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
IndictmentOffence
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…
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- AGLC
- Morgan v The Queen [2013] VSCA 33
- Case
- [2013] VSCA 33
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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