R v Morrow - [2006] QCA 305

SUPREME COURT OF QUEENSLAND

CITATION:

R v Morrow [2006] QCA 305

PARTIES:

R
v
MORROW, Jody-Maree Joan
(applicant/appellant)

FILE NO/S:

Appeal No 127 of 2006
DC No 1313 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

23 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2006

JUDGES:

McMurdo P, Wilson and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

Appeal allowed

Substitute for the sentence on count 4 four years imprisonment suspended after nine months, with an operational period of four years

3. On counts 1 and 2 substitute nine months imprisonment, followed by probation for three years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to three counts of armed robbery and one count of common assault – where applicant was sentenced to five years imprisonment on each of the robbery offences to be served concurrently, suspended after 10 months – where the applicant was on probation at the time of offending – where the applicant brandished blood filled syringe at shop attendants – where the amount stolen was relatively insignificant – where the applicant was under the influence of drugs at the time of offending – where the applicant had made progress in her drug rehabilitation – whether sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – GENERAL PRINCIPLES – where applicant was diagnosed with a major mental illness two days after her sentence – where the Court has an unfettered discretion to receive new evidence – where the interests of justice required that the evidence be received – whether the sentencing Judge would have imposed a sentence requiring supervision on the applicants release from prison if the evidence had been before the court.

R v Horne [2005] QCA 218; CA No 104 of 2005, 22 June 2005, considered
R v Maniatis [1997] 1 Qd R 593, cited.

R v Styles [2003] QCA 374; CA 202 of 2003, 15 August,
2 September 2003, considered

COUNSEL:

The applicant/appellant appeared on her own behalf
R G Martin SC for the respondent

SOLICITORS:

The applicant/appellant appeared on her own behalf
Director of Public Prosecutions for the respondent

ATKINSON J: The applicant seeks leave to appeal against sentences imposed on her on 8 May 2006 on three counts of armed robbery and one count of common assault. She pleaded guilty and was sentenced to five years' imprisonment on each of the robbery offences and six months' imprisonment on the count of assault. Each of the sentences was to be served concurrently, with the five year sentences being suspended after she had served 10 months with…

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 Morrow

Details

AGLC: R v Morrow [2006] QCA 305
Case: [2006] QCA 305
Decision Date: 23 August 2006

CaseChat Overview and Summary

In the case of R v Morrow, the appellant was convicted of three counts of armed robbery and one count of common assault. She was sentenced to five years imprisonment on each of the robbery offences, to be served concurrently, and suspended after 10 months. The appellant was on probation at the time of the offence and had brandished a blood-filled syringe at shop attendants during the commission of the robberies. The amount stolen was relatively insignificant, and the appellant was under the influence of drugs at the time of the offending. The appellant had made progress in her drug rehabilitation and was diagnosed with a major mental illness two days after her sentence. The appellant appealed against the severity of her sentence, arguing it was manifestly excessive.

The legal issues in this appeal centred on whether the sentence was manifestly excessive, and whether the sentencing judge would have imposed a sentence requiring supervision upon the appellant's release from prison if the evidence of her major mental illness had been before the court. The Court was required to consider the principles of sentencing and the principles of judicial review in relation to the sentence imposed.

The Court found that the sentence was manifestly excessive, taking into account the appellant's age, background, and the fact that she was on probation at the time of the offence. The Court also found that the sentencing judge would have imposed a sentence requiring supervision upon the appellant's release from prison if the evidence of her major mental illness had been before the court. The Court exercised its discretion to receive new evidence and substitute a more appropriate sentence. The Court substituted a sentence of four years imprisonment, suspended after nine months, with an operational period of four years on count 4, and nine months imprisonment, followed by probation for three years on counts 1 and 2.

Orders

Orders of the court

1. Appeal allowed

2. Substitute for the sentence on count 4 four years imprisonment suspended after nine months, with an operational period of four years

3. On counts 1 and 2 substitute nine months imprisonment, followed by probation for three years

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 Morrow [2006] QCA 305
PARTIES:	R v MORROW, Jody-Maree Joan (applicant/appellant)
FILE NO/S:	Appeal No 127 of 2006 DC No 1313 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	23 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2006
JUDGES:	McMurdo P, Wilson and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	Appeal allowed Substitute for the sentence on count 4 four years imprisonment suspended after nine months, with an operational period of four years 3. On counts 1 and 2 substitute nine months imprisonment, followed by probation for three years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to three counts of armed robbery and one count of common assault – where applicant was sentenced to five years imprisonment on each of the robbery offences to be served concurrently, suspended after 10 months – where the applicant was on probation at the time of offending – where the applicant brandished blood filled syringe at shop attendants – where the amount stolen was relatively insignificant – where the applicant was under the influence of drugs at the time of offending – where the applicant had made progress in her drug rehabilitation – whether sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – GENERAL PRINCIPLES – where applicant was diagnosed with a major mental illness two days after her sentence – where the Court has an unfettered discretion to receive new evidence – where the interests of justice required that the evidence be received – whether the sentencing Judge would have imposed a sentence requiring supervision on the applicants release from prison if the evidence had been before the court. R v Horne [2005] QCA 218; CA No 104 of 2005, 22 June 2005, considered R v Maniatis [1997] 1 Qd R 593, cited. R v Styles [2003] QCA 374; CA 202 of 2003, 15 August, 2 September 2003, considered
COUNSEL:	The applicant/appellant appeared on her own behalf R G Martin SC for the respondent
SOLICITORS:	The applicant/appellant appeared on her own behalf Director of Public Prosecutions for the respondent