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Morrison v Maher (No 2)

Morrison v Maher (No 2)

Case [2022] ACTSC 63 1 April 2022

Criminal Liability

Sentencing

Contravene Family Violence Order

Stalking

Assault

Trespass

Non-consensual Distribution of Intimate Images

Using Carriage Service to Harass

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Morrison v Maher (No 2)
Citation:	[2022] ACTSC 63
Hearing Dates:	15 December 2021 and 29 March 2022
DecisionDate:	1 April 2022
Before:	Mossop J
Decision:	See [185]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – resentence following appeal against Magistrates Court sentence – 13 series of domestic violence-related offences – offending ranged from low to above the mid-range of objective seriousness – no criminal history – pleas of guilty – history of bipolar disorder and methamphetamine dependence – strong employment history – high risk of general reoffending – sentences of imprisonment imposed – fines imposed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), Pt 5.2, ss 10, 64, 71, 72 Crimes (Sentence Administration) Act 2005 (ACT), s 116C(3) Crimes Act 1900 (ACT), ss 24, 26, 27(3)(a), 35, 44, 72C, 381(1), 713(1) Crimes Act 1914 (Cth), ss 19, 19AC Criminal Code Act 1995 (Cth), s 474.17(1) Criminal Code 2002 (ACT), ss 44, 403, 713 Family Violence Act 2016 (ACT), s 43(2) Magistrates Court Act 1930 (ACT), ss 208(e), 214 Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)
Cases Cited:	Betts v The Queen [2016] HCA 25; 258 CLR 420 Cherry v R [2017] NSWCCA 150 Morrison v Maher [2021] ACTSC 312 Ndlovu v The Queen [2018] ACTCA 33; 336 FLR 307 Penelope Maher v Sonney Morrison [2020] ACTMC 26 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Verdins [2007] VSCA 102; 16 VR 269
Parties:	Sonney Morrison ( Appellant) Penelope Maher and David McDonald ( Respondent)
Representation:	Counsel Self-represented ( Appellant) T Hickey ( Respondent)
Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 4 of 2021
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 17 December 2020 Case Title: Penelope Maher v Sonney Morrison Citation: [2020] ACTMC 26

MOSSOP J:

Introduction

For the reasons given in Morrison v Maher [2021] ACTSC 312, it is necessary to resentence Mr Morrison on 30 charges. Those charges are set out in the following table.

Series	Sequential charge number	Charge	Offence date	Statute contravened	Maximum penalty
A	1	CC2019/5474: assault occasioning actual bodily harm	September 2011	s 24 of the Crimes Act 1900 (ACT) (ACT Crimes Act)	5 years’ imprisonment
B	2	CC2019/5475: damaging property	November 2016	s 403(1) of the Criminal Code 2002 (ACT) (ACT Criminal Code)	1000 penalty units, 10 years’ imprisonment or both
B	3	CC2019/5476: assault occasioning actual bodily harm	November 2016	s 24 of the ACT Crimes Act	5 years’ imprisonment
B	4	CC2019/5477: possess offensive weapon with intent	November 2016	s 381(1) of the ACT Crimes Act	$2000, 1 year’s imprisonment or both
C	5	CC2019/5478: act endangering life (choke/render insensible)	22 – 25 December 2016	s 27(3)(a) of the ACT Crimes Act	10 years’ imprisonment
C	6	CC2019/5479: assault occasioning actual bodily harm

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 Morrison v Maher (No 2)

Details

AGLC: Morrison v Maher (No 2) [2022] ACTSC 63
Case: [2022] ACTSC 63
Decision Date

CaseChat Overview and Summary

Sonney Morrison appeals against his sentence imposed by the Magistrates Court of the ACT. He was sentenced to a total of nine years and four months imprisonment, with a non-parole period of five years and eight months. The appeal is heard by Mossop J. The appeal was allowed and the appellant was resentenced to a total of nine years, four months and 26 days imprisonment, with a non-parole period of three years, eight months and 10 days. The appeal was allowed because the Magistrates Court erred in its assessment of the objective seriousness of some of the offences, in particular the offences of non-consensual distribution of intimate images, damaging property, and possessing an offensive weapon with intent. The court also erred in its calculation of the non-parole period. The court considered the offending involved a sustained course of domestic violence and the appellant had a difficult childhood and an underlying mental health condition. The court decided that the need for general deterrence and denunciation of the offending were important factors. The appellant's prospects of rehabilitation were difficult to assess because the behaviours evidenced in the offending were of a nature that was likely to be entrenched. The court found that the appellant's mental health condition was a significant part of his subjective circumstances but did not reduce his culpability for the offending. The court imposed a sentence of imprisonment for all offences except for trespass and damaging property, for which fines were imposed.

Orders