R v Morton - [1997] QCA 266

IN THE COURT OF APPEAL	[1997] QCA 266
SUPREME COURT OF QUEENSLAND

C.A. No. 217 of 1997

Brisbane

[R v. Morton]

T H E Q U E E N

DAREN JOHN MORTON

(Applicant) Appellant

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Pincus J.A.
Shepherdson J.
White J.

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Judgment delivered 29 August 1997

Separate Reasons for Judgment of each member of the Court, Shepherdson J
dissenting.
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1.         APPLICATION GRANTED.
2.         APPEAL ALLOWED.
3          SENTENCES IMPOSED REDUCED, ALL TO BE CONCURRENT AS FOLLOWS: FOR THE ROBBERY, 4 YEARS; FOR THE BREAKING, ENTERING AND STEALING, 2 YEARS; FOR THE BREAKING AND ENTERING WITH INTENT, 1 YEAR.

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CATCHWORDS: CRIMINAL LAW - appeal against sentence - armed robbery,

breaking entering and stealing, breaking and entering with intent - late night armed robbery of service station - applicant was driver of car to and from service station - sentences of 6 years, 4½ years and 2 years imposed respectively - whether sentences imposed too high.
Dempsey (C.A. No. 261 of 1995, 22 August 1995)
Hammond (C.A. No. 445 of 1996, 10 December 1996)
Pight v. The Queen (1995) 64 SASR 215
House v. The King (1936) 55 CLR 499

Counsel:	Mr P M Ridgway for the respondent. Applicant/appellant appeared on his own behalf.
Solicitors:	Director of Public Prosecutions (Queensland) for the respondent. Applicant/appellant appeared on his own behalf.
Hearing date:	8 August 1997.
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 29 August 1997

This is an application for leave to appeal against sentence, the applicant having been convicted in the District Court of armed robbery, of breaking, entering and stealing, and of breaking and entering with intent to commit an indictable offence. In respect of these offences he was sentenced to, in order, 6 years, 4½ years and 2 years imprisonment. It is common ground that the principal sentence of 6 years is a high one and the question for our consideration is whether it is so far from a proper sentence as to require correction.

It is necessary to set out the facts in a little detail, but a preliminary observation, in view of remarks made by the learned primary judge, is necessary. The question before the Court is not whether each of us would, left to our own devices, personally favour a lighter or heavier sentence. No doubt some judges would always be inclined to think that the general level of sentencing, prevalent at a particular time, is too severe or not severe enough, either over the whole range of offences or in respect of particular offences such as those of a sexual nature or offences of violence. Obviously there is no level of sentencing which can be said to be "correct", in an abstract way; a little study will disclose that some other respectable legal systems impose penalties much harsher or less harsh than those imposed in Australia; incest is perhaps an example of an offence the seriousness of which is regarded quite differently in various countries.

The point of these remarks is to…

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 Morton

Details

AGLC: R v Morton [1997] QCA 266
Case: [1997] QCA 266
Decision Date: 29/08/1997

CaseChat Overview and Summary

The case of R v Morton involved an appeal against sentence by the applicant, Daren John Morton, who was convicted in the District Court of armed robbery, breaking, entering and stealing, and breaking and entering with intent. The District Court imposed sentences of 6 years, 4½ years, and 2 years imprisonment respectively. The key issue for the Court of Appeal was whether the sentence for the most serious offence, armed robbery, was excessively high. The Court of Appeal granted the application for leave to appeal, allowed the appeal, and reduced the sentences to 4 years for the robbery, 2 years for the breaking, entering and stealing, and 1 year for the breaking and entering with intent, to be served concurrently. The majority of the Court of Appeal found that the 6-year sentence for the armed robbery was too high, considering the applicant's youth, minimal prior convictions, and role as a driver rather than the principal offender. The Court emphasised the importance of consistency in sentencing while acknowledging that there is no "correct" or "tariff" sentence for offences where the court exercises discretion. The Court of Appeal concluded that the original sentence for the armed robbery was manifestly excessive and not reflective of the appropriate level of punishment for the offence.

Orders