R v Morgan - [2008] VSCA 24

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 84 of 2007

THE QUEEN
	v
SHAUN LAWRENCE MORGAN

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JUDGES:	MAXWELL P, HANSEN and WILLIAMS AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2008
DATE OF JUDGMENT:	14 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 24

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Criminal law – Sentencing – Appellant aged 20 at time of offending pleaded guilty to assault and armed robbery committed with 18 year old co-offender – Crown conceded on plea that appellant’s role in armed robbery less serious than co-offender – Co-offender pleaded not guilty and convicted by jury – Co-offender sentenced to 18 months in Youth Training Centre – Appellant sentenced to five years for armed robbery and total effective sentence of five years with non-parole period of three years – Mitigating factors – Parity – Appellant’s sentence manifestly excessive – Appellant re-sentenced to two and a half years with non-parole period of 19 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Dr S McNicol	Angela Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr A S Dickenson	Martin Irwin & Richards

MAXWELL P:

I will invite Hansen AJA to deliver the first judgment.

HANSEN AJA:

Shaun Lawrence Morgan (“the appellant”) pleaded guilty to one count of assault and one count of armed robbery. The offences were committed with a co-offender, Shane Adam Johnson, in February 2004. At the time of the offending, Morgan was aged 20 years and Johnson was aged 18 years. More than three years later, on 26 March 2007, a judge in the County Court at Mildura sentenced Morgan to one year in prison for the assault, and five years’ imprisonment for the armed robbery, resulting in a total effective sentence of five years’ imprisonment with a non-parole period of three years. Pre-sentence detention already served was 297 days. On 13 March 2007, Johnson had been sentenced by the same judge to 18 months’ detention in a Youth Training Centre.

Morgan appeals against his sentence pursuant to leave granted by Chernov JA on 1 February 2008, the application for leave having alleged a manifestly excessive sentence. The Crown conceded that specific and general error occurred, thus meaning it was likely that this Court would be required to re-sentence the appellant. And given that any reduction in sentence may be significant, it was considered that the hearing of the appeal should be expedited.

The relevant facts of the offending, as found by the judge, can be stated briefly. At 9.10am on 1 February 2004, the victim, Mr Woods, looked out the window of his house and saw Morgan and Johnson standing next to his car in the rear car-port, Morgan holding a number-plate under his arm. Woods confronted both offenders and told them he did not want them to take his number plates. Morgan told Woods to shut up and then punched him in the face. Johnson then grabbed Woods from behind and held a knife against his throat, telling Woods to shut up and not attract attention. Johnson…

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.

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Details

Case: [2008] VSCA 24
Decision Date: 14 February 2008

CaseChat Overview and Summary

In the case of R v Morgan, the appellant stood before the court having pleaded guilty to charges of assault and armed robbery. The offences were committed in conjunction with an 18-year-old co-offender. Notably, the Crown conceded that the appellant’s role in the armed robbery was less serious than that of the co-offender. The co-offender, who had pleaded not guilty, was subsequently convicted by a jury and received a sentence of 18 months in a Youth Training Centre. The appellant, on the other hand, was sentenced to five years for the armed robbery, with a total effective sentence of five years and a non-parole period of three years. This disparity in sentencing, coupled with the appellant’s age at the time of offending, led to the appeal against the severity of the sentence imposed.

The legal issues central to this appeal revolved around the principle of parity in sentencing and the assessment of the appropriate punishment for the appellant’s role in the crimes. The appellant argued that the original sentence was manifestly excessive, particularly when compared to the sentence of the co-offender, who had a more active role in the armed robbery. The court was tasked with determining whether the appellant’s sentence was proportionate to the seriousness of his involvement and whether it adhered to the principle of parity, ensuring that similarly situated offenders receive comparable sentences.

The court, in considering the appeal, took into account the mitigating factors surrounding the appellant’s case, including his age and the lesser role in the armed robbery. It also weighed the Crown’s concession that the appellant’s involvement was less serious than that of the co-offender. After careful deliberation, the court found that the original sentence imposed on the appellant was manifestly excessive and did not align with the principle of parity. Consequently, the court re-sentenced the appellant to two and a half years, with a non-parole period of 19 months, reflecting a more appropriate punishment in line with the appellant’s role and the principle of parity.

Orders