R v Morrison - [2018] QCA 288

[2018] QCA 288

COURT OF APPEAL

MORRISON JA
PHILIPPIDES JA
DAVIS J

CA No 237 of 2018
DC No 396 of 2014

THE QUEEN

MORRISON, Paul Joseph Applicant

BRISBANE

WEDNESDAY, 24 OCTOBER 2018

JUDGMENT

MORRISON JA: I’ll ask Justice Davis to commence reasons first.

DAVIS J: The applicant seeks leave to appeal sentences imposed upon him in the District Court at Ipswich on 7 September 2018.

Earlier, on 3 April 2018, the appellant had pleaded guilty to a total of nine counts of offences of dishonesty. Counts 1 to 8 were offences of making false declarations against s 194(1) of the Criminal Code. Section 194 carries a maximum penalty of three years imprisonment. Count 9 was an offence of fraud against s 408C of the Code with a circumstance of aggravation, namely that the yield from the dishonesty was a value of $30,000 or more. That offence carries a maximum penalty of 14 years imprisonment.

On each of counts 1 to 8 the applicant was sentenced to a term of imprisonment of 12 months. On count 9 he was sentenced to a term of imprisonment of three years. All sentences were ordered to be served concurrently. All sentences were suspended after the applicant had served six months imprisonment. All sentences were made subject to an operational period of three years. An order for restitution was made in the sum of $71,448.25.

The sole ground of appeal in the notice of appeal is that the sentences are manifestly excessive. However, in her submissions for the applicant, Ms Bain of counsel submits that a particular error in the approach of the learned sentencing judge can be identified which has, she submits, then resulted in the sentence being manifestly excessive. Put shortly, Ms Bain submits that the learned judge has misunderstood the significance of the applicant’s prior criminal history which has led his Honour then to a conclusion that a wholly suspended sentence was not appropriate. She submits that consideration by his Honour of the prior history has improperly overtaken the special circumstances of the case which she identifies and which she submits would justify a sentence involving no actual custody.

Ms Bain makes no complaint about the effective head sentence of three years imprisonment which his Honour imposed, but submits that in the special circumstances of this case the sentence should be suspended now. That would result in the applicant having served about six weeks in prison.

The offences arise from the mass flooding experienced in Queensland in January of 2011. Major damage was suffered in areas of the Lockyer Valley. A Commonwealth fund known as the National Disaster Relief and Recovery Fund became involved and the Lockyer Valley Regional Council was tasked with distributing money from that fund to finance clean-up and repairs.

The Council called for tenders and accepted a tender made by KTM Alliance. The applicant became the project manager of KTM on 19 February 2011. Over the period of the time of the offending 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 Morrison

Details

AGLC: R v Morrison [2018] QCA 288
Case: [2018] QCA 288
Decision Date: 24 OCTOBER 2018

CaseChat Overview and Summary

The case of R v Morrison involved an appeal against the sentences imposed on the applicant, Paul Joseph Morrison, by the District Court at Ipswich on 7 September 2018. Morrison had previously pleaded guilty to nine counts of offences of dishonesty, including making false declarations and fraud. The District Court sentenced Morrison to terms of imprisonment, ordered them to be served concurrently, and suspended the sentences after Morrison had served six months in prison. The sentences were also subject to an operational period of three years and an order for restitution of $71,4448.25. Morrison sought leave to appeal against the sentences on the basis that they were manifestly excessive. The main issue before the Court of Appeal was whether there was an error in the District Court's approach to sentencing that led to the sentences being manifestly excessive.

The Court of Appeal found no error in the District Court's approach to sentencing. The Court held that the District Court was entitled to consider Morrison's prior criminal history, which included multiple convictions for offences of dishonesty and sentences involving actual imprisonment. The Court of Appeal held that the District Court's consideration of Morrison's prior criminal history did not result in an error of principle and did not lead to the sentences being manifestly excessive. The Court of Appeal dismissed the application for leave to appeal against the sentences.

The Court of Appeal's decision in this case highlights the importance of considering an offender's prior criminal history when sentencing, particularly where the offender has a history of offences of dishonesty. The Court of Appeal also confirmed that a sentence may be suspended after a period of actual imprisonment has been served, provided that the sentence is not manifestly excessive. The Court of Appeal's decision in this case provides guidance to sentencing courts on the proper approach to sentencing offenders with a prior criminal history.

Orders