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Morgan v The Queen

Morgan v The Queen

Case [2013] VSCA 33 4 March 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0137

MICHAEL ROBERT MORGAN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 February 2013
DATE OF JUDGMENT	4 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 33
JUDGMENT APPEALED FROM	DPP v Morgan and Howard (Unreported, County Court of Victoria, Judge Howard, 3 October 2011)

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CRIMINAL LAW — Appeal against sentence — Totality — Appellant convicted on multiple counts of burglary, theft and drug possession committed between November 2008 and May 2009 — Appellant burgled 16 pharmacies and stole pseudoephedrine — Sentenced to five years’ imprisonment with non-parole period of three years and six months — Prior to being dealt with for these offences appellant had been extradited from South Australia after being released on parole — Previously sentenced in that State for dishonesty and driving offences committed in June-July 2009 — Sentence of four years, seven months and 17 days’ imprisonment imposed for those offences including a period of cancelled parole owing for earlier South Australian offending — Appellant’s unexpired South Australian parole not cancelled as at time sentenced for Victorian offending — Appellant in continuous custody since July 2009 — Appellant potentially to serve eight years and 11 months’ imprisonment with non-parole period of five years — Whether sentencing judge failed to take totality into account — Whether sentencing judge fell into specific error in failing to take totality into account — Whether appellant’s Victorian offending connected in time and character to South Australian offending — Whether any such connection necessary to invoke totality in the circumstances — Specific error established — Whether lesser sentence should be imposed — Lengthy and relevant criminal history — Offences committed on parole — Appeal dismissed — R v Todd [1982] 2 NSWLR 517; Mill v The Queen (1988) 166 CLR 59 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C A Boston	Sullivan Braham Pty Ltd
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

WEINBERG JA
PRIEST JA:

On 26 September 2011, the appellant, Michael Morgan, together with a co-accused, Brendan Howard, pleaded guilty in the County Court at Melbourne to a series of burglaries, thefts and drug offences.

On 3 October 2011, the appellant was sentenced as follows:

Charge on
Indictment

Offence

Maximum

Sentence imposed

Cumulation

1 Burglary [s 76(1) Crimes Act 1958]
10 years

2 years

Base

2 Theft [s 74(1) Crimes Act 1958]
10 years
12 months
20 days

3 Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]
5 years

6 months

10 days

4 Theft [s 74(1) Crimes Act 1958]
10 years

9 months

15 days

5 Burglary [s 76(1) Crimes Act 1958]
10 years

2 years

30 days

6 Theft [s 74(1) Crimes Act 1958]
10 years

12 months

20 days

7 Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances…

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 The Queen

Details

AGLC: Morgan v The Queen [2013] VSCA 33
Case: [2013] VSCA 33
Decision Date: 4 March 2013

CaseChat Overview and Summary

The appeal before the Court was brought by the appellant, Morgan, against a sentence imposed by a lower court. Morgan was convicted on multiple counts of burglary, theft, and drug possession, which occurred between November 2008 and May 2009. The appellant burgled 16 pharmacies and stole pseudoephedrine. He was sentenced to five years' imprisonment with a non-parole period of three years and six months. The appellant had previously been extradited from South Australia after being released on parole. He had also been sentenced in that state for dishonesty and driving offences committed between June and July 2009, resulting in a sentence of four years, seven months, and 17 days' imprisonment, including a period of cancelled parole for earlier South Australian offending. The appellant's unexpired South Australian parole was not cancelled at the time he was sentenced for the Victorian offences. The appellant had been in continuous custody since July 2009. The potential total imprisonment term, considering both sets of offences, was eight years and 11 months, with a non-parole period of five years.

The central legal issues before the Court were whether the sentencing judge failed to take into account the totality of the appellant's criminal history and offending, and whether the sentencing judge made a specific error in not considering the totality. The Court had to determine whether the appellant's Victorian offending was connected in time and character to his South Australian offending and whether any such connection was necessary to invoke the principle of totality in the circumstances. The appellant argued that his lengthy and relevant criminal history, coupled with the fact that the offences were committed while on parole, warranted a lesser sentence. The Crown, on the other hand, contended that the sentencing judge had adequately considered the totality of the appellant's criminal history and that no specific error had been made.

The Court found that the sentencing judge had indeed failed to take into account the totality of the appellant's criminal history and offending, establishing a specific error. However, the Court held that the appellant's lengthy and relevant criminal history, as well as the fact that the offences were committed on parole, did not warrant a lesser sentence. The Court dismissed the appeal, applying the principles set out in R v Todd and Mill v The Queen. The Court held that the sentencing judge had appropriately exercised their discretion in imposing the sentence, taking into account all relevant factors, including the appellant's criminal history and the seriousness of the offending. The Court concluded that the totality principle had been appropriately considered, and the sentence imposed was not manifestly inadequate.

The final orders of the Court were to dismiss the appeal against sentence, thereby upholding the original sentence imposed by the lower court. The Court emphasised the importance of considering the totality of an offender's criminal history and offending when sentencing, but found that in this case, the sentencing judge had adequately exercised their discretion. The appellant's appeal was dismissed, and the original sentence remained in place.

Orders