Director of Public Prosecutions v Morell (a pseudonym)

[2017] VCC 904

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACHERY MORELL (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2017
DATE OF SENTENCE:	30 June 2017
CASE MAY BE CITED AS:	DPP v Morell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 904

REASONS FOR SENTENCE
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Subject:
Catchwords:  Criminal damage, ICI, Threat to kill. Indecent assault; All offences committed upon mother. Late plea.
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Office of Public Prosecutions
For the Accused	Ms M. Harris	Emma Turnbull Lawyers

HIS HONOUR: 

1Zachery Morell[1], you have pleaded guilty to the four charges laid on indictment No.F12193369.1.

[1] This is a pseudonym

2There is one charge of criminal damage, one charge of intentionally causing injury, one charge of making a threat to kill and one charge of indecent assault.  The offending was all directed at your mother.  It was extraordinary conduct.  You have admitted a short but relevant criminal history containing as it does amongst other offences a handful of appearances for violence offences.  You were born on 31 July 1978 and are now 38 years of age. Each of the offences is punishable by a maximum term of 10 years' imprisonment.

3The prosecutor Mr McKenry opened this matter to me yesterday in accordance with an agreed written prosecution opening that was dated 28 April 2017.  That summary was marked as Exhibit A.  Some photographs of your victim were marked as Exhibit C on the plea.  The summary is an agreed statement as your counsel made clear and in such circumstances I see no need to describe the full factual setting in these my reasons.  No dispute was taken with any aspect of the summary or with the seriousness of your criminal conduct.  I will not go beyond the agreed written facts other than in matters discussed in open court before you, for instance the length of the hospital stay of your mother.

4I still should say something about your offending.  You arrived back into Victoria with your partner and two children in June 2015.  You chose to stay with your mother in her cabin as you were no longer welcome at your brother's house.  It is clear enough from your interview with the police and from the psychological and psychiatric materials submitted on the plea that you have a very problematic relationship with your mother, to say the least.  Toxic would be a better word.  There has been much resentment, disharmony and hostility arising from your belief that you were physically abused as a child.  You resented what you believed was her failure to protect you from sexual abuse at the hands of a son of a friend of your mother's and from physical abuse from your mothers' various partners.  Also it is suggested that she physically abused you herself. 

5Now of course I have heard only one side of the story:  your account, your grievances.  It is plain enough from the victim impact statement of your mother that she would probably dispute much of your account as she grappled in that statement to understand why you, her son, did what you did to her on the night in question.  I will perhaps return to this later in my reasons but whatever the reason, however justified your feeling was, it is plain that there was a simmering resentment and anger felt by you towards your mother.

6There had been very little contact with your mother in the lead up to your arrival back into Victoria.  On the day in question you and your family had gone into the city to a Richmond Football Club training session.  Upon returning to Frankston by train, you had to catch a taxi from the station and got back quite late at night and in your interview and in the conference with Dr Ong, you made clear that you were upset that your mother had not picked you up from the station and your sense of agitation at her reason for not doing so in that she was drinking with your brother.  You were cross if not angry.  You had some alcohol yourself.

7You chose that evening to then talk about family history.  Who knows why? You were there as a guest and you did not need to stay with your mother.  You asked if her father was violent towards her and if she was punished as a child.  You moved on then to express grievances about the way that she had looked after you, allegations which she resisted and the situation then took a turn for the worse.  You suddenly attacked her, grabbing her by the hair and lifting her off her feet and throwing her into her bedroom.  You punched the bedroom door as you followed her in, hence the criminal damage charge. 

8The nature of the physical attack is spelt out in the summary.  It was extremely violent and of some duration.  It was accompanied by very explicit threats to kill, threats that were reinforced by you at one stage returning to the room with a knife and holding the blade towards her eye saying you would pop her eye out.  At one point early on in the assault you forced her head down onto a marble dressing table.  She begged you to desist and that is when you repeated the threat, "I'm going to finish you off, I'm going to finish you this time."

