R v Morgan - [2008] VSCA 258

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 240 of 2007

THE QUEEN
	Respondent
v
LEON MORGAN	Appellant

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JUDGES:	MAXWELL P, VINCENT JA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2008
DATE OF JUDGMENT:	9 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 258	1^st Revision – 10 December 2008

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CRIMINAL LAW- Sentencing- Non-parole period- Armed robbery and violent offences- Young offender with long history of prior convictions for like offences- Appellant sentenced whilst serving non-parole period under previous sentence- Requirement to fix new single non-parole period in respect of all sentences- Date from which new single non-parole period is to commence- Sentencing Act1991 (Vic) s 14(1)- R v Rich (No 2) (2002) 4 VR 155 applied- Appeal allowed and appellant re-sentenced to new single non-parole period commencing on date of later conviction.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Robert Stary Lawyers

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Hargrave AJA. I too would allow the appeal, for the reasons which His Honour gives.

VINCENT JA:

I have read the judgment of Hargrave AJA and I agree that the appeal should be allowed for the reasons His Honour has expressed.

HARGRAVE AJA:

Introduction

Leon Morgan is a young man aged 23 years with a long history of criminal offending dating back to when he was aged 12 years. At the time he was sentenced for the crimes in question, he had over 90 prior convictions from about 20 court appearances. The offences span a wide range of conduct, including serious offences relating to violence, dishonesty, drugs and driving. One of the County Court judges who sentenced him for the offences which are the subject of these appeals described him as having ‘a background of deprivation which is hard to comprehend’ and commented that, from early childhood, he was exposed to violence of every level, alcohol abuse and drugs. He has never known any stability in his life.

There are two sets of charges which are relevant to the appeals before the Court. First, charges arising out of a violent assault committed by Mr Morgan and others in Mildura on 12 November 2005. I will refer to these as ‘the first offences’. Second, charges arising out of an armed robbery and accompanying assault in March 2006, and further assaults committed by Mr Morgan in conjunction with another co‑accused in April 2006 whilst Mr Morgan was on bail for the first offences. I will refer to these offences as ‘the second offences’.

The charges laid against Mr Morgan in respect of the first offences were as follows:

(1) count 1, theft of marijuana – this charge was not proceeded with;

(2) count 2, threatening to kill Rodney Douglass;

(3) count 3, intentionally causing serious injury to Mr Douglass;

(4) count 4, recklessly causing serious injury…

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 R v Morgan

Details

AGLC: R v Morgan [2008] VSCA 258
Case: [2008] VSCA 258
Decision Date: 9 December 2008

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Morgan, the case reached the court following the appellant's sentencing for armed robbery and other violent offences. Morgan, a young offender with a lengthy history of prior convictions for similar crimes, was sentenced while already serving a non-parole period for a previous sentence. The central issue before the court was to determine the appropriate non-parole period for all sentences and the date from which this new single non-parole period should commence. The court had to consider the principles established in the Sentencing Act 1991 (Vic) and the case of R v Rich (No 2) (2002) 4 VR 155.

The legal issues addressed by the court involved the proper application of the Sentencing Act 1991 (Vic) to establish a new single non-parole period for the appellant's cumulative sentences. The court also had to ascertain the date from which this new non-parole period should begin. The relevant statutory provision, section 14(1) of the Act, requires a new single non-parole period to be fixed for all sentences imposed, and the decision in R v Rich provided guidance on this matter. The court's task was to balance the need for punishment and deterrence with the principles of parity and proportionality in sentencing.

The court found that the appropriate approach was to fix a new single non-parole period for all sentences, taking into account the principles of parity and proportionality, as well as the appellant's history of offending. The court held that the new single non-parole period should commence from the date of the later conviction, as per the guidelines in R v Rich. Consequently, the appeal was allowed, and the appellant was re-sentenced to a new single non-parole period that would commence on the date of the later conviction. This decision ensured that the appellant's sentences were properly aligned with the statutory requirements and the established legal principles.

Orders