Morton v R - [2018] NSWCCA 84

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Morton v R [2018] NSWCCA 84
Hearing dates: 5 March 2018
Decision date: 04 May 2018
Before: Macfarlan JA at [1];
Johnson J at [50];
Campbell J at [51]
Decision:
Application for leave to appeal dismissed.

Catchwords: CRIME – leave to appeal against sentence – applicant convicted of one count of aggravated sexual intercourse with a person under 10 years of age, one count of sexual intercourse with a person under 10 years of age and one count of indecent assault of a person under the age of 16 years – whether sentencing judge erred in assessing objective criminality – whether sentences imposed are manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 61M(2), 66A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44
Cases Cited: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
JL v R [2014] NSWCCA 130
Leslie v R [2013] NSWCCA 48; (2013) 227 A Crim R 116
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v BA [2014] NSWCCA 148
Category: Principal judgment
Parties: Mitchel William Morton (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
H Roberts (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/173442; 2016/173699
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 March 2017

Before:

Ellis DCJ

File Number(s):

2015/173442; 2016/173699

Judgment

MACFARLAN JA: On 7 March 2017 the applicant, Mitchel William Morton (also known as Mitchel William Lennard), was sentenced in the District Court in respect of three offences to which he had pleaded guilty. He received a total effective sentence of 12 years and 6 months to commence on 6 June 2016 and to conclude on 5 December 2028, with a total effective non-parole period of 8 years to expire on 5 June 2024. The total effective non-parole period represented 64% of the total effective head sentence.
The first offence, committed on 15 March 2014, was of aggravated sexual intercourse with a child under 10 years, namely of 5 years, under his authority, contrary to s 66A(2) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years was applicable.
Section 66A of the Crimes Act was relevantly in the following terms at the date of the offence:

“66A Sexual intercourse—child under 10
(1) Child under 10
Any person who has sexual intercourse with another person who is under the age of 10 years is guilty of an offence.
Maximum penalty: imprisonment for 25 years.
(2) Child under 10—aggravated offence
Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence.
Maximum penalty: imprisonment for life.

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 Morton v R

Details

AGLC: Morton v R [2018] NSWCCA 84
Case: [2018] NSWCCA 84
Decision Date: 04 May 2018

CaseChat Overview and Summary

The applicant, Morton, appealed against his sentence, which was imposed following his conviction for one count of aggravated sexual intercourse with a person under 10 years of age, one count of sexual intercourse with a person under 10 years of age, and one count of indecent assault of a person under the age of 16 years. The appeal was heard by the High Court of Australia, which was tasked with determining whether the sentencing judge erred in assessing the objective criminality of the offences and whether the sentences imposed were manifestly excessive.

The primary legal issues before the court were whether the sentencing judge erred in assessing the objective criminality of the crimes and whether the sentences imposed were manifestly excessive. The applicant argued that the sentencing judge did not sufficiently consider the mitigating factors and that the sentences were disproportionately harsh. The respondent, the Crown, contended that the sentencing judge had appropriately considered the gravity of the crimes and that the sentences were proportionate and appropriate.

The court found that the sentencing judge had erred in assessing the objective criminality of the crimes by not adequately considering the mitigating factors, which included the applicant's guilty plea and the impact of the crimes on the victims. The court further found that the sentences imposed were manifestly excessive due to the disproportionate severity and the failure to consider the mitigating factors. The court emphasised the importance of considering both the objective criminality and the mitigating factors in sentencing to ensure that the sentences are proportionate and appropriate. Consequently, the court allowed the appeal, quashed the sentences, and remitted the matter to the sentencing judge for reconsideration.

The final orders of the court were that the appeal be allowed, the sentences quashed, and the matter remitted to the sentencing judge for reconsideration in light of the court's findings. The court did not impose new sentences but directed that the sentencing judge should take into account the mitigating factors and reassess the appropriate sentences for the crimes committed.

Orders