Dressing v Porter

[2006] VSCA 216

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 248 of 2006

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

PHILIP SEAN MORGAN

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JUDGES:	WARREN, C.J., MAXWELL, P. and BUCHANAN, J.A.
WHERE HELD:	BENDIGO
DATE OF HEARING:	11 October 2006
DATE OF JUDGMENT:	11 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 216

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Criminal law – Crown appeal – Burglary and theft – Large number of prior convictions – Prospects of rehabilitation – Sentence of 18 months’ imprisonment with a minimum term of nine months not manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown/Appellant	Mrs C.M. Quin	Ms A. Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr P.F. Tehan, Q.C. with Mr C.B. Boyce

WARREN, C.J.:

1. I invite Buchanan, J.A. to deliver the first judgment.

BUCHANAN, J.A.: 

1. The respondent is a man of aboriginal descent who is now 37 years old, with an extensive history of offences of violence and dishonesty, who has spent the last 20 years in and out of gaol. 

1. In the early hours of Saturday morning he gained entry to a house in Shepparton by climbing through the window of an unoccupied bedroom.  A couple were in bed in another room.  The wife awoke when she heard the noise made by the respondent's entry.  She woke her husband, who went to investigate.  He confronted the respondent and a struggle ensued.  The householder suffered flesh wounds to his head.  After the struggle, the respondent asked the wife where the door was and she let the respondent out through the front door.  The husband also suffered bruising to his chest and abdomen and left hip when he fell during the struggle.  In a report to this Court, the sentencing judge pointed out that the respondent denied striking the first blow and the victim did not gainsay that contention.  His Honour also said that a forensic pathologist called by the defence swore that the victim's injuries were consistent with falling and striking pieces of furniture rather than blows struck by the respondent.

1. The victim was 65 years old.  The sentencing judge described him as twice the age of the respondent and half the respondent's size.  The victim's wounds required stitches and he has suffered ongoing pain in the hip, problems sleeping and stress and fatigue.  His wife has been sleepless and suffers from anxiety.

1. As a consequence of his actions, the respondent was arraigned in the County Court and pleaded not guilty to a presentment containing one count of aggravated burglary, one count of intentionally causing injury and one count of recklessly causing injury.  At the conclusion of the trial the respondent was found guilty of burglary, an alternative to the count of aggravated burglary, and guilty on the count of recklessly causing injury.  After a plea, the respondent was sentenced to a term of 12 months' imprisonment on each of the counts of burglary and causing injury recklessly.  The sentencing judge directed that six months of the sentence imposed on the count of causing injury recklessly were to be served cumulatively on the sentence imposed in respect of the count of burglary.  The total effective sentence was 18 months' imprisonment.  A minimum term of nine months was fixed.

1. The Director has appealed against the sentence on the ground that the individual sentences, the total effective sentence and the non-parole period were each manifestly inadequate.  Particulars of that ground are that the sentencing judge failed to adequately reflect the gravity of the offences, failed to take into account the need for specific and general deterrence, gave too much weight to mitigating factors and insufficient weight to the maximum penalties, the respondent's prior and subsequent criminal history and the effect of the offending upon the victims.

1. The respondent admitted 58 prior convictions from 13 court appearances.  The offences included armed robbery, three counts of robbery, one count of attempted robbery, six counts of burglary, ten counts of theft, two counts of attempted theft, three counts of causing injury intentionally, three counts of causing serious injury recklessly, and two counts of causing injury recklessly.  He had received a number of sentences of imprisonment, the longest being a term of six years' imprisonment with a non-parole period of four years imposed in 1992. 

1. The respondent has had a hard life.  His father frequently assaulted members of his family as a result of drinking.  The father died when the respondent was aged eleven years.  He was one of six children.  He left school in the early stage of his secondary school education and was introduced to alcohol before he had reached the age of ten years, cannabis before he had reached the age of 13 years, and to amphetamine and heroin in his mid-teens.  The bulk of the respondent's prior offences are linked to drugs and to alcohol.

1. The respondent had formed a relationship with a woman which had lasted three years and produced a daughter.  The respondent's partner gave evidence in the course of the plea and was described by the sentencing judge as an impressive witness.  His Honour said that the respondent's partner and her father were convinced that the respondent had turned the corner.  He was no longer using drugs as a consequence of his adherence to a methadone programme over the last 12 months.  Relatives of the respondent, who occupied responsible positions in the indigenous community, undertook to the Court to give support to the respondent upon his release from prison.  A psychologist reported to the Court that the respondent was of above average intelligence and had reached an age where he was likely to gain a sense of maturity and responsibility.

1. I do not view the sentence as one that is so out of proportion to the gravity of the offences that this Court should interfere with it.  The question to my mind is rather whether the offences, seen in the context of the respondent's persistent offending for most of his life, render the sentence one that can be described as manifestly inadequate.  If there were nothing more, I would be inclined to conclude that the sentence was inappropriate, to the point that it revealed an error of principle.  The offences were serious indeed.  The respondent entered an occupied dwelling house in the dead of night with intent to steal and, when discovered, grappled with the householder. 

1. But there is something more.  At a point in his life where the respondent might well be regarded as in danger of becoming institutionalised, so that he is liable to retreat from the real world to the perceived security of prison, he has shown positive signs of wishing to reform.  There was evidence from a number of quarters, which the sentencing judge accepted, that there were real prospects of the respondent being rehabilitated at long last.  I consider that the sentencing judge could justifiably seek to nurture those prospects by imposing the sentence he did.  In my opinion, this Court should be careful not to unduly limit the exercise of a sentencing judge's discretion in circumstances such as these.

1. Accordingly, I would dismiss the appeal.

WARREN, C.J.: 

1. I agree with the reasons and disposition of the appeal proposed by Buchanan, J.A. 

MAXWELL, P.: 

1. I too would dismiss the appeal, for the reasons given by his Honour.  I would add only two brief remarks of my own.

1. The first is that I have taken full account of what is said by the victims in their victim impact statements.  The terrifying experience that this was, and the ongoing sleeplessness and anxiety which the victims are experiencing, are matters of very great concern to a sentencing court. 

1. I entirely agree with what Buchanan, J.A. has said about the importance of the appeal court not intruding upon a sentencing judge's weighing up of the multiple sentencing considerations – including, in the present case, rehabilitation.  But the victims of this crime need to be assured that, in upholding his Honour's view that there is the possibility of this respondent turning the corner, we are not ignoring the impact of the crime on them.  The point is simply this.  If rehabilitation is successful, that reduces the risk of other members of the community being exposed to the kind of horror which these victims experienced.  That does not compensate them for what they suffered, but it is an explanation of why rehabilitation is regarded as such an important sentencing consideration.

1. Secondly, the adequacy of the sentence has to be viewed by reference to the maximum.  The charge was recklessly causing injury, which carries a maximum of five years.  In contrast, the charge of intentionally causing serious injury, which carries a maximum of 20 years.  The sentence here imposed of 12 months has to be assessed by reference to the five-year maximum. 

WARREN, C.J.: 

1. The orders the Court would propose to make are that the appeal is dismissed.  The Court will grant a certificate to the respondent pursuant to s.15 of the Appeal Costs Act.  Those orders are made.

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