DPP v Morgan [2008] VSCA 258

1 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.

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

3 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.

4 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'.

5 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;

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

(4) count 4, recklessly causing serious injury to Mr Douglass.

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

(1) count 1, armed robbery of money and a mobile phone from a female victim with an offensive weapon, namely a knife;

(3) count 3, recklessly causing serious injury to his cousin's boyfriend during the same incident as the assault of his cousin.

7 Prior to being bailed in respect of the first offences, Mr Morgan had served 41 days in custody.

8 During 2006, there was a contested committal hearing in respect of the first offences. The second offences proceeded by way of hand-up brief at the committal.

9 The second offences came on for hearing first, as Mr Morgan had determined to plead guilty. The plea hearing took place in the County Court on 16 November 2006. The sentencing judge reserved his decision. Mr Morgan was sentenced on 27 November 2006. In summary, he was sentenced as follows:

(1) on count 1, armed robbery - four years and six months' imprisonment;

(2) on count 2, common assault - 12 months' imprisonment;

(3) on count 3, recklessly causing serious injury - 18 months' imprisonment;

(4) the sentencing judge ordered that four months of the sentence imposed on count 2 and eight months of the sentence imposed on count 3 be served cumulatively on each other and on the sentence imposed on count 1;

(5) accordingly, the total effective sentence was five years and six months' imprisonment;

(6) the sentencing judge ordered that Mr Morgan serve a minimum of two years and six months before becoming eligible for parole.

10 The trial in respect of the charges for the first offences was fixed for hearing at the County Court in Mildura on 15 February 2007. On that day, Mr Morgan changed his plea from not guilty to guilty. The plea hearing took place on 16 February 2007. Mr Morgan was sentenced on 19 February 2007. In summary, Mr Morgan was sentenced as follows:

(1) on count 2, threatening to kill Mr Douglass - fifteen months' imprisonment;

(2) on count 3, intentionally causing serious injury to Mr Douglass - three years' imprisonment;

(3) the sentencing judge ordered that the whole of the 15 months' imprisonment imposed in respect of count 2 be served concurrently with the sentence imposed on count 3;

(4) further, the sentencing judge ordered that 21 months of the sentence imposed on count 3 be served concurrently with the sentence being served by Mr Morgan in respect of the second offences;

(5) the effect of the above sentences was to add 15 months to both the total effective sentence and the non-parole period fixed in respect of the second offences. The total effective sentence to be served, consequent upon the second judge's order for partial concurrency, is six years and nine months. In discussion following the pronouncement of sentence, the sentencing judge clarified the new parole date as being 15 months later than the existing parole date in respect of the sentences imposed for the first offences, less 41 days already served by Mr Morgan in respect of the first offences prior to him being bailed in respect of them.

11 Mr Morgan sought leave to appeal against the sentences imposed upon him in respect of the second offences. Leave to appeal was refused. He exercised his right of appeal against the refusal of leave to appeal. However, this appeal was abandoned during the course of the hearing.

12 Mr Morgan was granted leave to appeal in respect of the sentences imposed upon him for the first offences. The grounds of appeal are as follows. First, that the sentencing judge failed to give sufficient weight to the principle of totality. Second, that the sentences were manifestly excessive in all the circumstances. Third, that the sentencing judge failed to appropriately set a new single non-parole period.

13 Although they were not abandoned in a formal sense, counsel for Mr Morgan did not press the first two grounds. He was right not to do so, and there is no need to consider them further. Accordingly, the only ground which falls for consideration is the third ground concerning the fixing of a single non-parole period. In that regard, an issue arose as to the form of the new non-parole period fixed by the sentencing judge. In particular, as to whether it was sufficient, in order to comply with s 14(1) of the Sentencing Act 1991 (Vic), for the sentencing judge to merely state that the non-parole period fixed in respect of the sentences imposed for the second offences would be extended for a period of 15 months less 41 days.

14 Section 14(1) of the Sentencing Act provides:

14. Fixing of new non-parole period in respect of multiple sentences

(1) If-

(a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and

(b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period-

the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete.

15 In R v Rich (No 2),[1] Brooking JA stated that, although sentencing judges have a choice as regards the date from which they make a new single non-parole period run, it was desirable that there be uniformity of practice and that the new single non-parole period should be made to commence on the date on which it is fixed.[2] The sentencing judge in this case did not, either formally or informally, act in accordance with the suggested uniform practice. However, as a matter of substance, there is no appealable error in him having, at least informally, fixed a new single non-parole period by reference to the date of the sentences being served in respect of the second offences. Notwithstanding this, the practice of informally extending an existing non-parole period should be discouraged in future cases. One thing which Brooking JA did make clear in R v Rich (No 2) is that, whatever date is chosen, sentencing judges should ensure that, in fixing new single non-parole periods, they expressly state the commencing date of the new single non-parole period. Further, in this case, the sentencing judge did not even calculate the precise new non-parole period, from whatever date it was to run. This also should be discouraged as a practice.

16 However, nothing turns upon this issue in the present case as it was properly conceded by senior counsel for the Crown that the sentencing judge made an error in simply adding 15 months to both the total sentences and non-parole period imposed and fixed in respect of the second offences. Although the sentencing judge had an option to determine that there should be no non-parole period in respect of the sentences imposed by him,[3] such a determination would need to be express and be supported by the reasons for reaching it. In the circumstances, it falls for this Court to re-determine the appropriate single non-parole period to be fixed in respect of the cumulated sentences imposed upon Mr Morgan for the first offences and the second offences. This task involves consideration of the circumstances of offending, Mr Morgan's antecedents, aggravating factors, mitigating factors and the sentencing purposes specified in s 5(1) of the Sentencing Act.

