Messenger v The King

[2024] VSCA 186

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0056

MATTHEW MESSENGER	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	29 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 186
JUDGMENT APPEALED FROM:	[2024] VCC 141 (Judge Murphy)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Application for leave to appeal – Sentence – Theft of a motor vehicle – Theft – Attempted burglary – Burglary – Whether sentence manifestly excessive – Application for leave to appeal granted.

Criminal Procedure Act, s 280(1)(b).

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Ms K Ottrey
Solicitors
Applicant:	Paul Vale Criminal Law
Respondent:	Office of Public Prosecutions

BOYCE JA:

1. On 6 February 2024, the applicant pleaded guilty to charges contained in Indictment N11281100.1. The charges were as follows: 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 applicant also pleaded guilty to the following related summary offences: drive 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 regulation 65(2) of the Road Safety (Vehicles) Regulations 2021.

   [6]Contrary to s 5AA of the Control of Weapons Act 1990.

2. On 20 February 2024, the applicant was sentenced as follows:

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	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	Drive vehicle without number plates affixed	10 penalty units	Fined $500	N/A
13	Possess prohibited weapon without exemption	240 penalty units or 12 months’ imprisonment	7 days	N/A
Total Effective Sentence:		3 years and 2 months’ imprisonment
Non-Parole Period:		1 year and 9 months’ imprisonment
Pre-sentence Detention Declared:		70 days
Section 6AAA Statement:		Total Effective Sentence: 3 years and 6 months’ imprisonment Non Parole-Period: 2 years and 4 months’ imprisonment
Other Relevant Orders: 1.   Forfeiture and Disposal orders

1. On 15 November 2023, a co-offender of the applicant was convicted by jury verdict. He was sentenced on 20 February 2024. The co-offender was sentenced to a total effective sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 3 months.

2. The applicant seeks leave to appeal against sentence. His proposed ground of appeal is in the following terms:

   Ground 1: The individual sentences on charges 3, 4, 5, 7, 8, 9, 10, 11 and 12, the total effective sentence, and the non-parole period are manifestly excessive having regard in particular to:

   a)the applicant’s pleas of guilty;

   b)the applicant’s lack of any prior convictions;

   c)the applicant’s good prospects of rehabilitation and his genuine remorse; and

   d)the objective seriousness of the offending.

3. For the reasons that follow, I consider that the application for leave to appeal against sentence ought be granted.

Summary of offending

1. On 9 June 2022, and on 20-22 June 2022, the applicant committed a series of offences comprising — in the main — burglaries and thefts. The burglaries were of suburban residential premises, and the thefts included thefts of motor vehicles. Much of the applicant’s offending was committed in the company of his co-offender.

2. The applicant’s offending commenced with him — on 9 June 2022 — driving a stolen motor vehicle — a Volkswagon Amarok — (charge 1) and then stealing some petrol (charge 2). Later that day, the applicant and the co-offender attempted to burgle a suburban house. A screwdriver was employed (charge 3). That house was occupied and the burglary was thus unsuccessful. The Volkswagon was then driven away by the applicant. It had false number plates fixed (summary charge 12). A short time later — on the same day — the applicant and the co-offender burgled another suburban home (charge 4). A passport, a Medicare card and jewellery were stolen (charge 5). Later in the evening, a white Toyota Camry belonging to an occupant of that particular premises was also stolen (charge 6).

3. On 20 June 2022 — in the morning — the applicant and his co-offender burgled another suburban house (charge 7). They were driving the Toyota Camry. The two offenders returned to the property later the same day. The offenders stole jewellery and a CCTV hard drive (charge 8). Also — on 20 June — the applicant and his co-offender burgled another residential premises (charge 9). The offenders stole four handbags (charge 10).

4. On 21 June 2022, the applicant and his co-offender burgled a further residential premises (charge 11). The applicant stole keys, hard drives, personal documentation and bank cards (charge 12).

5. Police arrested the applicant on 22 June 2022. He was discovered in possession of a stolen Toyota HiAce van (charge 13) as well as a Taser (summary charge 13).

The applicant

1. The applicant was 26 when he offended and 28 at the time of the plea. He had no prior convictions. There were allegations of further offending, however, that were still yet to be dealt with. The applicant had rather an impressive history. He was born in Western Australia into difficult circumstances. And yet — at age 15 — he took himself to Melbourne and established an impressive history of employment over an eight or nine–year period. He had obtained a forklift driver’s certificate and a crane driver’s certificate. For some reason the applicant then fell into the grip of drug addiction.

2. The applicant qualified, according to a clinical psychologist, for diagnoses of anxiety, depression, Post Traumatic Stress Disorder, substance abuse issues and adult Attention Deficit Hyperacitvity Disorder.

3. The applicant did not offer an early plea but it was submitted by the applicant that there was an explanation for this: the Crown had alleged that he was guilty of the more serious offences of aggravated burglary and attempted aggravated burglary. These offences were no longer alleged by the Crown.

4. The applicant was remorseful for what he had done.

The sentencing judge’s reasons for sentence[7]

[7]DPP v Culibrk & Anor [2024] VCC 141 (‘Reasons’).

1. After outlining the relevant offending, the judge accepted that the applicant was ‘genuinely remorseful’. The judge noted that the applicant had been ‘on [his] own in the world since aged around 15’ and had a ‘significant employment record’. The judge considered that the applicant’s ‘insight is a significant matter for a person of [his] age’ and that the applicant’s prospects of rehabilitation were ‘good’.[8]

   [8]Reasons, [117]–[120].

2. The judge considered that totality would ‘come into play’ but that denunciation and general deterrence were also important. Nevertheless, the judge indicated that in all the circumstances he would ‘accord [the applicant] significant leniency’.[9]

   [9]Reasons, [133]–[137].

Consideration

1. As can be seen, the applicant — it seems — began offending at age 26. This offending spanned a number of days. The offending was, at least to some extent, quite out of character for the applicant and at odds with his hitherto determination to work hard, look after himself, and stay out of trouble (notwithstanding the difficulties that had attended his upbringing). It seems that drug addiction had got the better of him.

2. The applicant pleaded guilty in circumstances of genuine remorse. The plea was not early, but there was some explanation for this.

3. The sentencing judge said that he would factor into account totality and, in my respectful view, there can be no doubt that his Honour did do so. The orders for cumulation all appear quite modest. So long as the base sentence is thought to be within range, no complaint could be made about the orders for cumulation; nor in light of those orders — given the terms of section 280(1)(b) of the Criminal Procedure Act 2009 — could the lengths of the individual terms other than the base sentence be thought to present a compelling case for the grant of leave.[10]

   [10]In the sense that given the modest orders for cumulation, any error in the length of an individual term (other than the base sentence) would be unlikely to permit of a ‘reasonable prospect that the Court of Appeal would reduce the total effective sentence’.

4. But that leaves for consideration the base sentence — a sentence of two years’ imprisonment (where the applicable maximum is 10 years’ imprisonment) for the commission of charge 4.

5. All things considered, it seems to me that it is at least reasonably arguable that this sentence is manifestly excessive having regard to the applicant’s plea, remorse, significant work history, prospects of rehabilitation and lack of prior convictions. The applicant had — it seems — shown a degree of fortitude and industry from a young age.

6. It may be that with the benefit of full argument it will be shown that this sentence is not manifestly excessive; alternatively it may be established that even if the base sentence is manifestly excessive there should still be no reduction overall. That said, I consider that at this stage a grant of leave is warranted.

Conclusion

1. There will be a grant of leave to appeal against sentence.