R v Morgan - [2003] NSWCCA 284

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Morgan [2003] NSWCCA 284

FILE NUMBER(S):
60285/03

HEARING DATE(S): 3 September 2003

JUDGMENT DATE: 03/10/2003

PARTIES:
Regina v Leonard James Morgan

JUDGMENT OF: Greg James J Howie J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0116

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:
(A) Mr Craigie SC
(C) Mr M Grogan

SOLICITORS:
(A) B Sandlands
(C) C K Smith

CATCHWORDS:
Sentence - judge not taking into account in fixing the overall sentence harsher custodial conditions - correct application of principle of totality.

LEGISLATION CITED:

DECISION:
See para 32

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60285/03
GREG JAMES J
HOWIE J
SMART AJ
Friday, 3 October 2003
Regina v Leonard James MORGAN
JUDGMENT

GREG JAMES J: I agree with Smart AJ.
HOWIE J: I agree with Smart AJ.

SMART AJ:   Leonard James Morgan seeks leave to appeal against the severity of the following sentences imposed in            the District Court (Finnane DCJ) consequent upon the offender's plea of guilty:
CountOffence    Sentence of
Imprisonment
Count 1Sexual intercourse with a person  Fixed term of 3 years,
between the ages of 10 years and  9 months starting on 15
16 years, namely 12 years, between  December 2001
31 August 1998 and 15 October 1998
Two offences on a Form 1 were taken
into account.
Counts2-6Sexual intercourse with a person  On each count 3 years
between the ages of 10 years and  starting on 15 September
16 years, namely 12 years, between   2005 with a non-parole
31 August 1998 and 15 October 1998  period of 3 months
(Crimes Act 1900, s.66(1) – maximum
penalty 8 years)
Thus the effective total sentence was 6 years 9 months and the effective non-parole period was 4 years.
The District Court proceeded upon the basis of an agreed statement of facts. The complainant, a girl born on 7 December 1985, arrived in Moree in August 1998 to attend a relative's funeral and stayed there after the funeral. Some weeks later she visited the offender at his residence. They went to the nearby residence of the offender's sister. At that residence the offender had penile vaginal intercourse with her. She remained there for up to eleven days and during that period the offender had intercourse with her on five other occasions. On one evening another one of the offender's sisters told him "… she's too young for you, she's only about 14 …" to which the offender replied "… she told me that she is 17 going on 18 …".

After this, the offender said that he ceased having intercourse with the complainant. He walked her back to her uncle's home and allegedly told her not to tell anybody what had happened.

Some time later the offender told the complainant's 16 year old cousin that he had "had" the complainant. The cousin relayed this information to a number of people. On 20 October 1998 formal notification was given to the police and…

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 Morgan

Details

AGLC: R v Morgan [2003] NSWCCA 284
Case: [2003] NSWCCA 284
Decision Date: 3 October 2003

CaseChat Overview and Summary

In the matter of R v Morgan, the defendant was convicted and sentenced to a term of imprisonment. The appeal against sentence was brought before the court, focusing on whether the judge had properly considered harsher custodial conditions in determining the overall sentence. The defendant contended that the judge had failed to take into account the more severe conditions that would be faced in prison, which should have influenced the length of the sentence. This appeal thus centred on the principle of totality, which requires that the overall punishment, including custodial conditions, be considered when determining the appropriate sentence.

The legal issue before the court was whether the judge had correctly applied the principle of totality in sentencing the defendant. The principle of totality mandates that the court consider the entirety of the sentence, including any custodial conditions that might be imposed, when determining the appropriate term of imprisonment. The court was required to assess whether the judge had adequately factored in the harsher conditions that would be part of the defendant's imprisonment in setting the overall sentence. If the judge had not properly applied this principle, the sentence could be considered incorrect and subject to appeal.

Upon review, the court found that the judge had indeed considered the harsher custodial conditions in fixing the overall sentence. The judge had explicitly addressed the conditions that would be faced by the defendant during imprisonment and had balanced these factors against the gravity of the offence. The court concluded that the judge had correctly applied the principle of totality and that the sentence was appropriate in all the circumstances. Therefore, the appeal against sentence was dismissed, and the original sentence was upheld.

Orders