Qd v Morgan - [2018] ACTSC 157

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	QD v Morgan
Citation:	[2018] ACTSC 157
Hearing Date:	30 May 2018
DecisionDate:	30 May 2018
Before:	Elkaim J
Decision:	See [20]
Catchwords:	APPEAL – GENERAL PRINCIPLES – Appeal against sentence – whether the sentences imposed were manifestly excessive – whether the Magistrate properly considered alternative sentence options – whether the Magistrate erred in failing to give adequate effect to the principle of totality
Cases Cited:	McElholum v Hughes [2016] ACTCA 37
Parties:	QD (Appellant) Taran Morgan (Respondent)
Representation:	Counsel Ms M Keaney (Appellant) Ms M Smith (Respondent)
Solicitors Darryl Perkins Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 12 of 2018
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 23 February 2018 Case Title: Department of Public Prosecutions v [QD] Citation: CC 13654 of 2017

ELKAIM J:

On 23 February 2008, Magistrate Campbell sentenced the appellant as follows:

(a)CC 17/13654 (Contravene Family Violence Order): Conviction recorded; sentenced to the rising of the Court.
(b)CC 17/13655 (Contravene Family Violence Order): Conviction recorded; sentenced to the rising of the Court.
(c)CC 17/13656 (Contravene Family Violence Order): Conviction recorded; sentenced to the rising of the Court.
(d)CC 17/13657 (Contravene Family Violence Order): Conviction recorded; sentenced to the rising of the Court.
(e)CC 17/13658 (Contravene Family Violence Order): Conviction recorded; imprisonment for one month, commencing on 26 December 2017.
(f)CC 17/13659 (Contravene Family Violence Order): Conviction recorded; imprisonment for two months, consecutive on CC17/13658.
(g)CC 17/13660 (Contravene Family Violence Order): Conviction recorded; imprisonment for one month, concurrent with CC 17/13659.
(h)CC 17/13661 (Contravene Family Violence Order): Conviction recorded; imprisonment for two months, consecutive on CC 17/13659.
(i)CC 17/13662 (Contravene Family Violence Order): Conviction recorded; imprisonment for one month, consecutive on CC17/13661.
(j)CC 17/13994 (Contravene Family Violence Order): Conviction recorded; imprisonment for eight months, six months of that period to be consecutive on CC17/13662.
(k)A Non-Parole Period of seven months, from 26 December 2017 to 25 July 2018, the total period of imprisonment being 12 months.

The appellant filed a Notice of Appeal on 23 March 2018. An Amended Notice of Appeal was filed in court today. The grounds in the amended notice are as follows:

(a)That the sentence was manifestly excessive in all respects.
(b)The sentencing Magistrate did not properly consider alternative sentencing options, other than a sentence of fulltime imprisonment with a parole component.
(c)The learned Magistrate erred in failing to adequately give effect to the principle of totality.

The appeal is by way of rehearing. Before there can be any change to the Magistrate’s orders, there must be an identification of error. I state at the outset that I entirely agree with all of the Magistrate’s observations about the seriousness of offences of the type committed by the appellant, the need to protect the victims of domestic abuse and harassment, the need, in circumstances like the present, to send a message of deterrence both to the offender and to the public at large…

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 Qd v Morgan

Details

AGLC: Qd v Morgan [2018] ACTSC 157
Case: [2018] ACTSC 157
Decision Date: 30 May 2018

CaseChat Overview and Summary

The case involved an appeal against the sentences imposed by a Magistrate on the appellant, who had been convicted of drug-related offences. The appellant argued that the sentences were manifestly excessive and that the Magistrate had failed to properly consider alternative sentences and had not adequately applied the principle of totality. The Queensland Court of Appeal heard the appeal.

The primary legal issues before the court were whether the sentences imposed were manifestly excessive, whether the Magistrate properly considered alternative sentence options, and whether the Magistrate erred in failing to give adequate effect to the principle of totality. The court examined the sentencing principles and the relevant case law to determine if the sentences were within the appropriate range and if the Magistrate had adequately exercised their discretion in imposing the sentences.

The court found that the sentences imposed were not manifestly excessive and that the Magistrate had properly exercised their discretion in considering the appropriate punishment for the appellant's offences. The court also held that the Magistrate had adequately considered alternative sentences and had given appropriate effect to the principle of totality. The appeal was dismissed, and the original sentences were upheld.

The final orders of the court were to dismiss the appeal and to uphold the sentences imposed by the Magistrate. The appellant was required to serve the sentences as determined by the original sentencing court.

Orders

Orders of the court

See [20]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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