R v Morgan [2008] VSCA 24

2 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.

3 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.

4 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 also put the blade across Woods' mouth and threatened to kill him. Johnson then used the knife to remove the front number plate from Woods' car. Woods received one or two broken teeth and a sore jaw from Morgan's punch, and also suffered cuts to each side of his mouth from Johnson's knife attack.

5 Morgan was interviewed in June 2004 and gave police a full account of what happened, by and large agreeing with Woods' version of events. Morgan pleaded guilty to the two counts referred to above. The plea proceeded on the basis that the Crown accepted that Morgan was involved in the initial assault by punching, and then aided and abetted Johnson in the armed robbery. Morgan was originally unaware that Johnson had a knife, but once he became aware of that fact, he did nothing to stop Johnson using it in the armed robbery.

6 Johnson was interviewed by the police in March 2004 and gave a "no comment" record of interview. Johnson pleaded not guilty to four counts - theft, assault, making threats to kill, and armed robbery - but was convicted by a jury and sentenced as referred to above.

(1) The sentence was manifestly excessive. The sentence imposed on count 2 and the non-parole period imposed were both manifestly excessive.

(2) The sentencing judge failed to observe the principle of parity.

(3) The sentencing judge failed to take into account or give adequate weight to the relative roles in the offending played by the co-offender and the appellant.

(4) The sentencing judge misapprehended the facts. This ground related solely to the judge erroneously stating that Morgan was 21 years old at the time of the offences, when he was in fact 20. This ground is clearly made out and I say nothing more about it.

8 I now turn to the submissions advanced as to each ground of appeal.

9 As to ground 1, counsel in his written submissions noted that the judge accepted the following important mitigating factors:

a) Remorse - the appellant gave a frank record of interview and made admissions to the matters forming the basis of the plea; the report by the psychologist Bernard Healey stated that remorse was "evident"; and the appellant did all he could to prevent the victim from having to revisit the issue by having to give evidence at trial.

c) Prospects of rehabilitation - Healey's report refers to the appellant's "strong resolves to cease the use of illicit drugs and alcohol" and intent to undergo counselling.

d) Delay - during the delay between offending and sentence, the appellant's criminality decreased, when compared to the frequency of his criminal behaviour before these offences.

11 As to ground 2, in his written submission counsel submitted that the judge erred by failing to take into consideration the principles of parity when sentencing the appellant, or alternatively that the reasonable observer would view the differences in the sentences imposed as so great as to give rise to a justifiable sense of grievance. Counsel noted that although Johnson had fewer prior convictions than Morgan, Johnson played the more serious role in the armed robbery and did not plead guilty, yet was sentenced to 18 months in a Youth Training Centre while Morgan, who had played a less serious role and had pleaded guilty, was sentenced to five years' imprisonment with a non-parole period of three years. There were mitigating factors the judge accepted as being relevant to both offenders, namely prospects of rehabilitation, youth, delay, and aboriginality. There were also mitigating factors applicable only to the appellant, namely remorse, plea of guilty, the loss of his child and the inability to attend the funeral due to imprisonment.

12 As to ground 3, the submission emphasised that the use of the knife was the most serious aggravating factor in the case, and it was accepted by the Crown that the appellant did not know of the knife prior to its use.

13 The Crown filed a short written submission in response. As to ground 1, it was submitted that if the sentence for armed robbery and the non-parole period were within the range, they were "at the very outer limit". As to ground 2, it was accepted that there was no reference to parity in the judge's sentencing remarks, and that subject to any report to this Court by the judge[1], there is such a disparity in the sentences that this Court might infer that the issue was overlooked by the judge. If that concession was acceptable to the court, it would be appropriate to re-sentence the appellant. As to ground 3, it was submitted that "if the appellant was not aware of the co-accused's possession of the knife, prior to the robbery, then clearly there was a difference in the relative roles of the appellant and the co-accused" (my italics). I interpolate that counsel for the Crown on the plea indeed accepted that Morgan was originally unaware that Johnson had a knife, and the plea proceeded on that basis. It was submitted that the judge outlined the relative roles played by Morgan and Johnson, and although he did not expressly state that he took into account the difference in their relative roles, this was insufficient to reveal any error in the judge's reasoning.

14 In my view, the sentence of five years' imprisonment for the count of armed robbery, and the non-parole period of three years' imprisonment, were manifestly excessive. I so conclude for the following reasons.

15 In his sentencing remarks, the judge appeared to accept all the mitigating factors set out above. The judge also referred to Morgan's personal history in some detail. He mentioned his unstable family life - linked to his father's alcohol, violence, and his mother's use of alcohol to blot out memories of that violence - which, by the time he was 14, saw Morgan living on the streets of Mildura, drinking alcohol, smoking cannabis and in trouble with the law. By 17 he was using amphetamines and heroin, and he later added benzodiazepam, Xanax and Serepax to his cocktail of drugs. His father and brother were also, at the time of sentencing, in prison, although his two sisters were "quite law-abiding citizens". The judge referred to the tragic disappearance and death of Morgan's young son in 2002, Morgan having earlier left the mother in the context of his substance abuse. Morgan also missed the funeral as he was in custody waiting for the present case to proceed and was not advised of the memorial service until after the event. The judge said that he was conscious of Morgan's aboriginality and had turned his mind to it as best he could because "some of the factors personal to you are, indeed, very sad".