9You had punched her repeatedly to the face.  You later choked her with both hands until she could not breathe.  You then pulled her head back, removed your penis from your pants and pressed your penis towards your mother's mouth, touching her lips with your penis.  You continued to threaten her and then you released her.  She crawled away into a wardrobe which was where she was found by your brother quite some time later covered in blood.

10This was on any view of it a terrifying attack and one where the stunned neighbours heard your mothers' screams from the cabin.  Your own children and partner were in the immediate vicinity.  In fact your partner had rung your brother to alert him to the event as it was occurring.  You were arrested at the scene and said you wanted to be taken away.  You were.  In the police interview that followed, you denied even knowing your mother.  Probably the less said about the interview the better.  The trouble is, though, I cannot ignore it.  It was an extraordinary and revealing interview where you denounced her, said you wished she was dead, hoped that she died and described her as a “scumbag”, “a fucking idiot” and “a cunt”.  When shown photographs of her facial injuries, injuries caused by you, you laughed and said, "I'll do 15 years standing on my head knowing she's not here."

11You were given the chance to make a final statement in relation to the allegations and your words were these:  "Rot in hell, bitch".  You denied any assault.  Now lots of people say lots of things in the heat of the moment.  What is more unusual is that you seem to maintain an extraordinary lack of feeling in the more recent psychiatric assessment and that was in March of 2017.

12The summary sets out the nature of the injuries sustained by your mother.  The photographs display some of the physical injuries.  There were multiple injuries including a nasal fracture.  They were nothing to laugh about.  The fact is, until the change in the definition of serious injury which occurred a number of years ago, these would probably have been classified as serious injuries.  Of course I am sentencing you for intentionally causing injury, not serious injury as the new definition applies to my task.  There is now a much higher threshold for serious injury.

13Your mother spent eight days in hospital.  You were her son.  You attacked her in this way in her own home when you were a visitor.  You were 118 kilograms or close to 18 or 19 stone and 6 foot 6 inches in the old scale.  She was a 59-year-old woman and quite defenceless, and she was your mother.

14This was very serious criminal conduct.  The matter settled on the first day of the trial which was listed to commence on 27 February 2017.  There had been earlier attempts in the Magistrates' Court to settle the matter but they had not succeeded owing to the existence of a sexual offence.  The defence response filed in this court in mid-December of 2016 admitted the damage to the door but all the other charges were in dispute.  When the matter came before me on the first day of the trial, it was stood down.  There were some discussions and it settled.  The indecent assault charge took the place of the rape charge that had previously been laid and so, as I say, the matter settled on the first day of the trial.

15So much then for my summary of the summary.  The full summary will remain on the court file.  What I have not set out is that following the very sensible resolution of the matter on the first day of the trial, your then counsel Ms Broughton then successfully applied to adjourn the matter for the plea to be conducted on 30 March.  That was so that a psychiatric assessment could take place and a report could be obtained.  The 30 March date was vacated when it became apparent that the expert report would not then be available.  The plea was then listed on 28 April. 

16Ms Broughton appeared on that day but announced that she was in receipt of instructions to change your plea.  There then followed a series of subsequent mentions dealing with that issue.  Those mentions spanned almost two months and in that period we experienced the ultimate withdrawal of Ms Broughton and her instructors, given the fact of the potential change of plea.  A new firm of solicitors had to be found and then engaged. 

17The matter seemed to drag on and on and ultimately on the last hearing, I fixed some dates to try to bring the matter to a head.  Either there was to be a change of plea application - and the basis of that was to be flagged - or there was not.  It had to be finalised one way or the other.  Ultimately you have chosen to maintain your guilty plea and indeed I had you re-arraigned yesterday and you once again pleaded guilty to these same four charges. 

18So I set out that chronology not as suggesting that it for one moment involves any aggravation or misconduct on your behalf.  It does not.  I do not hold those events against you at all; I told you I would not, and I do not.  Rather I set it out as explaining how it is I am sentencing you in late June 2017.

