R v Morrison - [2004] QCA 322

SUPREME COURT OF QUEENSLAND

CITATION:

R v Morrison [2004] QCA 322

PARTIES:

R
v
MORRISON, David Lawrence

(applicant)

FILE NO/S:

CA No 208 of 2004
DC No 476 of 2004

DC No 1281 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2004

JUDGES:

McMurdo P, McPherson JA, Jerrard JA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1. Application for leave to appeal granted

2. Vary the sentence imposed below to the extent only of altering the recommendation for parole so that the applicant is eligible for consideration for parole after serving two years of his sentence

CATCHWORDS:

CRIMINAL LAW – SENTENCING – PROPERTY OFFENCES – where applicant sentenced to seven years imprisonment, with a recommendation for parole after three years, for 21 counts of burglary and stealing, two counts of breaking and entering, receiving and fraud – whether sentence manifestly excessive, in light of applicant’s pleas of guilty and cooperation with the police

R v Josey; ex parte A-G (Qld) [2003] QCA 44; CA No 1 of 2003; CA No 32 of 2003, 17 February 2003
R v Slade [2003] QCA 38; CA No 147 of 2002, 12 February 2003

COUNSEL:

B G Devereaux for the applicant

M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Qld) for the respondent

THE PRESIDENT: Mr Justice McPherson will deliver his reasons first.

McPHERSON JA: The applicant pleaded guilty in the District Court at Brisbane on 8th June 2004 to 21 counts of burglary and stealing, two counts of breaking and entering premises and stealing, one count of receiving and one count of fraud. He was sentenced to serve a term of seven years' imprisonment with a recommendation for parole after three years.

The applicant now seeks leave to appeal against the sentence on the ground that it is manifestly excessive. The applicant pleaded guilty ex officio to 25 offences on the indictment before the sentencing Judge. These offences were committed between August 1997 and May 2003, although the majority of the offences occurred on a four year period between 1999 and 2003.

The applicant was sentenced to seven years' imprisonment for the 21 counts of burglary and stealing and given lesser concurrent terms for the two counts of breaking and entering premises and stealing, receiving and fraud. In relation to the latter two matters there were 58 offences of receiving rolled into one count in accordance with section 568 of the Code, and 82 offences of fraud rolled into a single count under the same section.

The applicant, by committing these offences, had also breached a suspended sentence which had been imposed on him in the Magistrates Court in February 2001. The sentencing Judge found a breach of that suspended sentence to have been proved and activated the remaining months…

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 [2004] QCA 322
Case: [2004] QCA 322
Decision Date: 3 September 2004

CaseChat Overview and Summary

The case of R v Morrison involved the appellant who was sentenced to seven years imprisonment for a series of property offences, including burglary, stealing, breaking and entering, receiving stolen property, and fraud. The appellant had pleaded guilty to 21 counts of burglary and stealing, two counts of breaking and entering, and various other charges. The court recommended that the appellant be eligible for parole consideration after serving three years of the sentence. The appellant sought leave to appeal against the sentence, arguing that it was manifestly excessive given his pleas of guilty and cooperation with the police.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the appellant's guilty pleas and his cooperation with law enforcement. The appellant's counsel submitted that the sentence should reflect the appellant's cooperation and remorse, and that a more lenient approach to parole eligibility would be appropriate. The Crown argued that the sentence was commensurate with the seriousness of the offences and that the original recommendation for parole was appropriate.

The court found that while the appellant's cooperation and guilty pleas were mitigating factors, they did not warrant a significant reduction in the sentence. However, the court considered that the appellant's cooperation and remorse warranted a modification to the parole recommendation. The court held that the sentence was not manifestly excessive but that the parole recommendation should be altered to allow for parole consideration after two years, instead of three. This adjustment reflected the appellant's cooperation and remorse while maintaining an appropriate level of deterrence and denunciation.

The court granted the appellant leave to appeal and varied the sentence by altering the recommendation for parole eligibility to two years, instead of three. This decision balanced the need for appropriate punishment and deterrence with the recognition of the appellant's cooperation and remorse. The court’s ruling ensures that the sentence remains proportionate to the gravity of the offences while providing some leniency for the appellant's cooperation and guilty pleas.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Vary the sentence imposed below to the extent only of altering the recommendation for parole so that the applicant is eligible for consideration for parole after serving two years of his sentence

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Morrison [2004] QCA 322
PARTIES:	R v MORRISON, David Lawrence (applicant)
FILE NO/S:	CA No 208 of 2004 DC No 476 of 2004 DC No 1281 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	3 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	3 September 2004
JUDGES:	McMurdo P, McPherson JA, Jerrard JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Application for leave to appeal granted 2. Vary the sentence imposed below to the extent only of altering the recommendation for parole so that the applicant is eligible for consideration for parole after serving two years of his sentence
CATCHWORDS:	CRIMINAL LAW – SENTENCING – PROPERTY OFFENCES – where applicant sentenced to seven years imprisonment, with a recommendation for parole after three years, for 21 counts of burglary and stealing, two counts of breaking and entering, receiving and fraud – whether sentence manifestly excessive, in light of applicant’s pleas of guilty and cooperation with the police R v Josey; ex parte A-G (Qld) [2003] QCA 44; CA No 1 of 2003; CA No 32 of 2003, 17 February 2003 R v Slade [2003] QCA 38; CA No 147 of 2002, 12 February 2003
COUNSEL:	B G Devereaux for the applicant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Qld) for the respondent