THE CHIEF JUSTICE: The Honourable the Attorney-General appeals against a sentence of six years imprisonment imposed on each of the respondents for the offence of doing grievous bodily harm. They pleaded guilty to that and other offences: in the case of King, assault occasioning bodily harm, deprivation of liberty, assault occasioning bodily harm in company and two instances of burglary; and in the case of Morgan, deprivation of liberty and assault occasioning bodily harm in company, nine instances of breaking, entering and stealing, one of receiving and five of entering premises and committing indictable offences. The property offences were in each case committed on another occasion or other occasions from the offences in relation to grievous bodily harm. All terms are to be served concurrently.

It is sufficient to focus now on the grievous bodily harm offence which attracted the six year term without any added serious violent offence declaration. That offence was committed at Cairns on 12th April 2001 upon a 40 year old female complainant. At the time King was 28 years old. He had an extensive criminal history including crimes of violence, particularly rape and assault occasioning bodily harm, committed in 1996 for which in July 1998 he was sentenced to five and a half years imprisonment

At the time he committed these offences he was on parole. Morgan was then 23 years old. He had a considerable prior criminal history for drug and dishonesty offences although no violence. He had previously been imprisoned for nine months for breaches of probation. The learned sentencing Judge sentenced the offenders to the same term. That was justified. Although King was older and had a more extensive relevant criminal history and initiated the attack, Morgan carried out more of the serious assaults on the complainant and was concurrently being sentenced for a wider gamut of dishonesty offences.

The respondent's attack on the complainant was irrationally motivated and prolonged and brutal in execution. It was torturous in character. At the time the respondents were intoxicated by alcohol and drugs although that, of course, is not a mitigating feature when it comes to sentence. The assault upon the complainant included a threat that she would be killed by someone or other and it ended in her being left unconscious and naked within a car by a public road, likely to die if not rescued. The respondents severely bashed her and beat her variously with metal torches and a small axe or hammer. She required considerable subsequent medical treatment, suturing, as well as an operation to repair damage done to the tendons in her leg. Her ear was partially severed. She is left with cosmetic disfigurement. Three teeth needed replacing. She endures substantial consequential psychological problems.

I must now come to the…

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 R v King & Morgan; ex parte

Details

AGLC: R v King & Morgan; ex parte [2002] QCA 376
Case: [2002] QCA 376
Decision Date: 23/09/2002

CaseChat Overview and Summary

In the case of R v King & Morgan, the Court of Appeal was asked to review the sentence imposed on the respondents for the offence of grievous bodily harm. The respondents, King and Morgan, had pleaded guilty to the offence, as well as to other related charges. The attack on the complainant was brutal and prolonged, lasting for several hours and involving the use of weapons. The respondents were intoxicated at the time of the offence, which, although not a mitigating factor, was a circumstance of the crime. The learned sentencing judge had imposed a sentence of six years imprisonment for the grievous bodily harm offence, which was to be served concurrently with sentences for other offences. The Attorney-General appealed against this sentence, arguing it was too lenient.

The legal issues before the Court were whether the sentence imposed was appropriate in the circumstances, and whether a declaration should have been made under the serious violent offender regime. The Court noted that while the respondents had pleaded guilty and shown remorse, the offence was of a serious and violent nature, involving prolonged beatings, the use of weapons, and leaving the complainant in a vulnerable and potentially lethal situation. The Court considered various precedent cases to determine an appropriate sentence range, and concluded that the learned judge had erred in not imposing a more severe sentence and in not making a declaration under the serious violent offender regime.

The Court held that the respondents should have been sentenced to at least eight years imprisonment for the grievous bodily harm offence, taking into account the mitigating factors of their guilty pleas. However, considering the nature of the appeal by the Attorney-General, the Court moderated this to six years imprisonment with an added declaration that the respondents had been convicted of a serious violent offence. This meant that the respondents would have to serve at least 4.8 years for the grievous bodily harm offence, which represented a substantial increase on the original sentence. The Court emphasised that this sentence should be seen as moderate in future cases of similar gravity.

The order of the Court was that the appeal be allowed and that to the sentence of six years' imprisonment in respect of each respondent for the offence of doing grievous bodily harm, there be added a declaration in each case that the respondent has been convicted of a serious violent offence.

Orders