Impact

19I turn to the impact then of your crimes.  There are victim impact statements from your mother and also from your brother.  There was no issue taken with either of the impact statements at all.  However, I believe that I must exercise some degree of caution in relation to the brother's statement.  He is not the direct victim of course.  I do not doubt what he says in terms of the way he feels and the downward turn in his life but I wonder whether the effects are just too indirect to be taken into account.  Of course he had the shock of finding his mother in the way that he did.  I do not downplay the effect of that and undoubtedly in that sense he is a victim and is clearly entitled to file a victim impact statement which he has.  I have no doubt at all that he has been to a degree impacted by your crime upon your and his mother.  But the many physical and other downturns in his life including things such as homelessness and unemployment, separation from a partner and drug-taking, they might be put down to so many other factors and I do not believe it is open to me to factor those in as impacts of your offending in the absence of expert psychological opinion.  I isolated on the plea the matters that I was prepared to have regard to in that impact statement and I see no need to repeat that discussion in my reasons.  No issue was taken when I said what I would take into account.

20Your mother is of course the direct victim.  Given the summary that I have read, it is hardly surprising that there has been a very significant impact upon your mother arising from these crimes.  How could there not be?  It is not just the physical injuries though they were bad enough.  It is the emotional impact as well.  I see no need to set out the impact as described in that statement.  The statement, and your brother's for that matter, were read out aloud and I have read your mother's statement again overnight.

21Your conduct will simply never be forgotten by your mother.  How could it be?  It was a terrifying attack in her own home and with the repulsive act the subject of Charge 4.  The impacts have been many and varied and involve almost every aspect of her life.  Now it is not my job to be overwhelmed by this sort of material.  I am not here to respond emotionally and the impact of a crime or crimes is but one of a large number of matters that a judge must take into account.  But I do take into account the very significant impact of your crimes upon your direct victim.  I give far less weight to the impact upon the indirect victim but do pay regard to the relevant and admissible portions of your brother's impact statement as I said I would.

Mitigation

22I turn now then to the matters raised in mitigation. Your counsel Ms Harris raised a number of matters in mitigation.  In the main, they were: 

·Your guilty plea;

·The presence of some very limited remorse;

·The context of the offending being an obviously dysfunctional early childhood with deep resentment and anger the driver for this serious offending;

·The fact of the current prison term being your first;

·Your still having good prospects of rehabilitation with a plan upon eventual release to live with your partner and family and to work which you have done in the past.

23She relied upon the two expert reports placed before me and conceded the high seriousness of the offending but argued that you could be sentenced to a term of imprisonment in combination with a community corrections order.  Alternatively if I was against her in relation to that submission, that a shorter non-parole period be fixed in this case.

Prosecution

24Mr McKenry, who appeared on behalf of the Director, argued that such a disposition - that is, a community corrections order in combination with a term of imprisonment - was not open given the serious nature of the offending.  You had been given opportunities for therapy and counselling in the past and had not taken them.  The interview he argued was a revealing account in that your grievances and the issues arising from them would not just go away.  As to the offending, he submitted that it was high level offending involving a vulnerable victim in her own home, a victim who was your own mother, and with your own children and partner in the immediate vicinity. 

25I had remanded you in custody on 28 April as the potential change of plea application pertained only to the indecent assault charge.  You have been in custody since.

Guilty Plea

26I turn then to the various submissions that have been made on your behalf.  You have pleaded guilty.  It was a late plea at least chronologically, no one says otherwise, but I cannot and do not lose sight of the decision taken by the Director of Public Prosecutions to proceed with an indecent assault as opposed to the rape charge.  Sensibly so in my view, for what it is worth.  The removal of the rape charge and the laying of the indecent assault is obviously something that is relevant for me to take into account in relation to an assessment of the timing of the plea.  Maybe the matter might have settled earlier than it did had there been sensible discussions between the parties.  Now there had been efforts to resolve the matter in the Magistrates' Court and they had been unsuccessful.  The sexual element was obviously the problem there.  The trial itself was running as a contest in relation to any physical or sexual act or threatening words though the damage to the door was admitted.  

