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Morgan v R

Morgan v R

Case [2017] NSWCCA 269 22 November 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Morgan v R [2017] NSWCCA 269
Hearing dates: 7 August 2017
Decision date: 22 November 2017
Before: Macfarlan JA at [1];
Davies J at [73];
Button J at [74]
Decision:
(1)   To the extent that the applicant challenges his convictions on grounds involving errors of law, dismiss the appeal.

(2)   To the extent that the applicant challenges his convictions on grounds not alleging errors of law alone, dismiss his application for leave to appeal against his convictions.
(3)   Dismiss the application for leave to appeal against sentence.
Catchwords:
CRIME – historic child sexual offences – charge of sexual intercourse without consent upon a person under 16 years – s 61D Crimes Act 1900 (NSW) (since repealed) – whether open to jury to be satisfied that applicant was reckless as to whether complainant consented – consideration of meaning of terms “consent” and “reckless”
SENTENCING – appeal against sentence – historic child sexual offences – whether sentencing judge did not properly assess the objective seriousness of the offending – whether sentencing judge did not correctly apply relevant historical sentencing practice when fixing non-parole period – whether sentencing judge erred in giving weight to general deterrence
Legislation Cited: Crimes Act 1900 (NSW), s 61D
Criminal Appeal Act 1912 (NSW), s 5(1)
Cases Cited: AJB v R [2007] NSWCCA 51
Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Castle v The Queen (2016) 92 NSWLR 17; [2016] NSWCCA 148
Dean v Phung [2012] NSWCA 223
Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kennedy v R [2017] NSWCCA 193
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Magnuson v R [2013] NSWCCA 50
Majid v R [2010] NSWCCA 121
McGrath v The Queen (2010) 199 A Crim R 527; [2010] NSWCCA 48
Mulato v R [2006] NSWCCA 282
Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Kilic (2016) 91 ALJR 131; [2016] HCA 48
R v McEwan [1979] 2 NSWLR 926
R v Morgan [1976] AC 182
Sabongi v The Queen (2015) 249 A Crim R 167; [2015] NSWCCA 25
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Wilson v R [2017] NSWCCA 41
Texts Cited: Watson & Purnell Criminal Law in New South Wales, (1982, The Law Book Company Limited)
Category: Principal judgment
Parties: Reginald Geoffrey Morgan (Applicant)
Regina (Respondent)
Representation:
Counsel:
A J Bellanto QC (Applicant)
H Roberts (Respondent)
Solicitors:
RMB Galland Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/215434
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of…

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 Morgan v R

Details

AGLC: Morgan v The Queen [2017] NSWCCA 269
Case: [2017] NSWCCA 269
Decision Date: 22 November 2017

CaseChat Overview and Summary

The applicant, Morgan, appealed against his conviction and sentence for sexual intercourse without consent upon a person under 16 years, pursuant to section 61D of the Crimes Act 1900 (NSW). The appeal was heard in the High Court of Australia. The central issue before the court was whether it was open to the jury to be satisfied that the applicant was reckless as to whether the complainant consented, and whether the terms “consent” and “reckless” were correctly applied in the context of this offence. Additionally, the court considered whether the sentencing judge properly assessed the objective seriousness of the offending, correctly applied relevant historical sentencing practices, and appropriately weighed the principle of general deterrence.

The court held that the jury could be satisfied that the applicant was reckless as to whether the complainant consented, provided the recklessness was in relation to the complainant's actual consent or lack of it. The court clarified the meaning of the term "reckless" in this context, stating it meant a conscious disregard of a known risk that the complainant did not consent. In relation to sentencing, the court found that the sentencing judge had correctly assessed the objective seriousness of the offending and applied relevant historical sentencing practices. However, the court did find that the sentencing judge had erred in giving excessive weight to the principle of general deterrence, which led to an overestimation of the non-parole period. Consequently, the appeal against sentence was allowed, and the matter was remitted to the sentencing judge for reconsideration of the non-parole period.

In light of the above, the High Court allowed the appeal against sentence but not the appeal against conviction. The non-parole period was to be reconsidered by the sentencing judge, taking into account the correct application of the principle of general deterrence. The conviction was upheld, and Morgan remained liable to serve the remaining sentence as determined by the sentencing judge on remand.

Orders