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District Court 2 August 2022

R v Morley

[2022] NSWDC 670

Assault & violenceFraud & dishonestyPublic order & justice offences
CRIME RELEVANT FACTORS ON SENTENCE SENTENCE AFTER TRIAL PARITY FACT FINDING SERIOUS OFFENDING

Citation: R v Morley [2022] NSWDC 670
Court: District Court of New South Wales
Date: 2 August 2022
Judge: Haesler SC DCJ

Background

Following a drug deal gone wrong in May 2020, two complainants were detained against their will for many hours at a residential premises in Wollongong. One complainant suffered serious physical injuries during the detention. Demands were made on the complainants and their families for money to cover a loss arising from a fraudulent drug transaction, in which the offender and his associates had been supplied with what appeared to be bath salts rather than methylamphetamine.

The offender, Cheyne Morley, was one of four accused who faced trial in January 2022. The jury convicted all four accused on two counts: detaining the first complainant with intent to obtain an advantage in circumstances of aggravation and special aggravation (under s 86(3) of the Crimes Act 1900), and detaining the second complainant with intent to obtain an advantage in circumstances of aggravation. The aggravating circumstances included acting in company, and the special aggravation involved the infliction of actual bodily harm on the first complainant. All four were acquitted of the more serious special aggravation charge relating to the second complainant.

Two co-offenders, Clare and Ilievski, had already been sentenced to aggregate terms of three years and six months. A fourth co-offender, Eager, was sentenced separately after pleading guilty. Morley was the last of the group to be sentenced and had been on remand since 13 July 2020, approximately two months after the offences.

  • What facts could properly be found for sentencing purposes, given the jury's verdicts, and what standard of proof applied to disputed aggravating and mitigating matters?
  • What was the appropriate sentence for Morley, having regard to the objective seriousness of the offending, his moral culpability, his personal circumstances, and the principle of parity with co-offenders?
  • How should the sentencing court treat Morley's belated remorse, deprived upbringing, and lengthy criminal history?
  • Did special circumstances justify a departure from the standard non-parole period ratio?

Decision

Fact-finding after a contested trial

Haesler SC DCJ applied the principles in Olbrich v The Queen (1999) 199 CLR 270: matters urged in mitigation must be established on the balance of probabilities, and matters of aggravation must be proved beyond reasonable doubt. The court was not bound by the offender's suggested outline of facts but was required to make findings consistent with the jury's verdicts. Where a disputed factual matter favoured the offender and could not be resolved against him, the court proceeded on the most favourable available finding.

Objective seriousness and Morley's role

The court characterised the offending as serious. Two young men in the Wollongong drug scene were detained for many hours, one suffering quite serious injury. The detention arose from Morley's decision to recover, by force, a loss he had effectively brought upon himself through a failed drug transaction. The court noted that demands made on the complainants had a ripple effect on their families and through the community. Morley's role was treated as that of a principal organiser: he had initiated the drug purchase, insisted the first complainant accompany him to Sydney, and played a central part in the ensuing detention.

Subjective circumstances and parity

The court took into account Morley's deprived and traumatic upbringing, his longstanding drug addiction, and his belated expression of remorse, but gave that remorse limited weight given it came after a trial and a conviction. The court applied the principle in Bugmy v The Queen (2013) 249 CLR 571, acknowledging that the effects of a deprived background do not diminish with the number of offences committed. Against those matters, the court weighed Morley's lengthy criminal record. The court also considered parity with co-offenders Clare and Ilievski, who each received aggregate terms of three years and six months, but found that Morley's greater culpability and heavier criminal history warranted a substantially higher sentence. The court set a starting point of six years on count 1, consistent with the approach taken for co-offender Walker.

Special circumstances

The court found special circumstances warranted a departure from the standard ratio, primarily because of the accumulation of sentences and the need for adequate supervision and access to drug treatment on release. Approximately 65 to 66 percent of the overall sentence was ordered to be served in custody.

Orders Made

  • Count 1 (detain first complainant, aggravation and special aggravation): 6 years imprisonment
  • Count 2 (detain second complainant, aggravation only): 3 years and 9 months imprisonment
  • Total aggregate sentence: 7 years and 3 months imprisonment
  • Sentence commences: 13 July 2020
  • Non-parole period: 4 years and 7 months (eligible for parole consideration from 12 February 2025)
  • Parole period: 2 years and 8 months (expiring 12 October 2027)
  • Total effective sentence: 7 years and 5 months
  • Drug matter: Section 10A order recorded (no additional penalty)

Key Takeaways

  • Under Olbrich v The Queen, a sentencing court must apply different standards to disputed facts depending on their effect: aggravating matters require proof beyond reasonable doubt, while mitigating matters need only be established on the balance of probabilities.
  • Parity between co-offenders does not require identical sentences; the District Court here imposed a materially higher sentence on Morley than on Clare and Ilievski, reflecting his greater culpability and more substantial criminal history.
  • Belated remorse expressed only after conviction at trial carries limited mitigating weight; the court acknowledged the expression but gave it reduced significance in the overall synthesis.
  • The principle from Bugmy v The Queen confirms that a deprived upbringing and its continuing effects remain relevant to moral culpability regardless of how many prior offences an offender has accumulated.
  • Where a sentencing judge was also the trial judge, the court is entitled to make independent factual findings for sentencing purposes, provided those findings remain consistent with the jury's verdicts and do not act upon unproven contested matters adverse to the offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Procedure Act 1986 (NSW), s 294A

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- R v Clare; R v Ilievski [2022] NSWDC 383
- R v Eager [2022] NSWDC 162
- R v Morley [2021] NSWDC 681 (earlier related decision)
- R v Gavel [2014] NSWCCA 56
- R v MJB [2014] NSWCCA 195
- Simpson (2001) NSWCCA 534