R v Morrison - [2003] NSWCCA 89

CITATION: R v Morrison [2003] NSWCCA 89

HEARING DATE(S): 25 March 2003

JUDGMENT DATE:
25 March 2003

JUDGMENT OF: Studdert J at 1; Smart AJ at 39

DECISION: Leave to appeal granted; appeal dismissed.

LEGISLATION CITED: Crimes Act, s 35
Crimes (Sentencing Procedure) Act, s 32

CASES CITED: R v Bett [2001] NSWCCA 482
R v Coleman (unreported, NSWCCA, 20 February 1995)
R v Galati [2002] NSWCCA 366
R v Kalache (unreported, NSWCCA, 30 June 1995)
R v Page [2000] NSWCCA 484

PARTIES :
Regina v Troy Anthony Morrison

FILE NUMBER(S): CCA 60027/03

COUNSEL: G.I.O. Rowling (Crown)
R. Burgess (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0087

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

60027/03

STUDDERT J
SMART AJ
Tuesday 25 March 2003

REGINA v TROY ANTHONY MORRISON

Judgment

1 STUDDERT J: The applicant, Troy Anthony Morrison, seeks leave to appeal against the sentence imposed by his Honour Judge Christie QC on 5 July 2002. On that date his Honour sentenced the applicant to a term of imprisonment of five years commencing on 5 March 2002 and expiring on 4 March 2007. His Honour, having found special circumstances, fixed a non-parole period of three years and three months expiring on 4 June 2005.

2 The offence is in a category for which s 35 of the Crimes Act imposed a maximum sentence of seven years imprisonment. The judge was also asked to take into account, pursuant to s 32 of the Crimes (Sentencing Procedure) Act an offence of malicious damage to property.

3 The objective facts were the subject of agreement. The applicant had been drinking with friends at an hotel early on the morning of 29 July 2001. The victim entered the hotel and approached the bar area. He was challenged there by the applicant who told him to leave the hotel. The victim did so but the applicant followed him out of the hotel to the front of the carpark where he hit the victim in the face with his right elbow. The victim fell to the ground unconscious and the applicant then commenced to kick the victim in the head. He did so four or five times. He then left the victim unconscious where he had fallen and returned to the hotel and resumed drinking.

4 Later, when the applicant left the hotel, he head butted a glass window of a shop, breaking the glass. It was this latter matter that the applicant asked the sentencing judge to take into account under a Form 1.

5 The applicant was arrested some eight hours after the commission of the crime and at the Taree police station made frank admissions in an ERISP. In that ERISP the applicant admitted he elbowed the victim in the vicinity of the nose, that the applicant fell over and that he then kicked him in the head probably four or five times. He added that one of the applicant’s mates saw what had…

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 [2003] NSWCCA 89
Case: [2003] NSWCCA 89
Decision Date: 25 March 2003

CaseChat Overview and Summary

In the matter of Regina v Troy Anthony Morrison, the applicant sought leave to appeal against the sentence imposed by his Honour Judge Christie QC. The applicant was sentenced to five years imprisonment for an offence that carried a maximum penalty of seven years. The court was tasked with determining whether the sentence was manifestly excessive and if sufficient allowance had been made for the applicant's special circumstances.

The applicant had a troubled background, having experienced neglect, emotional, physical, and sexual abuse. The court acknowledged these factors but also recognised the seriousness of the crime, which involved the applicant severely assaulting a victim and causing significant injuries. The applicant's guilty plea and the frankness of his admissions were considered as mitigating factors.

The court examined the sentence in light of the objective and subjective circumstances. While the applicant's background was compelling, the court found that the objective gravity of the crime warranted a substantial sentence. The court concluded that the sentence imposed was within the sound exercise of the trial judge's discretion. The appeal was allowed, but the sentence was upheld.

The final orders of the court were to grant leave to appeal and dismiss the appeal. The sentence of five years imprisonment with a non-parole period of three years and three months was affirmed.

Orders