R v Morgan

[1999] QCA 333

99.333

COURT OF APPEAL

McPHERSON JA DERRINGTON J MACKENZIE J

CA No 209 of 1999
THE QUEEN
v.

NORMAN BEN MORGANApplicant

BRISBANE
..DATE 19/08/99
190899 T22/JB M/T COA199/99
McPHERSON JA: The applicant pleaded guilty in the District
Court at Townsville to four counts of assault occasioning
bodily harm. He was sentenced to imprisonment for five
years for each offence with a recommendation for parole
after two years. The applicant is a resident of Palm Island
and all the offences were committed against women on the
island on dates in October 1997, November 1997 and January
1998, when the last two offences were committed.

The first of the four offences was directed against a 19-year-old woman who was an acquaintance, but no more, of the applicant. She was dragged off the street and punched about the face three times. After falling to the ground she was kicked three or four times. The applicant then ordered her to accompany him to a house where he punched her again.

She sustained bruises and injuries, in the form of

lacerations and so on, to her cheeks, her lip and her back,
and also sustained a black eye or black eyes. The applicant
was arrested in relation to that offence and released on

bail.

He then proceeded to commit another offence of this kind in
November 1997. The victim on this occasion was a 25-year-
old woman, who was his former de facto wife. He landed
three to four punches to her head and one to her ribs. She
suffered much the same injuries as the complainant on count
1. She had been the victim of assaults by the applicant
when they were together in 1993 and 1994, and there were
domestic violence orders between them at one time, which he
190899 T22/JB M/T COA199/99
breached by injuring her again. I am referring to the
period when they were together as de facto man and wife.
The assault on this complainant in November 1997 seems to
have been the chance result of meeting her.

So far as the third complainant is concerned, the offences in this instance were directed against another woman, this time one aged 26. The assaults occurred on consecutive days in January 1998. They were of much the same character, nature and effect and had similar consequences in terms of injuries as those I have described in the case of the other two complainants. There is this difference about the second of the two offences committed on her in January 1998, that it arose out of her having reported the first assault to the police. The applicant then assaulted her again because of her temerity in reporting the assault of the previous day.

He is a man now aged about 30 and he was 28 or 29 years old at the time of the offences in question. He has a considerable record of offences of this kind. He has sustained eight previous convictions for bodily harm and four previous convictions for doing bodily harm while armed.

In addition, he has been convicted on two occasions of

breaching a domestic violence order.

Here, he committed the second, third and fourth offences
while he was on bail and also while he was on probation. To
my mind he shows a proprietary attitude towards women,
190899 D.1 T23/AT1 M/T COA199/99
though it must be said that it is plain that drink is a
potent factor in his offending.

The fact remains, however, that the women on the island, like everyone else, are entitled to such protection as the law can give them; and the only discernible method of protecting them from casual beatings of this kind is to send the perpetrator to prison where he can no longer commit such offences.

By that, I do not mean, of course, that he should be put in preventive detention for a period or periods disproportionate to the proper penalty for offences of this kind. But there does not seem to be any other way of dissuading him from behaving in this fashion towards his unoffending victims at times when he is drunk except by incarcerating him for an appropriate period.

His pleas of guilty merit some recognition in arriving at
the appropriate penalty. His conduct, it must be said,
seems thoroughly reprehensible. It nevertheless appears to
me that a sentence or sentences of five years for the four
offences committed here is excessive by comparison, for
example, with sentences of the kind that are not uncommonly
imposed in respect of assaults that inflict grievous bodily
harm.
190899 D.1 T23/AT1 M/T COA199/99
All matters considered, I think that the Judge erred in
imposing a sentence or sentences that were excessive. I
would allow the application and the appeal to the extent of
reducing the sentence imposed in respect of each count from
five years to three and a half years and by replacing the
existing recommendation for parole after two years with a
recommendation that the applicant be considered for parole
after he has served 18 months of the sentence on each count.

I should, of course, though it is perhaps strictly unnecessary to do so, confirm that the intention is that the sentences on each count be served concurrently with each of the other sentences. That is the order that I propose.

DERRINGTON J: I agree. There is no period of custody prior to conviction that needs to be taken into account, is there?

MR McLENNAN: I don't think so, Your Honour.

MACKENZIE J: I agree.

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