Morgan v The Queen - [2016] NSWCCA 298

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Morgan v R [2016] NSWCCA 298
Hearing dates: 25 November 2016
Date of orders: 16 December 2016
Decision date: 16 December 2016
Before: Ward JA [1]
Bellew J [2]
Hidden AJ [3]
Decision:
Leave to appeal granted
Appeal dismissed

Catchwords: CRIMINAL LAW – sentence appeal – break, enter and commit serious offence (reckless wounding) – domestic context – applicant and victim living in the same house – applicant breaking into internal room and stabbing the victim – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900
Crimes (Home Invasion) Amendment Act
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa (2010) NSWLR 1
Hili v R (2010) 242 CLR 520 at [59] (538-9), [2010] HCA 45.
House v The King (1936) 55 CLR 499
Markarian v R (2005) 228 CLR 357
R v Johnson (1786) 2 East PC 448
Rex v Wenmouth (1860) 8 Cox CC 348
Category: Principal judgment
Parties: Tamekah Morgan (applicant)
Regina (respondent)
Representation:
Counsel:
Mr M King (applicant)
Ms BK Baker (respondent)
Solicitors:
Solicitor for the DPP
Legal Aid NSW

File Number(s): 2014/291283
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

9 October 2015

Before:

Frearson DCJ

File Number(s):

2014/291283

Judgment

WARD JA: I agree with Hidden AJ.
BELLEW J: I agree with Hidden AJ.
HIDDEN AJ: The applicant, Tamekah Rose Morgan, pleaded guilty in the District Court to a charge of specially aggravated break, enter and commit an indictable offence, namely reckless wounding: an offence under s 112(3) of the Crimes Act 1900, carrying a maximum sentence of 25 years imprisonment and a standard non-parole period of 7 years. The circumstance of special aggravation was the intentional wounding of the victim. She was sentenced to imprisonment for 6 years and 3 months with a non-parole period of 2 years and 9 months. She seeks leave to appeal against that sentence on the ground that it is manifestly excessive.

Facts

The applicant and the victim of the offence (a woman) had been living in an intimate relationship at the victim’s home in Griffith. The victim had two children. Some weeks prior to the commission of the offence the relationship had broken down, but the victim allowed the applicant to continue to live there.
On 3 October 2014, the victim observed that the applicant had become drunk and argumentative. Put shortly, there was an argument which developed into a physical altercation. The victim pushed the applicant, who fell over a couch. The applicant then assaulted the victim, wrestling with her and punching and kicking her. At one point the victim was lying on her back with the applicant on top of her and the victim could not breath and was panicking. In the victim’s words, the applicant was “ranting about the relationship”, saying that she wanted to “be with” the victim.
The victim heard her infant child crying in her bedroom, and the…

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 The Queen

Details

AGLC: Morgan v The Queen [2016] NSWCCA 298
Case: [2016] NSWCCA 298
Decision Date: 16 December 2016

CaseChat Overview and Summary

The appellant was convicted of breaking and entering into a dwelling house with intent to commit an indictable offence, specifically to commit the crime of reckless wounding. The victim and the appellant were living in the same house at the time of the incident. The appellant broke into an internal room and stabbed the victim. The appellant appealed the sentence, arguing that it was manifestly excessive. The case was heard in the High Court of Australia.

The legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that the sentence was manifestly excessive because the trial judge did not take into account all the relevant mitigating factors, such as the domestic context of the incident, the appellant's remorse, and the fact that the victim was also living in the same house. The Crown argued that the sentence was appropriate because the appellant had committed a serious offence, and the trial judge had taken into account all the relevant factors.

The court held that the sentence was not manifestly excessive. The court noted that the trial judge had taken into account all the relevant mitigating factors and had considered the seriousness of the offence. The court also noted that the sentence was within the range of sentences that could be imposed for the offence. The court held that the sentence was not manifestly excessive because it was not so high that it could not be justified by the circumstances of the case. The court also held that the appellant's remorse and the domestic context of the incident were mitigating factors that had been taken into account by the trial judge.

The appeal was dismissed. The sentence imposed by the trial judge was upheld.

Orders