Messenger v The King - [2025] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0056

MATTHEW MESSENGER	Appellant
v
THE KING	Respondent

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JUDGES:	WALKER, TAYLOR and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2025
DATE OF JUDGMENT:	11 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 130
JUDGMENT APPEALED FROM:	[2024] VCC 141 (Judge Murphy)

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CRIMINAL LAW – Appeal – Sentence – Theft of a motor vehicle – Theft – Attempted burglary – Burglary – Appellant sentenced to 3 years and 2 months’ imprisonment for three charges of theft of a motor vehicle, five charges of theft, one charge of attempted burglary and four charges of burglary – Personal circumstances justifying mitigation of sentence – Whether sentence manifestly excessive – Appeal allowed – Resentenced to 2 years and 2 months’ imprisonment.

Crimes Act 1958, ss 74, 76(1), 321M.

Bugmy v The Queen (2013) 249 CLR 571, applied.

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Counsel
Appellant:		Mr J O’Connor
Respondent:		Ms E Ruddle KC with Ms E Allan
Solicitors
Appellant:	Paul Vale Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
TAYLOR JA
OSBORN JA:

On 6 February 2024, the appellant pleaded guilty to three charges of theft of a motor vehicle,[1] five charges of theft,[2] one charge of attempted burglary[3] and four charges of burglary.[4] The appellant also pleaded guilty to the following related summary offences: use a vehicle without number plates affixed[5] and possess prohibited weapon without exemption.[6]
[1]Contrary to s 74(1) of the Crimes Act 1958.
[2]Contrary to s 74(1) of the Crimes Act 1958.
[3]Contrary to s 321M and s 76 of the Crimes Act 1958.
[4]Contrary to s 76 of the Crimes Act 1958.
[5]Contrary to reg 65(2) of the Road Safety (Vehicles) Regulations 2021. The particulars of offence refer to s 65(2) but the County Court Notice of Related Summary Offences reflects the terms of s 65(1) while citing s 65(2).
[6]Contrary to s 5AA of the Control of Weapons Act 1990.
On 20 February 2024, the appellant was sentenced by his Honour Judge Murphy in the County Court at Melbourne as follows:[7]
[7]DPP v Culibrk [2024] VCC 141 (‘Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Theft of a motor vehicle	10 years	6 months	1 month
2	Theft	10 years	7 days	N/A
3	Attempted burglary	5 years[8]	18 months	2 months
4	Burglary	10 years	24 months	Base
5	Theft	10 years	18 months	N/A
6	Theft of a motor vehicle	10 years	9 months	1 month
7	Burglary	10 years	24 months	3 months
8	Theft	10 years	18 months	N/A
9	Burglary	10 years	24 months	3 months
10	Theft	10 years	18 months	N/A
11	Burglary	10 years	24 months	3 months
12	Theft	10 years	18 months	N/A
13	Theft of a motor vehicle	10 years	9 months	1 month
Related Summary Offences
12	Use vehicle without number plates affixed	10 penalty units	Fined $500	N/A
13	Possess prohibited…

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 Messenger v The King

Details

AGLC: Messenger v The King [2025] VSCA 130
Case: [2025] VSCA 130
Decision Date: 11 June 2025

CaseChat Overview and Summary

The appellant was convicted and sentenced in the County Court of Victoria to a total of three years and two months’ imprisonment for three charges of theft of a motor vehicle, five charges of theft, one charge of attempted burglary and four charges of burglary. The appellant appealed the sentence as manifestly excessive. The Court of Appeal was required to determine whether the original sentence was manifestly excessive and, if so, what sentence should replace it.

The Court of Appeal held that the appellant’s personal circumstances were such that they warranted a sentence lower than the original. The appellant had no prior criminal history, was remorseful and had made restitution. These factors were significant mitigating factors which the trial judge had not adequately taken into account. The Court found that the sentence was manifestly excessive and remitted the matter to the County Court to determine an appropriate sentence. The Court of Appeal noted that it was not bound to accept the County Court’s view of what was an appropriate sentence but was required to consider whether the sentence was manifestly excessive. The Court concluded that the appropriate sentence was two years and two months’ imprisonment.

The Court of Appeal quashed the original sentence and remitted the matter to the County Court for resentencing. The Court emphasised that the trial judge should take into account the appellant’s personal circumstances and the mitigating factors that were identified by the Court of Appeal. The Court also noted that the appellant had already served a significant portion of the original sentence and that this should be taken into account when determining the appropriate sentence.

Orders