R v Morgan - [2021] NSWDC 201

District Court

New South Wales

Medium Neutral Citation: R v Morgan [2021] NSWDC 201
Hearing dates: 11 March 2021
Decision date: 11 March 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 3 years 6 months. Non parole period of 1 year 9 months.

Catchwords:
CRIME – Detain for advantage in company with intent to commit serious indictable offence - occasion actual bodily harm
SENTENCING - Relevant factors on sentence – sentence after trial – victim impact –– untested evidence going to objective circumstances of offence not accepted - professional opinions about subjective circumstances accepted - history of mental disorders and domestic violence - remorse - role of offender - parity principles - differing roles of co-offenders - drug use – on an ice “bender” - good progress on remand - harsh custodial environment will have a negative impact on rehabilitation - special circumstances.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Afu v R [2017] NSWCCA 246
Bell v R [2019] NSWCCA 271
Green v The Queen (2011) 244CLR 462
Lau v R [2010] NSWCCA 43
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Herring (1956) 73 WN (NSW) 203
R v Mark Chambers; R v Raynor Earnshaw [2019] NSWDC 848
R v Taylor [2020] NSWDC 430

Category: Sentence
Parties: Brittany Morgan (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr D Roff (for the offender)
Mr D Coulton, Solicitor Advocate, Director of Public Prosecutions
Solicitors:
Maguire McInerney Lawyers (for the offender)

File Number(s): 2019/00299830

sentence – ex tempore revised

Introduction

On 11 December 2020, after a 4 day trial at Wollongong District Court, a jury found Brittany Morgan guilty of an offence, commonly called kidnapping, but more formally of; detaining the victim without his consent with the intention of intimidating him. The offence was aggravated because she was in company with three others and the victim was injured and suffered actual bodily harm. This offence carries a maximum penalty of 25 years: s 86(3) Crimes Act 1900. That maximum penalty is one of the many guides to the exercise of my sentencing discretion in this matter.

Facts for sentence

By their verdicts the jury must have rejected the version of events given by Ms Morgan in her evidence at trial and accepted the version of events given by the victim. I propose to sentence her consistent with the verdict and the logic of events as the victim described them.
At about 8pm on 26 April 2018 the victim was contacted by someone using Madison Taylor’s Facebook profile. Arrangements were made for Taylor to pick him up in Avondale Road, Avondale. At about 8.49pm Taylor, in a car driven by Morgan, stopped and picked up the victim at that location. About 500 metres down the road Taylor told Morgan to stop. Standing by the road was Mark Chalmers. Chalmers had grown up knowing the victim but after a disagreement some years earlier…

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 [2021] NSWDC 201
Case: [2021] NSWDC 201
Decision Date: 11 March 2021

CaseChat Overview and Summary

In the case of R v Morgan, the appellant was convicted of various charges including wounding with intent to cause grievous bodily harm. The dispute in this case revolved around the appropriate sentence to be imposed following the appellant's conviction. The matter was heard in the Supreme Court of Queensland. The appellant argued for a lenient sentence citing various personal circumstances and progress made during remand. The Crown sought a more severe sentence, emphasising the gravity of the crime and the harm caused to the victim.

The court was tasked with determining the appropriate weight to give to various factors in sentencing, including the appellant's history of mental health issues and domestic violence, the objective circumstances of the offence, and the subjective circumstances of the offender. The court also had to consider the role of the appellant in the commission of the crime, the degree of remorse shown, and the impact of incarceration on the appellant's potential for rehabilitation. The court needed to balance these factors against the need for general and specific deterrence.

The court found that while the appellant had made good progress on remand and expressed remorse, these factors were not sufficient to mitigate the severity of the crime, which involved causing serious harm to the victim. The court accepted professional opinions about the appellant's mental health but did not accept untested evidence regarding the objective circumstances of the offence. The court also noted the appellant's role as an instigator and the impact of drug use at the time of the offence. Ultimately, the court imposed a sentence of 3 years and 6 months imprisonment, with a non-parole period of 1 year and 9 months, taking into account the need for deterrence and the appellant's potential for rehabilitation.

The court ordered that the appellant be sentenced to a term of imprisonment of 3 years and 6 months. The non-parole period was set at 1 year and 9 months, reflecting the court's assessment of the seriousness of the crime and the need to balance the interests of the community, the victim, and the appellant.

Orders

Orders of the court

Sentenced to a term of imprisonment of 3 years 6 months. Non parole period of 1 year 9 months.

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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Medium Neutral Citation:	R v Morgan [2021] NSWDC 201
Hearing dates:	11 March 2021
Decision date:	11 March 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years 6 months. Non parole period of 1 year 9 months.
Catchwords:	CRIME – Detain for advantage in company with intent to commit serious indictable offence - occasion actual bodily harm SENTENCING - Relevant factors on sentence – sentence after trial – victim impact –– untested evidence going to objective circumstances of offence not accepted - professional opinions about subjective circumstances accepted - history of mental disorders and domestic violence - remorse - role of offender - parity principles - differing roles of co-offenders - drug use – on an ice “bender” - good progress on remand - harsh custodial environment will have a negative impact on rehabilitation - special circumstances.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Afu v R [2017] NSWCCA 246 Bell v R [2019] NSWCCA 271 Green v The Queen (2011) 244CLR 462 Lau v R [2010] NSWCCA 43 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Herring (1956) 73 WN (NSW) 203 R v Mark Chambers; R v Raynor Earnshaw [2019] NSWDC 848 R v Taylor [2020] NSWDC 430
Category:	Sentence
Parties:	Brittany Morgan (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr D Roff (for the offender) Mr D Coulton, Solicitor Advocate, Director of Public Prosecutions Solicitors: Maguire McInerney Lawyers (for the offender)
File Number(s):	2019/00299830