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:

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.
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

On 15 November 2023, a co-offender of the applicant was convicted by jury verdict. He was sentenced on 20 February…

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 [2024] VSCA 186
Case: [2024] VSCA 186
Decision Date: 29 August 2024

CaseChat Overview and Summary

The applicant, Messenger, applied for leave to appeal against the sentence imposed by a single judge for offences of theft of a motor vehicle, attempted burglary, and burglary. The application was brought pursuant to section 315 of the Criminal Procedure Act 2009, which provides for leave to appeal to the Court of Appeal from a sentence imposed by a single judge. The Crown opposed the application, arguing that the sentence was not manifestly excessive. The court was required to determine whether the sentence imposed was manifestly excessive and whether leave to appeal should be granted.

The court considered the principles established in relevant case law, including the need for the sentence to be within the range of sentences that a properly directed sentencing judge would have imposed. The court noted that the applicant had a significant criminal history and had committed these offences while on parole. However, the court also noted that the applicant had shown remorse and had cooperated with the authorities. The court found that the sentence was at the higher end of the range of sentences that a properly directed sentencing judge would have imposed, but was not manifestly excessive. However, the court granted leave to appeal on the basis that the sentence was at the higher end of the range and the applicant had a substantial chance of success in demonstrating that the sentence was manifestly excessive.

The court made an order granting leave to appeal against the sentence imposed by the single judge. The applicant was granted leave to appeal against the sentence on the basis that the sentence was at the higher end of the range of sentences that a properly directed sentencing judge would have imposed, and the applicant had a substantial chance of success in demonstrating that the sentence was manifestly excessive. The court ordered that the applicant be released on bail pending the outcome of the appeal.

Orders