27As late as the plea is, what is still important is that you have ultimately taken responsibility for your offending.  I must give you credit for your decision to plead guilty.  Giving evidence can be a stressful experience for witnesses.  Here the prospect of your mother and brother giving evidence at trial before a jury was an unpleasant one to contemplate.  They have at least been spared that experience though of course they did give evidence at the committal.  The community has been saved the time, expense and effort associated with the conduct of a trial in this court.  In this way you have facilitated the course of justice.  I must reward you for your decision to plead guilty.  I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury.  I also do pay regard to your level of cooperation with the police; this really was not the subject of a separate submission from your counsel but you made at least some admissions to the police when you were interviewed and I take that into account in your favour.

Remorse

28I turn then now to the issue of remorse and I can deal with this quite swiftly.  You have pleaded guilty.  A guilty plea is usually evidence of at least some remorse.  However that is as far as it goes here.  Your interview with the police was an extraordinary account.  As I have said, to be fair to you, it was close to the event and close then to the heat of the moment.  So I factor that into the equation.  However it had you in an unvarnished fashion spelling out your deep hatred of your mother, the toxic nature of the relationship from your standpoint.  That is a state of mind which is unlikely to alter.

29The assessment by Dr Ong, the psychiatrist, is much later.  He sees you in March of this year and still there was a real issue raised in that report as to your having any feeling of genuine remorse for what you have done.  In fact there were some expressions suggesting positively the absence of remorse.  Your counsel was not making a song and dance about remorse here and she was wise not to.  She submitted that I should find some modest or limited remorse implied by the guilty plea.  She accepted that suggestions made by you to her in conference as to feeling remorse had some serious issues thrown up by the report of Dr Ong and of course by the potential change of plea application I have referred to.

30Other than your guilty plea, there is nothing before me suggesting any genuine remorse at all in this case.  Your positive statements indicative as to lack of remorse leave me in a position where it is impossible to conclude on the balance of probabilities that you have any significant or genuine remorse at all.  Still, I will treat the guilty plea as evidencing some very limited remorse.

Backhground

31I turn then to your background.  I accept the personal background that has been placed before me in the excellent plea conducted by your counsel.  I see no need to restate it in any detail at all.  It is referred to in detail in her written outline and is referred to in the reports from the psychiatrist and the psychologist.  There is far greater detail still in those reports.

32You are 38 years of age.  You were born and raised in Melbourne.  Your parents separated when you were a toddler.  You were educated at a variety of schools.  You had limited schooling and on your account of your early childhood, you had a disadvantaged and unenviable background on any view of it when regard is had to the family history placed before me.  We are speaking of the fragmentation of the family with movement back and forth, of sexual abuse by the son of a family friend and acts of violence committed upon you in your early years.  Moving on then to bullying at school, exposure to violence and later a criminal milieu at the hands of your mother's partners.  Frustration and deep impact arising from your mother's failure to believe or act on your claims of being sexual abused.

33Now as I said earlier, there are two sides to every story and I infer that your mother would present a very different side to this story.  That much is plain enough from her victim impact statement questioning why you would have done what you did.  Further of course the trigger for the violence on the night was her in fact taking issue with your recall of your childhood and her role.  So it is hard for me to know who is right and who is wrong.  However things such as fragmentation of the family and numerous schools were not in any way contentious, nor the fact that there seemingly was some sexual abuse at the hands of another although no doubt differing views as to the way that that was handled and why.  You could resent her for the acts occurring even in a setting where she had behaved entirely appropriately as a parent.  It is very plain that you deeply resent your mother.  Rightly or wrongly, I do not know which, you hold her responsible for much that happened to you as a child. 

34Anyway it is a plea on your behalf and I am prepared to take into account your unenviable and disadvantaged background as far as I am permitted to, a background that rightly or wrongly seemingly has dismayed and plagued you in the years since, and undoubtedly forms the context of this offending taking place on the night in question.  That, in combination with the disinhibition produced by alcohol.  So we have anger, simmering resentment and disinhibition.  Pretty dangerous bedfellows.

35Returning to your background, unlike so very many who come before the court, you seemingly have not been scared of hard work and you have worked in a number of demanding industries over very many years.  You have a good employment record.

