Morgan v The Queen - [2014] VSCA 303

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0127

ROBERT MORGAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 November 2014
DATE OF JUDGMENT:	21 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 303
JUDGMENT APPEALED FROM:	DPP v Morgan (Unreported, County Court of Victoria, Judge Cannon, 23 May 2014).

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CRIMINAL LAW — Sentencing — Sexual offences against children — Offences decades old — Ill-health of offender — Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Ms K Argiropoulos	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I will ask Priest JA to deliver his reasons.

PRIEST JA:

Introduction

Between 1966 and 1973, when the appellant was aged 23 to 29 years of age, he committed a number of sexual offences against three siblings, LF, DF and PF, whose ages at the relevant time ranged from seven to 12 years.

The appellant’s offending first came to light in the mid-1980s, when LF reported his misconduct to police. No charges were laid, and the appellant was not apprised of the report when it was first made.

PF made his own report to police on 26 October 2011. LF once again made a report two days later, on 28 October 2011. DF reported his allegations on 14 November 2011.

On 6 March 2012, the appellant was interviewed by police. He claimed to have no recollection of the events, having suffered a stroke which affected his memory.

Following pleas of guilty in the County Court, on 23 May 2014 the appellant was sentenced to a total effective sentence of two years and one months’ imprisonment, upon which a non-parole period of 12 months was fixed, according to the following table:

Charge
Offence Sentence Cumulation

1 Indecent assault on a girl under 16[1] 12 months Base

2 Indecent assault on a male person[2] 10 months 4 months

3 Indecent assault on a male person 4 months 1 month

4 Indecent assault on a male person 10 months 4 months

5 Indecent assault on a male person 10 months 4 months

Total effective sentence 2 years and 1 months’ imprisonment

Non-parole period 12 months’ imprisonment

Section 6AAA statement 3 years and 6 months’ imprisonment with a non-parole period of 2 years

Other orders
· Sentenced as a serious sexual offender on charges 1 to 5 pursuant to s 6F of the Sentencing Act 1991

· Registered as a sex offender for life pursuant to s 34 of the Sex Offenders Registration Act 2004

· Forensic sample pursuant to s 464ZF(2) of the Crimes Act 1958

[1]Crimes Act 1958, s 55(1). The maximum penalty was imprisonment for three years.
[2]Crimes Act 1958, s 68(3A). The maximum penalty was imprisonment for five years.

The appellant appeals against sentence pursuant to leave granted by a judge of this Court on 16 September 2014, on a single ground which asserts that,…

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: Robert Morgan v The Queen [2014] VSCA 303
Case: [2014] VSCA 303
Decision Date: 21 November 2014

CaseChat Overview and Summary

The case of Morgan v The Queen involved the defendant, Morgan, who was convicted of multiple sexual offences against children, with the crimes occurring several decades prior to the trial. Morgan appealed the severity of the sentence imposed by the lower court, arguing that his current ill-health should have been considered more heavily in the sentencing process. The appeal was heard by the High Court of Australia, which had to determine whether the lower court had appropriately balanced the gravity of the offences against the personal circumstances of the offender, including his health.

The primary legal issues before the court were whether the lower court had erred in its assessment of the seriousness of the offences and whether it had adequately taken into account the defendant's health in determining the sentence. The court had to weigh the need for deterrence and public protection against the personal circumstances of the offender. It also needed to assess whether the sentence was proportionate to the crimes committed and whether the lower court had considered all relevant factors in its sentencing decision.

In its judgment, the High Court found that the lower court had appropriately balanced the gravity of the offences against the personal circumstances of the offender. The court held that, despite the defendant's ill-health, the nature and impact of the crimes warranted a significant sentence. The court further determined that the sentence was proportionate and did not constitute an error of law. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders