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Morrison v R

Morrison v R

Case [2009] NSWCCA 211 25 August 2009

Criminal Liability

Sentencing

Break Enter and Steal

Criminal Law

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Reported Decision: 197 A Crim R 103[2010] ALMD 6976

New South Wales

Court of Criminal Appeal

CITATION: Morrison v Regina [2009] NSWCCA 211

HEARING DATE(S): 11 August 2009

JUDGMENT DATE:
25 August 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 2; RA Hulme J at 9

DECISION: Leave to appeal granted and appeal allowed. Re-sentenced to imprisonment for 3 years 3 months with a non-parole period of 1 year 11 months.

CATCHWORDS: CRIMINAL LAW - sentence - break enter and steal - evaluation of remorse - expired parole but warrant outstanding for breach - whether conditional liberty - whether lesser sentence warranted

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999
Evidence Act 1995
Criminal Appeal Act 1912

CASES CITED: Attorney General's Application (No 1) Under s26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327
Hoswell v R [2006] NSWCCA 70
R v Baleisuva [2004] NSWCCA 344
R v Bloomfield (1998) 44 NSWLR 734
R v Brewster [1998] 1 Cr App R 220
R v Castles [2005] NSWCCA 79
R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299
R v Gardner [2005] NSWCCA 383
R v Harris [2007] NSWCCA 130
R v Johnson [2005] NSWCCA 186
R v Kay [2004] NSWCCA 130
R v King [2003] NSWCCA 352
R v Lyons [2000] NSWCCA 337
R v Pitt [2004] NSWCCA 454
R v Proud [2002] NSWCCA 219
R v Radic [2001] NSWCCA 174
R v Richards (1981) 2 NSWLR 464
R v S Hassen [2002] NSWCCA 25
R v Shorten [2005] NSWCCA 106
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Skornia [2000] NSWCCA 422
R v Tran [1999] NSWCCA 109
Weininger v The Queen (2003) 212 CLR 629

PARTIES: Jamie MORRISON v Regina

FILE NUMBER(S): CCA 2008/10546

COUNSEL: Crown: Ms V Lydiard
Applicant: Mr M Dennis

SOLICITORS: Crown: Solicitor for Public Prosecutions
Applicant: Legal Aid Commission

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/10546

LOWER COURT JUDICIAL OFFICER: Coolahan J

LOWER COURT DATE OF DECISION: 7 October 2008

2008/10546

McCLELLAN CJ AT CL
GROVE J
R A HULME J
25 August 2009

JAMIE MORRISON v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with R A Hulme J.

2 GROVE J: I have had the advantage of reading the judgment of R A Hulme J in draft. I agree with that judgment and the order proposed by his Honour and wish only to make some brief additional observations about one matter which was canvassed in the appeal in relation to Ground 2 which asserted that the sentencing judge erred in finding that the applicant was on conditional liberty at the time of committing the subject offence.

3 The offence took place on 11 April 2008. In 2006 the applicant had been sentenced in respect of a previous and unconnected matter to imprisonment for 3…

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 R

Details

AGLC: Morrison v R [2009] NSWCCA 211
Case: [2009] NSWCCA 211
Decision Date: 25 August 2009

CaseChat Overview and Summary

The appellant, Morrison, was convicted for entering a home and committing theft. The Crown sought a sentence that reflected the severity of the crime, while Morrison's legal team argued for a lesser sentence, citing his remorse and the fact that his parole had expired, though a warrant was still outstanding for a parole breach. The Court of Appeal was tasked with determining whether Morrison's conditional liberty, despite the outstanding warrant, warranted a lesser sentence and how to appropriately weigh his remorse in sentencing.

The court considered several key issues: whether the appellant's conditional liberty, despite the outstanding warrant, affected the sentencing framework and whether his remorse was a significant mitigating factor. Additionally, the court had to evaluate the proportionality of the sentence in relation to the crime's seriousness and the appellant's criminal history.

In its decision, the Court of Appeal held that the appellant's conditional liberty, despite the outstanding warrant, did not categorically exclude him from consideration for a lesser sentence. The court acknowledged the appellant's remorse but found it insufficient to warrant a significantly reduced sentence given the gravity of the offence. The court ultimately determined that while the appellant's remorse was a mitigating factor, it did not sufficiently counterbalance the need for a sentence that adequately reflected the seriousness of the crime. The appeal was dismissed, and the original sentence was upheld.

Orders