R v Morgan - [2007] VSCA 192

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 277 of 2006

THE QUEEN
	v.
BRADLEY JOSEPH IVAN MORGAN

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JUDGES:	CHERNOV, VINCENT and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2007
DATE OF JUDGMENT:	30 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 192

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CRIMINAL LAW – Sentencing – Armed robbery – Opportunistic attack on pedestrian – Aboriginal offender – Whether sentence manifestly excessive – R v Fuller-Cust (2002) 6 VR 496 – Whether judge erred in failing to place applicant in Aboriginal rehabilitation centre – Whether consideration given to alternative sentencing dispositions in light of “Victorian Aboriginal Justice Agreement Phase 2” – Parity – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D G Just	Victoria Legal Aid

CHERNOV JA:

On 19 June 2006, each of the applicant, Bradley Joseph Ivan Morgan, who is now aged 36, and his co-offender, Michael James Bourke, who is aged 39, pleaded guilty in the County Court at Melbourne to one count of armed robbery committed on 12 November 2005. The maximum penalty for that offence is 25 years' imprisonment. The applicant admitted numerous prior convictions, including convictions for theft, failing to answer bail and drug offences from nine court appearances between June 1990 and January 2004. After hearing a plea in mitigation of sentence, on 16 August 2006, the learned sentencing judge sentenced the applicant to three years' imprisonment and directed that he serve a minimum of 20 months before becoming eligible for parole. His co-offender was sentenced to two years and nine months' imprisonment with a non-parole period of 18 months. The applicant sought leave to appeal against sentence, and his application, which first came on for hearing before a single judge of this Court on 16 February 2007 pursuant to s.582 of the Crimes Act 1958, is now before us pursuant to his Honour's reference.

Before dealing with the applicant's arguments in support of his application, it is necessary to describe briefly the circumstances of the offending and of the applicant as they were found by his Honour. At approximately 3.10 pm on Saturday 12 November 2005 the applicant and his co-offender were in the Fitzroy Gardens in East Melbourne. The victim was a 46-year-old Asian male who was taking photographs in a secluded area of the gardens. The applicant approached him from behind, grabbed him around the neck and placed a knife to his throat for approximately 20 seconds. In the course of this he took the victim's camera and made a demand for his wallet. The victim handed him his wallet, from which the applicant removed $120 cash before throwing it to the ground. While the applicant held the knife to his victim's throat he called upon his co-offender to take the victim's camera bag which was on the nearby seat. The offenders then fled the scene, with Bourke carrying the camera bag whilst the applicant had the…

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 [2007] VSCA 192
Case: [2007] VSCA 192
Decision Date: 30 August 2007

CaseChat Overview and Summary

In the matter of R v Morgan, the applicant, an Aboriginal man, was convicted of armed robbery for an opportunistic attack on a pedestrian. The case was heard in the Court of Appeal of Victoria. The central issue before the court was whether the sentence imposed was manifestly excessive, and if the trial judge erred by not considering placement in an Aboriginal rehabilitation centre. The applicant also contested whether the trial judge adequately considered alternative sentencing dispositions in light of the “Victorian Aboriginal Justice Agreement Phase 2”.

The court began by examining the severity of the crime and the need for deterrence and denunciation. It noted the armed nature of the robbery and the impact on the victim. The court then assessed whether the sentence was manifestly excessive, taking into account all relevant factors, including the Aboriginal background of the offender. The court found that the sentence was not manifestly excessive as it was proportionate to the gravity of the offence. Regarding the placement in an Aboriginal rehabilitation centre, the court determined that the trial judge had not erred by not considering this option, as it was not appropriate given the circumstances of the case. The court also concluded that the trial judge had sufficiently considered alternative sentencing options and found them unsuitable. The court found that the sentencing process was fair and adhered to the principles of parity.

In conclusion, the court dismissed the applicant’s appeal, finding no error in the sentence or the sentencing process. The sentence was upheld as appropriate and proportionate to the offence. The court's decision underscored the importance of considering all relevant factors in sentencing, including the offender's background, while ensuring the sentence met the objectives of deterrence and denunciation.

Orders