Morrison v The Queen - [2014] NSWCCA 199

Court of Criminal Appeal

New South Wales

Case Title: Morrison v R

Medium Neutral Citation: [2014] NSWCCA 199

Hearing Date(s): 15.09.2014

Decision Date: 01 October 2014

Before: Hoeben CJ at CL at [1]
Fullerton J at [37]
Adamson J at [38]

Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - two counts of detain for advantage in circumstances of special aggravation - two young men detained for different periods by applicant and her partner and subjected to substantial physical and psychological abuse - high level of objective seriousness and moral culpability - sentences not shown to be manifestly excessive - level of accumulation within the sentencing discretion of judge - appeal dismissed.

Legislation Cited: Crimes Act 1900 - s59(1),s61, s83(3)
Criminal Appeal Act 1912 - s59(1)

Cases Cited: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
Mill v The Queen [1988] HCA 70;166 CLR 59
Postiglione v R [1997] HCA 26; 198 CLR 296
R v Hammoud [2000] NSWCCA 540
R v Jarrold [2010] NSWCCA 69
R v Speechley [2012] NSWCCA 130

Category: Principal judgment

Parties: Paula Diane Morrison - Applicant
Regina - Respondent Crown

Representation

- Counsel: Counsel:
Mr P Doyle - Applicant
Ms N Adams SC - Respondent Crown

- Solicitors: Solicitors:
G Breton - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2010/394112; 2010/285345

Decision Under Appeal

- Before: Zahra SC DCJ

- Date of Decision: 17 May 2013

- Court File Number(s): 2010/394112; 2010/285345

JUDGMENT

HOEBEN CJ at CL:
Offences and sentence
On 8 August 2012 the applicant pleaded not guilty to all counts on an indictment containing 20 counts. On counts 1 and 2 she was jointly charged with her partner, Mervyn Ferry. Those charges were:
Count 1 - That they detained JA for advantage between 1 May 2007 and 30 August 2009 in circumstances of special aggravation, contrary to s83(3) of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment; and
Count 2 - That they detained NB for advantage between 1 February 2010 and 10 August 2010 in circumstances of special aggravation, contrary to s83(3) of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment.
The circumstances of special aggravation within s83(3) of the Crimes Act 1900 were that the offenders acted together to commit the offences and secondly that they caused actual bodily harm to each victim. Counts 3, 5, 7, 8, 9 and 10 were charges of assault occasioning actual bodily harm upon JA, contrary to s59(1) of the Crimes Act 1900 charged in the alternative to Count 1 against the applicant and Counts 12, 14, 16, 19 and 20 were various assaults upon NB charged contrary to either s61 or s59(1) of the Crimes Act 1900 in the alternative to Count 2 against the applicant. At the end of the Crown case, Counts 11 and 13 were the subject of verdicts by direction.
On 17 October…

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 The Queen

Details

AGLC: Morrison v The Queen [2014] NSWCCA 199
Case: [2014] NSWCCA 199
Decision Date: 01 October 2014

CaseChat Overview and Summary

In Morrison v The Queen, the appellant, a woman, was convicted and sentenced for her involvement in the detention and abuse of two young men. The case came before the court on an appeal against her sentence, specifically challenging the cumulative sentencing for two counts of detain for advantage in circumstances of special aggravation. The court was tasked with determining whether the sentences imposed were manifestly excessive, given the high level of objective seriousness and moral culpability of the crimes.

The legal issues before the court involved the principles of cumulative sentencing and the appropriate range within which a judge's discretion lies. The court had to consider whether the sentences imposed on the appellant reflected the gravity of the crimes and whether they were within the bounds of judicial discretion. The appellant argued that the sentences were excessive, while the prosecution maintained that the sentences were appropriate and within the permissible range.

The court found that the sentences imposed were not manifestly excessive. The judge had considered the high level of objective seriousness and moral culpability of the crimes, as well as the need to deter similar offences. The court held that the appellant's sentences fell within the range of what was appropriate for the crimes committed. The judges concluded that the sentences did not show an abuse of judicial discretion and that the appellant had not demonstrated that the sentences were manifestly excessive.

The orders of the court were to grant leave to appeal but dismiss the appeal. The court found that the sentences were appropriate and did not constitute an abuse of judicial discretion. The appellant's appeal was accordingly dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

This ground of appeal has not been made out.Conclusion There is no complaint as to the sentence on Count 1 and it is conceded that some period of accumulation was applicable. The applicant in effect only received an extra 2 years non-parole period for the very serious criminality caught by Count 2. The orders which I propose are:(1)Leave to appeal granted.(2)Appeal dismissed. FULLERTON J: I agree with Hoeben CJ at CL. ADAMSON J: I agree with Hoeben CJ at CL.**********

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

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Case Title:	Morrison v R
Medium Neutral Citation:	[2014] NSWCCA 199
Hearing Date(s):	15.09.2014
Decision Date:	01 October 2014
Before:	Hoeben CJ at CL at [1] Fullerton J at [37] Adamson J at [38]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW - sentence appeal - two counts of detain for advantage in circumstances of special aggravation - two young men detained for different periods by applicant and her partner and subjected to substantial physical and psychological abuse - high level of objective seriousness and moral culpability - sentences not shown to be manifestly excessive - level of accumulation within the sentencing discretion of judge - appeal dismissed.
Legislation Cited:	Crimes Act 1900 - s59(1),s61, s83(3) Criminal Appeal Act 1912 - s59(1)
Cases Cited:	Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 Mill v The Queen [1988] HCA 70;166 CLR 59 Postiglione v R [1997] HCA 26; 198 CLR 296 R v Hammoud [2000] NSWCCA 540 R v Jarrold [2010] NSWCCA 69 R v Speechley [2012] NSWCCA 130
Category:	Principal judgment
Parties:	Paula Diane Morrison - Applicant Regina - Respondent Crown
Representation
- Counsel:	Counsel: Mr P Doyle - Applicant Ms N Adams SC - Respondent Crown
- Solicitors:	Solicitors: G Breton - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s):	2010/394112; 2010/285345
Decision Under Appeal
- Before:	Zahra SC DCJ
- Date of Decision:	17 May 2013
- Court File Number(s):	2010/394112; 2010/285345