16 The judge was aware of Morgan's criminal antecedents. He referred to five separate appearances in the Children's Court, four of which were without conviction and one which led to imprisonment (for causing injury intentionally, assault with a weapon, and armed robbery). There were three further court appearances which resulted in a community-based order in 2002 (for destroying property, unlawful assault, throwing a missile, and firearms offences), a sentence of imprisonment in 2003 (for robbery, false imprisonment, and theft), and a further sentence of imprisonment in 2003 (for theft and unlawful assault).

17 The judge also said that he placed "significant weight upon general deterrence to dissuade those in the community from using knives, particularly in the manner in which your co-accused, Mr Johnson, used this knife".

18 Having regard to all the circumstances, and specifically allowing for Morgan's significant history before the courts, which involves offences of violence including armed robbery, and the need for general deterrence, the sentence of five years' imprisonment for the armed robbery and the non-parole period of three years' imprisonment were manifestly excessive.

19 Further, when regard is had to the sentence imposed on the co-offender Johnson, I am strengthened in my conclusion that Morgan's sentence was manifestly excessive. As I have said, Johnson faced more charges than Morgan, on the Crown's concession had a greater role in the armed robbery (at least in the sense that it was he who wielded the knife), made a no-comment interview, and pleaded not guilty, yet was sentenced far more leniently than Morgan. The judge seemed to reach a more favourable view of Johnson's prospects of rehabilitation than he did in Morgan's case. In particular the judge referred to the forensic psychologist's opinion that Johnson's prospects for rehabilitation were "very good", as he had spent the past two years in a stable and supportive relationship with a woman who does not have drug and alcohol problems. Consistent with this focus on rehabilitation, the judge seemed to place greater emphasis on Johnson's youth than he did on Morgan's youth. Further, after referring to the principles in R v Mills,[2] including the often cited statement of Batt JA that in the case of a youthful offender rehabilitation is usually far more important than general deterrence, the judge noted that while Johnson was not a first offender, he had "very few previous court appearances; two as I understand it; and none for any form of violence". In short, the judge placed greater emphasis on rehabilitation than general deterrence in Johnson's case. In Morgan's case, however, the judge placed too much weight on general deterrence, especially bearing in mind Morgan's lesser role in the use of the knife. The result was a sentence on the armed robbery count, and a non-parole period, which were so out of line with the sentence imposed on Johnson as to bespeak error, and to produce in a fair-minded observer a justifiable sense of grievance at the inequality of sentence as between co-offenders.**

**20 I would add that although statistics are of limited use, they lend further support to the view that the appellant's sentence was excessive. In the year 2005-2006, in those cases of armed robbery where an immediate custodial sentence was imposed, the average sentence was three years' imprisonment. The maximum sentence imposed was seven years' imprisonment. The appellant's sentence of five years' imprisonment would fall in the 90th percentile, that is to say it would be more severe than 90 percent of armed robbery sentences.

21 In these circumstances, I am of the view that a different sentence should be passed on Morgan, so I would allow his appeal and re-sentence him. In so doing, the Court must be mindful not to trivialise the seriousness of Morgan's offending. Although he did not personally wield the knife, by his plea he admitted that he punched the victim and otherwise assisted in the armed robbery. The maximum penalty for armed robbery is 25 years' imprisonment. I have regard to all the mitigating factors advanced on Morgan's behalf both at the plea and in this Court. I also have regard to the Victim Impact Statement which conveys in simple yet effective terms the fear felt by Mr Woods and the effect that the offending has had on him. Bearing all these matters in mind, I would propose the following orders:

**(b) The sentence passed in the County Court at Mildura on 26 March 2007 be quashed.

(c) In lieu thereof the appellant be sentenced to a period of imprisonment of one year on count 1 and a period of imprisonment of two-and-a-half years on count 2.

(d) The total effective sentence be two-and-a-half years' imprisonment, with a non-parole period of 19 months.

A declaration, of course, would have to be made as to the period served. If the date of commencement is 8 August, my calculation would produce 556 days, but it seems there is a point of contention to be resolved as to the commencement date.

22 I too would allow the appeal, for the reasons which his Honour has given, and would re-sentence the appellant as his Honour proposes.

23 I would allow the appeal for the reasons given by his Honour and agree that the appellant be re-sentenced accordingly.

1. Sentence passed in the County Court on 26 March 2007 quashed. In lieu thereof the appellant is sentenced as follows:

giving a total effective sentence of two-and-a-half years' imprisonment.

1. The Court fixes a non-parole period of 19 months.
2. We declare that a period of 556 days, subject to any agreed alteration, has already been served pursuant to the sentence and we direct that the fact that this declaration has been made and its details be noted in the records of the Court.

[1] I note that there was no report from the judge.

[2] (1998) 4 VR 235.