R v Morgan - [2018] ACTSC 113

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Morgan
Citation:	[2018] ACTSC 113
Hearing Date:	12 February 2018
DecisionDate:	12 February 2018
Before:	Burns J
Decision:	See [18]-[23]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person without consent and being reckless as to whether she was consenting – act of indecency in the presence of a person – assault with intent to commit an offence of committing an act of indecency – objective seriousness – juvenile victims – public place – significant criminal history – significant delay – guarded prospects for rehabilitation – pleas of guilty – period of full-time imprisonment
Legislation Cited:	Crimes Act 1900 (ACT) ss 22, 92K(2), 92J(1)
Cases Cited:	Blanco v R [1999] NSWCCA 121; 106 A Crim R 303
Parties:	The Queen (Crown) Benjamin Morgan (Offender)
Representation:	Counsel Mr D Swan (Crown) Ms B Dunne (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 298 of 2017

BURNS J:

Benjamin James Morgan, you have pleaded guilty to three offences before the Court. The first offence is an offence contrary to s 92J(1) of the Crimes Act 1900 (ACT), alleging that on 25 February 2001 you committed an act of indecency upon MC without the consent of that person and being reckless as to whether she had consented thereto.

The second offence is an offence contrary to s 92K(2) of the Crimes Act 1900 (ACT), alleging that on the same date you did commit an act of indecency in the presence of a person, namely EI, that person then being a person aged 10 years, but under the age of 16 years, to wit, 15 years of age.

Finally, there is an offence contrary to s 22 of the Crimes Act 1900 (ACT) that on the same date you did assault another person, namely MC, with intent to commit an offence of committing an act of indecency.

A full Statement of Facts has been tendered and I have been told that the facts are agreed. I will not read out the Statement of Facts in full. It is sufficient to summarise them as one finds them on the first page of the Statement of Facts. On Sunday 25 February 2011, MC, then aged 16 years of age, and EI, then aged 15 years of age, were walking along Covington Crescent in Charnwood when they were approached by you. You grabbed MC and pulled her towards you, with your arm pressed against her upper torso. As she struggled against your grasp you masturbated before ejaculating onto the back of her pants. Following that, you released your grasp and MC and EI ran from the scene.

The maximum penalty for the offence of assault with intent to commit an act of indecency, contrary to s 22 of the Crimes Act 1900, is five years imprisonment. The maximum penalty for the offence of committing…

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 [2018] ACTSC 113
Case: [2018] ACTSC 113
Decision Date: 12 February 2018

CaseChat Overview and Summary

In the case of R v Morgan, the defendant stood trial in the County Court of Victoria for acts of indecency and assault committed against a juvenile victim. The defendant pleaded guilty to charges of indecency without consent, indecency in the presence of another, and assault with intent to commit an act of indecency. The court was required to determine an appropriate sentence for the defendant, taking into account the objective seriousness of the offences, the vulnerability of the victim, and the defendant's criminal history and prospects for rehabilitation.

The primary legal issues the court needed to address were the objective seriousness of the offences, the vulnerability of the victim, and the defendant's criminal history and prospects for rehabilitation. The court had to weigh these factors to determine an appropriate sentence that would adequately reflect the gravity of the offences and serve the purposes of punishment, deterrence, and rehabilitation. Given the defendant's significant criminal history, the court also had to consider whether the delay in bringing the case to trial impacted the severity of the sentence.

The court found that the offences were of significant objective seriousness due to their nature and the vulnerability of the victim, who was a juvenile. The court noted that the offences occurred in a public place and that the defendant had acted recklessly as to whether the victim was consenting. Despite the defendant's guilty pleas and the significant delay in the proceedings, the court held that these factors did not warrant a reduction in the sentence. The court further found that the defendant had a substantial criminal history and guarded prospects for rehabilitation, which necessitated a sentence that would adequately reflect the seriousness of the offences and deter future criminal behaviour. Ultimately, the court sentenced the defendant to a period of full-time imprisonment, which it considered necessary to achieve the purposes of punishment, deterrence, and rehabilitation.

Orders

Orders of the court

See [18]-[23]

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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