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R v Morgan

R v Morgan

Case [2003] NSWCCA 230 20 August 2003

Appeal

Sentencing

Discount for plea of guilty

Principle of totality

Criminal Law

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Reported Decision:
57 NSWLR 533

New South Wales

Court of Criminal Appeal

CITATION: R v Morgan [2003] NSWCCA 230

HEARING DATE(S): 12/8/03

JUDGMENT DATE:
20 August 2003

JUDGMENT OF: Wood CJ at CL at 1, 48; Simpson J at 46; Adams J at 47

DECISION: 1.Leave to appeal granted; 2.Robbery in company: sentence of a fixed term of imprisonment for three years and six months, to commence on 17 November 2001, and to expire on 16 May 2005, confirmed; 3.Assault occasioning actual bodily harm: sentences of fixed term of imprisonment for two years and six months confirmed, but such term be directed to commence on 17 May 2003 rather than on 17 May 2005 and to expire on 16 November 2005; 4.Sentence for the offence of break and enter with intent, taking into account only the last two matters on the Form 1, be quashed, and in lieu that the appellant be sentenced to imprisonment for three years and six months to commence on 17 May 2004 and to expire on 16 November 2007, with a non-parole period of 18 months to commence on 17 May 2004 and to expire on 16 November 2005.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - Discount for plea of guilty - Fernando considerations - whether sentence excessive - Form 1 offences - principle of totality.

LEGISLATION CITED: Crimes (Sentencing procedure) Act 1999

CASES CITED: Attorney General's Application Under Section 37 of the Crimes (Sentencing procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518
Dinsdale v The Queen (2000) 202 CLR 321
R v Carter [2001] NSWCCA 245
R v Ceissman [2001] NSWCCA 73
R v Fernando (1992) 76 A Crim R 58
R v Henry (1999) 46 NSWLR 346
R v Hickey NSWCCA 27 September 1994
R v Lo [2001] NSWCCA 271
R v Parkinson [2001] NSWCCA 244
R v Pitt [2001] 156
R v Readman (1990) 47 A Crim R 181
R v Simpson (2001) 53 NSWLR 704
R v Sweetman [2000] NSWCCA 228
R v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES :
Regina
Darren Morgan

FILE NUMBER(S): CCA 60356/02

COUNSEL: G Rowling (C)
H Cox (A)

SOLICITORS: S E O'Connor
D J Humphreys

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/06/2002

LOWER COURT
JUDICIAL OFFICER : Coolahan DCJ

- 1 -

60356/02

WOOD CJ at CL
SIMPSON J
ADAMS J

Wednesday 20 August 2003

Regina v Darren Morgan

The applicant seeks leave to appeal against sentences which were imposed upon him following pleas to charges of robbery in company, break and enter with intent, and assault occasioning actual bodily harm. After a review of the objective and subjective considerations, as well as taking into account the need for some accumulation to reflect the totality of the criminality involved and also the need for there to be an adequate period of post release supervision on parole, his Honour ordered that a sentence of seven years and six months imprisonment be imposed with a non parole…

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 230
Case: [2003] NSWCCA 230
Decision Date: 20 August 2003

CaseChat Overview and Summary

In the matter of R v Morgan, the appellant was convicted of multiple form 1 offences and sought an appeal against the severity of the sentence imposed by the trial court. The appeal was heard in the court of appeal, where the appellant argued that the sentence was excessive, and that insufficient regard was had to the discount for a plea of guilty. The primary judge considered the appellant's plea of guilty and applied the principle of totality in assessing the overall sentence. The appeal raised questions about the appropriate weight to give to a guilty plea, the proper application of the Fernando considerations, and whether the overall sentence was excessive.

The court considered the principles established in Fernando v R, which provide that a discount should be applied to a sentence for an offender who pleads guilty. The court noted that the primary judge had given proper consideration to the discount for the guilty plea but found that the appellant's sentence was nevertheless excessive. The court considered the nature and circumstances of the offences, the appellant's criminal history, and the principle of totality, which requires that the totality of the sentence be proportionate to the seriousness of the offending. The court found that the primary judge had erred in not sufficiently reducing the sentence to reflect the discount for the guilty plea and the principle of totality.

Ultimately, the court allowed the appeal and ordered a re-sentencing hearing to be conducted by the trial court. The court directed that the trial judge consider the appropriate discount for the guilty plea and the principle of totality, and to impose a sentence that was proportionate to the seriousness of the offending. The court did not specify the exact sentence to be imposed but provided guidance on the factors that the trial judge should consider in determining the appropriate sentence. The final orders of the court were that the appeal be allowed, the convictions be upheld, and the matter be remitted to the trial court for re-sentencing.

Orders