Morgan v Police - [2009] SASC 337

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MORGAN v POLICE
[2009] SASC 337
Judgment of The Honourable Justice Duggan
5 November 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
Appeal against sentence – appellant pleaded guilty in Magistrates Court to five counts of obtaining a benefit by deception and one count of creating a document to obtain a benefit by deception – Magistrate sentenced appellant to 10 months' imprisonment with respect to all counts to be suspended upon the appellant entering into a 18-month good behaviour bond – whether sentence manifestly excessive – whether Magistrate had adequate regard to appellant's pleas of guilty, psychological condition and prospects of rehabilitation – whether Magistrate erred in application of principle of totality.
Held: Appeal dismissed – circumstances of appellant’s offending warranted a term of imprisonment – appropriate to suspend the term of imprisonment – inappropriate to apply totality principle to suspended sentences imposed by different courts – relevance of appellant's psychological condition discussed.
R v Wiskich (2000) 207 LSJS 431; R v Bennett [2005] SASC 55; Mill v The Queen (1998) 166 CLR 59, considered.

MORGAN v POLICE
[2009] SASC 337
Magistrates Appeal: Criminal

DUGGAN J: The appellant pleaded guilty in the Magistrates Court to five charges of obtaining a benefit by deception and one charge of creating a document to obtain a benefit by deception.
According to the prosecution, the appellant falsified five withdrawal slips in order to obtain money from his brother’s bank account. On the first occasion on which he visited the bank he was in possession of a withdrawal slip signed by his brother so as to enable funds to be withdrawn for a specific purpose. Counsel for the appellant counsel stated that he presented this withdrawal slip to the bank pretending to be his brother. He then used the amount which he withdrew for his own purposes. He went on to present five further withdrawal slips over a period from 30 January 2009 to 10 February 2009. He forged his brother’s name on each of these withdrawal slips. He also inserted the amount to be withdrawn. On the last occasion the bank staff became suspicious and the police were called.
The total amount obtained as a result of the deceptions was $3,269. The bank has reimbursed the appellant’s brother in this amount and there is a restitution order in place requiring the appellant to repay the amount obtained to the bank.
The Magistrate sentenced the appellant to imprisonment for 10 months on all counts. He suspended the term of imprisonment upon the appellant entering into a bond in the sum of $200 to be of good behaviour for 18 months. During that period the appellant is to be under the supervision of a community corrections officer and is to obey all lawful directions including directions to attend psychological counselling and therapy.
The…

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 Morgan v Police

Details

AGLC: Morgan v Police [2009] SASC 337
Case: [2009] SASC 337
Decision Date: 5 November 2009

CaseChat Overview and Summary

In the matter of Morgan v Police, the appellant was convicted in the Magistrates Court of five counts of obtaining a benefit by deception and one count of creating a document to obtain a benefit by deception. The appellant entered a guilty plea, and the Magistrate sentenced them to a term of 10 months' imprisonment, which was to be suspended upon the appellant entering into an 18-month good behaviour bond. The appellant subsequently appealed the sentence, contending it was manifestly excessive and that the Magistrate failed to give adequate consideration to their guilty pleas, psychological condition, and prospects of rehabilitation. The court was also required to determine whether the Magistrate had erred in applying the principle of totality in relation to the suspended sentences.

The court considered whether the circumstances of the appellant's offending warranted a term of imprisonment, whether it was appropriate to suspend the term of imprisonment, and whether it was appropriate to apply the principle of totality to the suspended sentences imposed by different courts. The court further examined the relevance of the appellant's psychological condition and its impact on the sentencing decision. The court concluded that the circumstances of the appellant's offending warranted a term of imprisonment, and it was appropriate to suspend the term of imprisonment. The court also found that it was inappropriate to apply the principle of totality to the suspended sentences imposed by different courts. In relation to the appellant's psychological condition, the court found that it did not warrant a reduction in the sentence.

The appeal was dismissed, and the original sentence was upheld. The court found that the Magistrate had adequately considered the appellant's guilty pleas, psychological condition, and prospects of rehabilitation, and that the sentence was not manifestly excessive. The court noted that the principle of totality is not applicable to suspended sentences imposed by different courts, and that the appellant's psychological condition did not warrant a reduction in the sentence. The original sentence of 10 months' imprisonment, suspended upon the appellant entering into an 18-month good behaviour bond, was affirmed.

Orders