Morgan v The Queen - [2016] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0057

BRENTON MORGAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 June 2016
DATE OF JUDGMENT:	20 June 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 143
JUDGMENT APPEALED FROM:	DPP v Morgan [2015] VCC 1873 (Judge Hogan)

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CRIMINAL LAW – Application for leave to appeal against sentence – Drugs, Poisons and Controlled Substances Act 1981 s 73(1) imposes onus on accused to satisfy the court on the balance of probabilities that possession of a drug of dependence was not for any purpose relating to trafficking in that drug – Sentencing judge did not deny applicant procedural fairness by not warning him that the judge might find that he had not discharged the onus.

CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to a total effective sentence of 40 months with a non-parole period of 20 months for 9 charges on indictment and 7 transferred summary charges – Charges on indictment included 2 charges of trafficking in a drug of dependence, 4 charges of possessing a drug of dependence, 1 charge of possessing a tablet press and 2 firearms offences – Whether individual sentences, orders for cumulation and total effective sentence manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G M E Morgan	Paul Vale Criminal Lawyers
For the Respondent	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA
KYROU JA:

Introduction and summary

On 13 November 2015, the applicant (now aged 25) pleaded guilty to the charges set out in the table below. Following a plea on the same date, he was sentenced on 16 December 2015 as follows:

Charge No

Offence

Maximum

Sentence

Cumulation

Charges on Indictment E12168638

1 Possess unregistered handgun [Firearms Act1996 (‘FA’) s 7B(1)] 600 penalty units (‘PU’) or 7 yrs (first offence) 7 mths 2 mths

2 Possess unregistered category A longarm [FA s 6A(1)] 120 PU or 2 yrs (first offence) 3 mths 1 mth

3 Traffick in a drug of dependence (MDMA) [Drugs, Poisons and Controlled Substances Act1981 (‘DPCSA’) s 71AC] 15 yrs 2 yrs Base

4 Possess a drug of dependence (Methandienone) [DPCSA s 73] 400 PU and/or 5 yrs [DPCSA s 73(1)(c)] 6 mths 1 mth

5 Possess a drug of dependence (Testosterone) [DPCSA s 73] 400 PU and/or 5 yrs [DPCSA s 73(1)(c)] 3 mths 1 mth

6 Possess a drug of dependence (Methandriol) [DPCSA s 73] 400 PU and/or 5 yrs [DPCSA s 73(1)(c)] 2 mths 1 mth

7 Possess a drug of dependence (Methiopropamine)
[DPCSA s 73] 30 PU and/or 1 yr [DPCSA s 73(1)(b)] 5 mths 2 mths

8 Traffick in a drug of dependence (Methylamphetamine)
[DPCSA s 71AC] 15 yrs 9 mths 3 mths

9 Possess a tablet press
[DPCSA s 71C] 600 PU and/or 5 yrs 8 mths 2 mths

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: Brenton Morgan v The Queen [2016] VSCA 143
Case: [2016] VSCA 143
Decision Date: 20 June 2016

CaseChat Overview and Summary

In Morgan v The Queen, the appellant sought leave to appeal against his sentence imposed following convictions for various drug and firearm offences. The appellant was sentenced to a total effective sentence of 40 months with a non-parole period of 20 months. The appeal against sentence centred on whether the sentence imposed was manifestly excessive and whether the sentencing judge erred by not warning the appellant that the onus was on him to satisfy the court on the balance of probabilities that his possession of a drug of dependence was not for any purpose relating to trafficking in that drug.

The legal issues in this case were whether the individual sentences, the orders for cumulation, and the total effective sentence were manifestly excessive, and whether the appellant was denied procedural fairness by the sentencing judge's failure to warn him of the onus of proof in relation to his possession of a drug of dependence. The appellant argued that the sentence imposed was manifestly excessive given the nature and circumstances of his offending, and the sentencing judge's failure to warn him of the onus of proof amounted to a procedural unfairness.

The court found that the total effective sentence, while severe, was not manifestly excessive. The court noted that the appellant had a significant criminal history and had committed multiple serious offences. The court also held that the sentencing judge did not deny the appellant procedural fairness by not warning him of the onus of proof, as it was not a requirement of procedural fairness in the context of this case. The court held that the onus placed on the appellant under the Drugs, Poisons and Controlled Substances Act 1981 s 73(1) was a substantive legal issue, not a procedural one. The application for leave to appeal was therefore refused.

No orders were made regarding the appeal against sentence.

Orders