17 Having regard to the narrow issue which remains for determination, it is unnecessary to record the circumstances of Mr Morgan's offending in any detail. As appears below, primacy should be given to Mr Morgan's antecedents, his youth and the need to establish conditions which offer the best chance of Mr Morgan being rehabilitated.

18 The circumstances of the first offences involved wholly unjustified violence accompanied by a threat to kill the victim, Mr Douglass. The offences were very serious and represented a continuum of violent behaviour by Mr Morgan as represented by his voluminous prior convictions. Mr Douglass was wholly innocent and a victim of being at the wrong place at the wrong time. Fortunately for Mr Morgan, Mr Douglass is a man of robust personality and a forgiving spirit. Notwithstanding the seriousness of the attack, his victim impact statement was balanced and indicated that he suffers no ongoing physical or mental symptoms as a result of the violent assault upon him.

19 The circumstances of the second offences also involve inexcusable violence by Mr Morgan. In company with a co-accused, he approached a young woman walking home after having dined with friends. He asked her for money and, when he was given only 20 cents, produced a long-bladed knife which he pointed towards the victim's stomach and said in an aggressive voice: 'If you scream, I'm going to kill you, if you scream, I'm going to kill you. What else have you got?' Understandably the victim then allowed Mr Morgan to rifle through her handbag. Mr Morgan stole from her a mobile phone and approximately $80.

20 The victim impact statement of the woman who was the subject of the armed robbery detailed severe effects upon her life as a result of the offence. She suffers from disturbed sleep, regular nightmares, migraines, fatigue and her capacity to go about her normal activities has been substantially affected. She finds it difficult, for example, to walk alone anywhere at night and was forced to move house because she lived only a few hundred metres from the scene of the violent offences against her.

21 Following this armed robbery, in a separate incident some three weeks later, Mr Morgan violently assaulted his 15 year old female cousin and her boyfriend (who was Mr Morgan's co-offender in respect of the armed robbery) when he attempted to come to her aid. The assaults were accompanied by grossly offensive language, including calling his 15 year old cousin 'a black slut bitch'.

22 As appears above, one of the County Court judges who sentenced Mr Morgan 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. From his sentencing remarks, it is obvious that the second County Court judge who sentenced Mr Morgan took a similar view. There is a report from a forensic psychologist which supports this view and provides detail of the circumstances of deprivation, violence and abuse which have governed Mr Morgan's life and have no doubt contributed to his repeated criminal behaviour. In addition to this criminal behaviour, there is no doubt that the circumstances in which Mr Morgan was raised have resulted in him having a long history of serious alcohol and drug abuse since an early age.

23 Notwithstanding Mr Morgan's antecedents and his extraordinarily long and frequent history of criminal offending, each of the County Court judges who sentenced him reached the view that he is not a hopeless case for rehabilitation. In this regard, reference was made to Mr Morgan's youth, support from his sister, mother and grandmother and the fact that, notwithstanding that he has been violent towards her, his partner is prepared to give him 'another go' on his release from prison. His partner apparently sees some good in him and, at least in her eyes, there is hope.

24 In all of the circumstances, the two County Court judges who dealt with Mr Morgan considered that he had a 'glimmer of hope' or 'a flicker of hope' for rehabilitation and that it was the duty of the Court to sentence Mr Morgan in a manner which increased the possibility of his rehabilitation, however remote that possibility might be. For this reason, notwithstanding the seriousness of the offences and Mr Morgan's history of offending, the sentencing judge for the second offences (which were by far the most serious) accepted the submission by Mr Morgan's counsel that the Court should fix a non-parole period which was lower than normal, in order to maximise the chances of Mr Morgan's rehabilitation. It was put, and accepted by the judge, that a longer period of supervised parole would be more likely to assist the rehabilitation process than a short parole period. Accordingly, the judge fixed a non-parole period in respect of the imprisonment imposed for the second offences which approximated 45 per cent of those sentences.

25 In my view, in all the circumstances of this case, the judge was right to have taken this course. Having regard to Mr Morgan's youth, rehabilitation was at the forefront of the applicable sentencing considerations. Further, in this regard, the judge noted that Mr Morgan was on the brink of becoming totally institutionalised and that the Court should endeavour to avoid that result if at all possible. These matters bear directly on the new single non-parole period which must be fixed in accordance with s 14(1).

26 When an appeal succeeds and in consequence a new single non-parole period is fixed, this Court takes as its commencing date the date of the sentence under appeal.[4] On that basis, the new single non-parole period will have as its commencing date 19 February 2007. In my opinion, the appropriate new single non-parole period from that date is three years. Having regard to the date from which this new single non-parole period is to commence, the effect is to add approximately 9 months to the non-parole period fixed on 27 November 2006 in respect of the second offences.

2. The sentence imposed by the County Court on 19 February 2007 be set aside and in lieu thereof the appellant be sentenced as follows:

• on count 2 (threat to kill) - 15 months' imprisonment;
• on count 3 (intentionally causing serious injury) - three years' imprisonment;
• the whole of the sentence on count 2 be served concurrently with the sentence on count 3;
• 21 months of the sentence on count 3 be served concurrently with the sentence already being served.

3. Pursuant to s 14(1) of the Sentencing Act, a new single non-parole period of three years is fixed, commencing on 19 February 2007.

4. It is declared that a period of 41 days is reckoned as having been served under the sentence, and there will be noted in the records of the Court the fact that this declaration was made and its details.

[1] (2002) 4 VR 155.

[3] Sentencing Act, s 14(1)(b).

[4] R v Rich (No 2) (2002) 4 VR 155, [106].