Court of Appeal (Vic)|2010-09-22|Before: Nettle JA, Harper JA

Morgan v The Queen [2010] VSCA 248 (22 September 2010)

R v Morgan (Unreported, County Court of Victoria, Judge Thornton, 15 December 2008)

3 At about 4.45pm on 19 August 2006 the appellant Craig Morgan, and Timothy Brenton went to a boarding house in St Kilda. They entered Room 4. Present in that room were Mark Walker, Johan Woods and Alexandra Sagin. Brenton armed himself with a hammer that he found in the room. Morgan and Brenton immediately demanded money and drugs.

4 Brenton held the hammer in the air in a threatening manner. Morgan punched Johan Woods in the face, dislodging his glasses. Woods handed over $25 and said he did not have any drugs. Brenton swung the hammer at Walker, striking his left hand. He then swung it at Sagin. Walker intervened but was struck again on the left hand. Walker grappled with Brenton holding him around the neck. Morgan went to Brenton's assistance and grabbed Walker also around the neck with his right arm. Brenton, thus freed from Walker's hold, then struck Walker's face and head forcibly with the hammer. Walker managed to eject the duo from the room and secure the door. He suffered a laceration to the scalp, swelling to cheek and bruising and swelling to the left hand.

5 The appellant pleaded guilty in the County Court to aggravated burglary (Count 1), robbery whilst knowing his co-offender had with him an offensive weapon (Count 2) and recklessly causing injury to Mr Walker (Count 3). Brenton pleaded guilty to a similar indictment although Count 2 was worded to reflect his role in the armed robbery.

6 Both the appellant and Brenton were sentenced as follows:

6 months of the sentences on each of Counts 2 and 3 were to be served cumulatively on the sentence imposed on Count 1. The total effective sentence for both was 4 years and 6 months with a minimum of 2 years and 6 months before becoming eligible for parole.

The appellant argues that the sentence was manifestly excessive (Ground 1) and that a lesser sentence ought to have been imposed on him than his co-accused (Ground 2). I shall consider this parity ground first.

7 I have had the advantage of reading Brenton's sentence. The following propositions can be stated shortly:

Brenton possessed the hammer at all relevant times.
The first physical contact was the appellant's punch to Mr Woods' face. He then handed the appellant money.
When Brenton was at risk of being physically overpowered by Walker, the appellant restrained Walker, thus freeing Brenton who then struck Walker with the hammer.
Brenton had 52 prior convictions over a 19 year period. The appellant had 107 prior convictions over 20 years.[1] Brenton's involved significantly more serious offending, including for armed robbery and aggravated burglary. The appellant had numerous prior convictions for burglary and theft and several for assaults, including causing injury recklessly, causing injury intentionally and causing serious injury recklessly.
Both pleaded guilty and received an equivalent discount for this.[2]

8 There was another relevant factor concerning Brenton's sentence. Brenton had 28 months imprisonment owing in New South Wales from offences committed in 1997. He was sentenced to six years imprisonment with an additional three to be served on parole for armed robbery and escaping from custody. No further information concerning the circumstances of this offending was provided to her Honour. He was released in September 2002 but his parole order was revoked for failing to report to his supervising officer and failing to reside at an authorised address. His extradition to New South Wales has been approved, but it remains entirely speculative as to whether he will , in fact, be extradited or have to serve any further significant term of imprisonment in that state. The prosecution in Brenton's plea conceded that the principle of totality applied to the outstanding New South Wales sentence and also conceded that s 5(2AA) of the Sentencing Act 1991 operated to provide that her Honour could not have regard to the potential that the New South Wales sentence would be shortened by executive action. If the revocation of his parole is confirmed by a custody and review hearing he will be required to serve a minimum of 12 months in custody before being eligible for release on parole.

9 Her Honour applied the well known principles expressed in Mill v R,[3] R v Piacentino and R v Ahmad[4] in considering the application of the principle of totality to sentences outstanding interstate. Ultimately, her Honour concluded that the 'principle of totality must be applied generally here.'

10 It is apparent that her Honour moderated the Brenton sentence to reflect this principle of totality. I consider that there is no error disclosed in adopting this course. Counsel for the appellant argued, inter alia, that even if her Honour were entitled to moderate the Brenton sentence as she did, the distinctions between the appellant's role in the offending and his prior history, as compared to Brenton, were such that some residual recognition of these matters ought to have been reflected in the sentences imposed. Counsel reminded us that the prosecution at the appellant's plea accepted that his overall role was a 'lesser' one, his antecedents 'not as serious' and that her Honour found that he has made significant progress towards rehabilitation whilst on bail for these offences. He successfully spent five months on the CISP bail program, he had accepted a Naltrexone implant in June 2008 and had remained drug free from that time. The appellant had also performed regular voluntary work with community organisations. In short, her Honour expressed some optimism at the appellant's prospects for rehabilitation.

11 It is apparent that her Honour considered that these mitigating factors available to the appellant were roughly balanced by the application of the totality principle to Brenton's sentence and so identical sentences were imposed. The parity principle is based on the broader principle of equal justice.[5] The totality principle is but one factor that goes into the sentencing mix. I consider that, even allowing for a moderation of Brenton's sentence for totality, there ought to have been some greater recognition in the appellant's sentence for his role in the offending, his less serious prior history and his brighter prospects for rehabilitation. I consider that the sentences as they currently stand could engender a 'justifiable sense of grievance'[6] in the appellant. Accordingly, I consider that this ground has been made out.

12 It is unnecessary to consider Ground 1. I propose that the appellant be re-sentenced as follows:

On Count 1 he be convicted and sentenced to 3 years and 6 months imprisonment.

On Count 2 he be convicted and sentenced to 2 years imprisonment.

On Count 3 he be convicted and sentenced to 12 months imprisonment. Three months of the sentences imposed on Counts 2 and 3 are to be served cumulatively on each other and upon the sentence imposed on Count 1.

The total effective sentence is four years imprisonment. I propose a minimum non-parole period of two years.

I would declare that 665 days of pre-sentence detention including this day be reckoned as already having been served under this sentence and that such declaration be entered in the records of the Court.

I would further declare pursuant to s 6AAA of the Sentencing Act 1991 but for his plea of guilty I would have sentenced the appellant to a total effective sentence of five and a half years' imprisonment with a non-parole period of three and a half years.

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[1] The learned sentencing Judge reviewed these in detail at para [18ff] of her sentence.

[2] Although Brenton withdrew his plea and then reinstated it, the prosecution accepted on his plea that his discount for the plea ought be identical to the appellants.

[5] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610-611 (Mason J).

Morgan v The Queen [2010] VSCA 248

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Morgan v The Queen [2010] VSCA 248 (22 September 2010)

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