Morrison v The Queen - [2015] VSCA 249

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0265

SAMUEL MORRISON	Applicant
V
THE QUEEN	Respondent

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JUDGES:	PRIEST JA, KAYE JA AND ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 September 2015
DATE OF JUDGMENT:	15 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 249
JUDGMENT APPEALED FROM:	The Queen v Samuel Morrison (Unreported), Supreme Court of Victoria, Justice Coghlan, 10 September 2014).

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Murder – Sentence of 19y 6m for murder – Sentence of 12 months for intentionally causing serious injury – Total effective sentence 20y, non-parole period 16y 6m – Whether sentence for murder manifestly excessive – Grave circumstances of offending – Whether mitigating factors given sufficient weight – Substantial mitigating factors – Applicant suffered from personality disorder – Applicant from disadvantaged background – Bugmy v R (2013) 249 CLR 571 followed – Sentence within range – Application for leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin with Mr P Smallwood	Victoria Legal Aid
For the Crown	Ms F Dalziel	Office of Public Prosecution

PRIEST JA:

I agree with Kaye JA.

KAYE JA:

The applicant was charged with one count of intentionally causing serious injury to Lochlan McCowan, and one count of the murder of Dylan McCowan, at Orbost on 22 February 2013. He pleaded guilty to the first charge of intentionally causing serious injury. On his trial, the jury convicted him of the charge of murder. Following a plea, the judge sentenced the applicant to a term of 12 months’ imprisonment on charge 1, and a term of 19 years and six months’ imprisonment on charge 2. He directed that six months of the sentence on charge 1 be served concurrently with the sentence on charge 2, so that the total effective sentence was 20 years’ imprisonment. The judge fixed a non-parole period of 16 years and six months.

Circumstances of offending

The offences had their genesis in an incident that occurred at the Commonwealth Hotel in Orbost on 17 November 2012, in which the applicant was assaulted. As a result of the incident, he sustained injuries, including shoulder pain and several grazes. A police officer who attended noted that the applicant appeared to be very emotional. The applicant believed that he had been unfairly discriminated against and abused by the publican, staff and others present, and that he had been unfairly dealt with by the police who arrested him.

Ethan McCowan was at the Commonwealth Hotel when the applicant was assaulted. Although he witnessed the event, he was not involved in it in any way. The applicant formed the view that a member of the McCowan family had been involved in the attack on him, and that his house keys had been stolen during that incident.

Three months later, at about 12.30 pm on 22 February 2013, Lochlan McCowan walked past the applicant’s house. The applicant approached him and asked him…

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: Samuel Morrison v The Queen [2015] VSCA 249
Case: [2015] VSCA 249
Decision Date: 15 September 2015

CaseChat Overview and Summary

The case of Morrison v The Queen involved an appeal against sentence, where the applicant challenged the severity of the sentence imposed for murder and the related charge of intentionally causing serious injury. The case was heard in the High Court of Australia. The applicant, convicted of murder and intentionally causing serious injury, was sentenced to 19 years and 6 months for the murder charge and 12 months for the serious injury charge, resulting in an effective total sentence of 20 years with a non-parole period of 16 years and 6 months.

The central legal issues before the court were whether the sentence for murder was manifestly excessive and whether the mitigating factors had been adequately considered. The applicant argued that the sentence was excessively harsh given the mitigating factors present in his case, such as his personality disorder and disadvantaged background. The court had to determine if the sentence was within the appropriate range considering these circumstances, drawing on the principles set out in Bugmy v R.

In its reasoning, the court acknowledged that the applicant's offending was grave, but it also recognised the substantial mitigating factors. The court held that while the sentence for the murder charge was severe, it was not so disproportionate as to be manifestly excessive. The court concluded that the totality principle, which considers the overall sentence rather than individual components, supported the sentence imposed. The court found that the mitigating factors were appropriately considered and that the sentence was within the appropriate range. Consequently, the application for leave to appeal was granted but the appeal itself was dismissed.

Orders