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Morton v The King

Morton v The King

Case [2023] VSCA 175 3 August 2023

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0201

RICHARD MORTON	Applicant
V
THE KING	Respondent

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JUDGES:	Walker JA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2023
DATE OF JUDGMENT:	3 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 175
JUDGMENT APPEALED FROM:	[2022] VCC 1159 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to attempted kidnapping, threat to kill, causing injury recklessly – Total effective sentence of 3 years, 4 months’ imprisonment – Whether manifestly excessive – Delay of 10 years between offending and sentence – Whether sufficient weight given to change in circumstances, rehabilitative perspectives, academic achievements, youth, criminal history and employment prospects – Proper exercise of sentencing discretion – Sentence within range – No error identified – Extension of time in which to apply for leave to appeal sentence refused.

R v Mills [1998] 4 VR 235, Tones v The Queen [2017] VSCA 118, Azzopardi v The Queen (2011) 35 VR 43, R v Boland (2007) 17 VR 300 discussed. Longley v The Queen[2021] VSCA 288 applied.

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Counsel
Applicant:		Mr H Lewis
Respondent:		Ms A Moran
Solicitors
Applicant:	Slink & Keating
Respondent:	Ms R Verdon, Solicitor for Public Prosecutions

WALKER JA:

In January 2022 the applicant pleaded guilty to the following charges:
(a)make threat to kill, contrary to s 20 of the Crimes Act 1958;
(b)attempted kidnapping, contrary to s 321M of the Crimes Act; and
(c)causing injury recklessly, contrary to s 18 of the Crimes Act.
The three charges arose from a single incident. One evening in October 2012 a thirteen year old girl, Tiahna McLachlan, was walking home from a friend’s house. It was around 9.00pm and it was dark. Her route home would take her through a nearby park. As Tiahna was walking along the street, she noticed a man — the applicant — standing on the other side of the road, staring at her. She kept walking and entered the park. After she had entered the park, she noticed a shadow behind her and turned around. She saw the applicant running towards her. He then grabbed her and put his hand across her face. He said to her ‘If you scream I’ll kill you’. Tiahna screamed anyway, and yelled ‘Campbell’ and ‘Shane’ (the names of her mother’s partner and of her next-door neighbour). She bit the applicant’s hand, pulled out some of his hair, and kneed him in the leg. She managed to get free and then ran off, dropping the hair as she ran. She made it home, and told Campbell Haack, her mother’s partner, what had happened. He took his dog and went to the park, but could not see anyone. While he was gone, Tiahna’s mother, Susan Darcy, got home. Tiahna told her what had happened, and Susan noticed some swelling around Tiahna’s lips. Susan then called the police. Police searched the area of the park where the events had occurred, and found a…

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 The King

Details

AGLC: Morton v The King [2023] VSCA 175
Case: [2023] VSCA 175
Decision Date: 3 August 2023

CaseChat Overview and Summary

In the matter of Morton v The King, the applicant sought leave to appeal against the sentence imposed by the County Court of Victoria. The applicant had pleaded guilty to charges including attempted kidnapping, threats to kill, and causing injury recklessly. The total effective sentence imposed was 3 years and 4 months’ imprisonment. The applicant contended that the sentence was manifestly excessive, particularly given the 10-year delay between the offending and sentencing. They argued that insufficient weight had been given to their change in circumstances, rehabilitative prospects, academic achievements, youth, criminal history, and employment prospects.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive and whether the sentencing judge had properly exercised their discretion in considering all relevant mitigating factors. The court examined the totality of the circumstances, including the nature and gravity of the offending, the delay in sentencing, and the applicant's personal circumstances and prospects for rehabilitation. The court found that the sentence was within the range of appropriate penalties for the offences committed and that the sentencing judge had appropriately considered all relevant factors. The court held that the applicant had not demonstrated that the sentence was manifestly excessive or that there had been an error in the exercise of sentencing discretion.

The applicant's appeal against sentence was dismissed. The court also refused to extend the time in which the applicant could apply for leave to appeal the sentence. This decision underscores the importance of comprehensive consideration of all relevant mitigating and aggravating factors in sentencing, as well as the significant weight given to the delay between the offence and sentencing. The court found no basis to interfere with the sentence imposed by the County Court of Victoria.

Orders