Regina v Morgan - [2004] NSWCCA 194

CITATION: Regina v Morgan [2004] NSWCCA 194

HEARING DATE(S): 7 June 2004

JUDGMENT DATE:
17 June 2004

JUDGMENT OF: Dowd J at 1; Hislop J at 2; Smart AJ at 3

DECISION: See para 31

CATCHWORDS: Serious offences - amendment of sentences initially passed by altering sentence structure and thereby increasing effective head sentence by 9 months when amendment due to a misconception and no reasons given for increase when sentences initially passed within permissible range - period on parole too short.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Nil

PARTIES :
Regina v Vincent Morgan

FILE NUMBER(S): CCA 60038/04

COUNSEL: (A) R Button
(C) B Knox SC

SOLICITORS: (A) R Davies
(C) S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0201

LOWER COURT
JUDICIAL OFFICER : Woods ADCJ

IN THE COURT OF
CRIMINAL APPEAL

DOWD J

HISLOP J

SMART AJ

Thursday, 17June 2004

Regina v VINCENT MORGAN

Judgment

1. DOWD J: I have read the judgment of Smart AJ in draft form. I agree with the proposed orders and his reasons therefor.

2. HISLOP J: I agree with Smart AJ.

3. SMART AJ: Vincent Morgan seeks leave to appeal against sentences of imprisonment imposed upon him on 6 June 2003, being a revision of the sentences imposed on 5 June 2003. The judge purported to act under the slip rule.

4. The effect of the revision was to extend the overall length of the head sentences by 9 months.

5. In his remarks of 5 June 2003 the judge first dealt with the sentence for count 4, sexual intercourse without consent, and imposed a sentence of 4 years imprisonment with a non-parole period of 2 years 9 months. No dates of commencement or expiry were mentioned. The judge next stated that for the indecent assaults (counts 2 and 6) he imposed on each a sentence of imprisonment of 20 months with a non-parole period of 14 months. The judge then considered totality and determined that the sentence on count 2 should be cumulative on the sexual assault count (count 4). As to the second indecent assault (count 6) he considered that it was so close to the sexual assault that the sentence on count 6 should be served concurrently. Again no dates of commencement and expiry were mentioned.

6. One problem is that the judge did not state the total effective head sentences and the total non-parole periods. The principle of totality was not adequately considered and implemented.

7. On 5 June 2003 the judge endorsed the indictment that on the charge of sexual assault the applicant was "convicted & sentenced to a term of imprisonment for 4 years to date from 2/6/03 & expire on 1/6/07. I set a NPP of 2 years & 9 months to date from the 2/6/03 & expire on 1/3/06" and also:

"On each of the counts of indecent assault Crimes Act 61 convicted and sentenced to terms of imprisonment for 20 months to be served concurrently with each…

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 Regina v Morgan

Details

AGLC: Regina v Morgan [2004] NSWCCA 194
Case: [2004] NSWCCA 194
Decision Date: 17 June 2004

CaseChat Overview and Summary

The case of Regina v Morgan was heard in a higher court, where the accused's appeal against their conviction and sentence was considered. The accused was found guilty of serious offences and had their sentence increased by 9 months due to a perceived error in the initial sentence structure. The accused contested the amendment, arguing that the increase was unjustified and that the period on parole was too short. The legal issues that the court had to resolve were whether the amendment of the sentence was valid and if the period on parole was reasonable.

The court examined the initial sentence passed and determined that it was within the permissible range. The court also analysed the reasons given for the amendment and found that there were none. The court held that the amendment was due to a misconception and that no valid reasons were provided for the increase in the effective head sentence. The court also considered the period on parole and found it to be too short, which contributed to the overall severity of the sentence. The court concluded that the amendment was not justified and that the period on parole was unreasonable.

Consequently, the court ordered that the amendment to the sentence be quashed, and the original sentence be reinstated. The court also directed that the period on parole be increased to a reasonable length. The court emphasised the importance of providing reasons for any amendments to a sentence and the need to ensure that the period on parole is adequate to allow for the rehabilitation of the offender. The court's decision in this case highlights the importance of ensuring that any amendments to a sentence are justified and that the period on parole is reasonable.

Orders