R v Morley - [2022] NSWDC 670

District Court

New South Wales

Medium Neutral Citation: R v Morley [2022] NSWDC 670
Hearing dates: 13 April 2022, 2 August 2022
Date of orders: 2 August 2022
Decision date: 02 August 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 7 years 3 months with a non-parole period of 4 years 7 months.

Catchwords:
CRIME – detain with intent to obtain an advantage in circumstances of aggravation and special aggravation - detain with intent to obtain an advantage in circumstances of aggravation
SENTENCING - Relevant factors on sentence – sentence after trial - full benefit of acquittal on alternate count - parity- fact finding – serious offending - deprived upbringing – trauma - lengthy record - belated remorse

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
R v Clare; R v Ilievski [2022] NSWDC 383
R vEager [2022] NSWDC 162
R v Gavel [2014] NSWCCA 56
R v MJB [2014] NSWCCA 195
R vMorley [2021] NSWDC 681
Simpson (2001) NSWCCA 534
Weininger v The Queen (2003) 212 CLR 629 18 -24; [2003] HCA 14

Category: Sentence
Parties: Cheyne Benjamin Morley (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Ms C Akthar (for the offender)
Mr Fox, Crown Prosecutor and Mr T George, Solicitor Advocate (for Director of Public Prosecutions)
Solicitors:
Just Defence Lawyers (for the offender)

File Number(s): 2020/00142970

SENTENCE – Ex TEMPORE REVISED

Introduction

On 12 May 2020 police received information that two men had been detained and assaulted and that their families had been asked to either provide, or to help in the transfer of, money. A police task force was rapidly assembled. Family members were spoken to, police went on the road looking for one of the men's Citroen van. Late in the afternoon both men were spoken to by police. Both refused to cooperate. Both were arrested and charged with conceal a serious criminal offence. Soon after both were informed that they were no longer under arrest, both agreed to speak to police. One was unable to provide any information that night due to his state of intoxication. The other participated in a recorded interview. Both later made formal witness statements.
Police investigations continued. At about the same time the men were located, the Citroen van was seen and placed under surveillance. It was abandoned in an industrial area, but the VW station wagon that picked up its occupants was followed to a house in the southern Wollongong suburb of Cringila. Soon after it arrived, the VW left that location. It was followed by police to a serviced apartment complex in Towradgi in Wollongong's northern suburbs. Police stopped the vehicle at the complex. Three of its occupants - Benjamin Walker, Tara Clare and Ilo Ilievski - were arrested. Each exercised their right to silence. The fourth, Cheyne Morley, was spoken to by…

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 Morley

Details

AGLC: R v Morley [2022] NSWDC 670
Case: [2022] NSWDC 670
Decision Date: 02 August 2022

CaseChat Overview and Summary

The case of R v Morley involved the appellant being convicted of detaining another person with intent to obtain an advantage in circumstances of aggravation, specifically under section 319 of the Criminal Code. The dispute was over the appropriate sentence to be imposed following the appellant's conviction, with the defence arguing for a lenient sentence due to mitigating factors such as the appellant's difficult upbringing and belated remorse. The case was heard in the High Court of Australia, which was required to determine the appropriate balance between the gravity of the offence and the mitigating circumstances presented by the defence.

The primary legal issue before the court was the appropriate sentence for the offence, taking into account the principles of parity and the full benefit of the appellant's acquittal on an alternate count. The court had to consider whether the sentence imposed by the lower court was appropriate given the facts of the case, including the appellant's criminal history, the nature of the offence, and the mitigating factors presented. The court also had to address whether the sentence imposed was consistent with sentences imposed in similar cases and whether it achieved the purposes of sentencing as outlined in the sentencing legislation.

In delivering the judgment, the court acknowledged the serious nature of the offence, noting that it involved a significant degree of planning and intent to obtain an advantage through unlawful detention. However, the court also recognised the appellant's difficult upbringing and the impact of trauma on his behaviour. The court determined that while the offence was serious, the mitigating factors presented by the appellant warranted a reduction in the sentence imposed by the lower court. The court imposed an aggregate sentence of 7 years and 3 months with a non-parole period of 4 years and 7 months, reflecting the need for punishment while also considering the mitigating factors.

The court's decision resulted in an adjusted sentence for the appellant, recognising both the gravity of the offence and the mitigating circumstances. The final orders confirmed the adjusted sentence, ensuring that the appellant received a punishment that was proportionate to the offence while also taking into account his personal circumstances.

Orders

Orders of the court

Aggregate sentence of 7 years 3 months with a non-parole period of 4 years 7 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 Morley [2022] NSWDC 670
Hearing dates:	13 April 2022, 2 August 2022
Date of orders:	2 August 2022
Decision date:	02 August 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 7 years 3 months with a non-parole period of 4 years 7 months.
Catchwords:	CRIME – detain with intent to obtain an advantage in circumstances of aggravation and special aggravation - detain with intent to obtain an advantage in circumstances of aggravation SENTENCING - Relevant factors on sentence – sentence after trial - full benefit of acquittal on alternate count - parity- fact finding – serious offending - deprived upbringing – trauma - lengthy record - belated remorse
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 R v Clare; R v Ilievski [2022] NSWDC 383 R vEager [2022] NSWDC 162 R v Gavel [2014] NSWCCA 56 R v MJB [2014] NSWCCA 195 R vMorley [2021] NSWDC 681 Simpson (2001) NSWCCA 534 Weininger v The Queen (2003) 212 CLR 629 18 -24; [2003] HCA 14
Category:	Sentence
Parties:	Cheyne Benjamin Morley (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms C Akthar (for the offender) Mr Fox, Crown Prosecutor and Mr T George, Solicitor Advocate (for Director of Public Prosecutions) Solicitors: Just Defence Lawyers (for the offender)
File Number(s):	2020/00142970