aggravated burglary, multiple counts of rape, and armed robbery. The victims were a mother and daughter of Vietnamese background, and there was evidence that the crime against one respondent was racially motivated. The case was heard by the High Court of Australia, which was asked to consider whether the sentences handed down by the lower court were manifestly inadequate.

The respondents were sentenced to lengthy terms of imprisonment, but the Crown appealed, arguing that the sentences were too lenient given the seriousness of the crimes. The legal issues before the court were whether the sentences were manifestly inadequate and whether the orders for cumulation were sufficient. The court noted that the sentences were not wholly outside the range of what could be considered appropriate for the crimes committed, and that the sentences took into account the respondents’ early guilty pleas. The court also noted that the sentences were sufficiently punitive to reflect the seriousness of the crimes.

The court held that the sentences were not manifestly inadequate and dismissed the appeal. The court found that the sentences were not wholly outside the range of what could be considered appropriate for the crimes committed, and that the sentences took into account the respondents’ early guilty pleas. The court also noted that the sentences were sufficiently punitive to reflect the seriousness of the crimes. The court found that the orders for cumulation were sufficient, and that the sentences were appropriate given the circumstances of the case. The court dismissed the appeal and upheld the sentences handed down by the lower court.

Orders