R v Morris - [2010] QCA 315

SUPREME COURT OF QUEENSLAND

CITATION:

R v Morris [2010] QCA 315

PARTIES:

R
v
MORRIS, Gary Robert
(applicant)

FILE NO/S:

CA No 136 of 2010
DC No 1193 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2010

JUDGE:

Holmes and Fraser JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application for leave to appeal is granted.

2.    Appeal allowed.

3.    The sentence imposed on 7 June 2010 is set aside.

4.    In lieu, the applicant is sentenced to three months imprisonment to be suspended forthwith with an operational period of 12 months.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of unlawful stalking – where applicant posted flyers over a two and a half month period implying that the complainant was involved in a missing child’s disappearance and possible murder – where applicant sentenced to 18 months imprisonment suspended after three months for an operational period of two years – where applicant granted bail after serving four days – where no circumstances of aggravation, threats or acts of violence – whether sentence manifestly excessive – whether sentencing Judge had sufficient regard to s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld)

Penalties and Sentences Act 1992 (Qld), s 9(2)(a)

R v Ali [2003] 2 Qd R 389; [2002] QCA 64, considered
R v Allie [1999] 1 Qd R 618; [1998] QCA 75, cited
R v Clark[2009] QCA 361, cited
R v Keong [2007] QCA 163, cited
R v King & Morgan (2002) 134 A Crim R 215; [2002] QCA 376, cited
R v Layfield [2003] QCA 3, cited
R v Walton [2006] QCA 522, considered

COUNSEL:

R J Byrnes for the applicant
M B Lehane for the respondent

SOLICITORS:

Burchill & Horsey for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with the reasons of McMeekin J and with the orders he proposes.

FRASER JA: I agree with the reasons for judgment of McMeekin J and the orders proposed by his Honour.

McMEEKIN J: On 7 June 2010 the applicant pleaded guilty to one count of unlawful stalking[1] and was sentenced to 18 months imprisonment suspended after a period of three months for an operational period of two years. The applicant was granted bail by the Supreme Court on 10 June 2010 and so has served four days of his sentence.
[1]Section 359B of the Criminal Code (Qld).

The applicant seeks leave to appeal against the severity of his sentence on the ground that the sentence imposed was manifestly excessive.

Circumstances of the Offence

Over a two and a half month period between April and July of 2008, the applicant…

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 Morris

Details

AGLC: R v Morris [2010] QCA 315
Case: [2010] QCA 315
Decision Date: 12 November 2010

CaseChat Overview and Summary

The case of R v Morris involves the appellant who pleaded guilty to one count of unlawful stalking. The stalking occurred over a period of two and a half months during which the appellant posted flyers implying that the complainant was involved in the disappearance and possible murder of a missing child. Following the guilty plea, the appellant was sentenced to 18 months imprisonment, which was suspended after three months, with an operational period of two years. After serving only four days in custody, the appellant was granted bail. The appellant subsequently applied for leave to appeal against the sentence, arguing that it was manifestly excessive and that the sentencing judge had not given sufficient regard to certain statutory provisions.

The key legal issues in this case were whether the sentence was manifestly excessive or inadequate and whether the sentencing judge had appropriately considered the relevant statutory criteria, specifically section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). The court had to assess the nature and impact of the stalking, the absence of aggravating factors such as threats or acts of violence, and the appropriateness of the sentence in light of these factors.

The court found that the sentence was manifestly excessive. It noted the lack of aggravating circumstances and the relatively minor impact on the complainant. The court was also of the opinion that the sentencing judge did not adequately consider the statutory criteria, particularly the need to ensure that the sentence is proportionate to the seriousness of the offence and the offender’s culpability. Consequently, the appeal was allowed, the original sentence was set aside, and the appellant was re-sentenced to three months imprisonment, suspended forthwith with an operational period of 12 months.

Orders

Orders of the court

1. Application for leave to appeal is granted.

2. Appeal allowed.

3. The sentence imposed on 7 June 2010 is set aside.

4. In lieu, the applicant is sentenced to three months imprisonment to be suspended forthwith with an operational period of 12 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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CITATION:	R v Morris [2010] QCA 315
PARTIES:	R v MORRIS, Gary Robert (applicant)
FILE NO/S:	CA No 136 of 2010 DC No 1193 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	26 October 2010
JUDGE:	Holmes and Fraser JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal is granted. 2. Appeal allowed. 3. The sentence imposed on 7 June 2010 is set aside. 4. In lieu, the applicant is sentenced to three months imprisonment to be suspended forthwith with an operational period of 12 months.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of unlawful stalking – where applicant posted flyers over a two and a half month period implying that the complainant was involved in a missing child’s disappearance and possible murder – where applicant sentenced to 18 months imprisonment suspended after three months for an operational period of two years – where applicant granted bail after serving four days – where no circumstances of aggravation, threats or acts of violence – whether sentence manifestly excessive – whether sentencing Judge had sufficient regard to s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) Penalties and Sentences Act 1992 (Qld), s 9(2)(a) R v Ali [2003] 2 Qd R 389; [2002] QCA 64, considered R v Allie [1999] 1 Qd R 618; [1998] QCA 75, cited R v Clark[2009] QCA 361, cited R v Keong [2007] QCA 163, cited R v King & Morgan (2002) 134 A Crim R 215; [2002] QCA 376, cited R v Layfield [2003] QCA 3, cited R v Walton [2006] QCA 522, considered
COUNSEL:	R J Byrnes for the applicant M B Lehane for the respondent
SOLICITORS:	Burchill & Horsey for the applicant Director of Public Prosecutions (Queensland) for the respondent