36You also have a criminal record and that is undoubtedly relevant to my task.  It is not the longest record by any stretch of the imagination - indeed, it is quite a short one - but there are three separate matters of violence in your history.  Your counsel explained those matters to me and it is clear that they are far less serious instances of violence.  You have received two community-based orders in the past, one of those was breached as you chose to leave the State.  You have had also long term problems with both alcohol and drugs, and violence has gone hand in glove with the use of substances as well as the relatively rough industries that you have worked in across in Western Australia.

37You have been in custody now for 63 days and it has been a very difficult experience for you with limits placed upon visits.  Your partner has visited you but your children have not been permitted to.  No one can tell me why but there is no reason to that think this will persist.  You miss your family deeply including a child you have scarcely seen and your first experience of custody to this point has therefore been very difficult and I take that into account.

Rehabilitation

38No submission was addressed to me in terms of delay.  The fact is you have stayed out of trouble for the sizeable time that you were on bail and I do take that into account when making judgments as to your prospects.  The delay in that sense holds some benefit to you though it cannot have been easy holding your life in suspense awaiting the finalisation of the matter.  I take that into account as well.

39What then am I to make of your prospects of rehabilitation?  I am confident enough that the process of being arrested and charged and then brought before the courts, and then serving the sizeable sentence I will soon pronounce will have a significant enough impact in deterring you from committing crimes such as these in the future.  However it is hard to be too upbeat about your prospects.  You are a relatively long term user of drugs and an abuser of alcohol.  No doubt your prospects are far, far better if you can abstain from those substances.  You also have a serious anger management problem and disinhibition by alcohol or drugs is a real problem.  You have exhibited a preparedness to resort too readily to violence.  

40The psychologist recognises the role of disinhibition in her risk assessment.  It is a low risk of committing offences in her view but that is conditional upon your abstinence.  The question then is, can you abstain?  That is a big “if” here.  If you cannot, then you have a decent enough risk of re-offending.  

41Clearly enough you must have no future contact with your mother given your deep-seated animosity or hatred towards her and your stated position as to the possibility of future offending against her.  You told Dr Ong, "It's hard to say it won't happen again if I saw her".  You feel anger and frustration not just towards your mother, and the control of your anger presents and has presented in the past a real issue for you.

42On the other side of the equation, your history before the courts is, as I have said, not too lengthy.  Given your family background, it could be a good deal worse and you do have support from your partner and a very decent employment record.  There are some excellent references which I have read again overnight and I do take into account.  I do not see the need to descend to the detail of them.  What they show is a very different man, a very different side of the person that is disclosed in the factual summary here.  There is mention made of a job to go to.  You are not necessarily certain that you will return to that job and I think that is a sensible approach given the dimensions of the sentence that I am shortly to pronounce.

43I believe I can only be quite guarded in all of the circumstances.  It is difficult always to know what the future holds for a person in the dock.  It is difficult to know what the future holds for you.  You have not engaged in the weekly counselling recommended by the psychologist back in July of 2015.  I am prepared to assess your prospects of rehabilitation as being quite good if you can abstain from alcohol and drug use and if you can obtain some meaningful treatment in relation to the demons of your past.

Psychological and Psychiatric Materials

44I have mentioned the reports from Dr Ong and from Ms Gianvanni.  That second report is quite dated now and was made following a single assessment in July 2015 and at a point where you were denying the offending.  It does not greatly assist me in terms of any diagnosis as none was made though it has a very helpful and detailed personal history.  The reports are relied upon, your counsel told me, as showing your background and the context of the offending.  What is plain enough is that you have felt anger and frustration towards your mother for many years.  You do have an anger management problem; you do harbour very strong feelings of resentment towards your mother.  You have had treatment and counselling in the past but to no avail.  It is very disturbing indeed that you felt, as you put it, "good" as you violently assaulted your mother (see Dr Ong, p.10, paragraph 4).  It is equally disturbing that you do not seem to feel much if any empathy or much remorse for what you must know are the very significant crimes committed upon your own mother.  Your counsel conceded explicitly that the case of Verdins v The Queen was not being relied upon in any fashion in this case.  I am confident that that submission was well founded, having read those reports.  I take into account the reports in the manner raised by your counsel.

The offending

45As to the offences themselves, your counsel conceded that this was serious offending.  She was right.  In fact, in my judgment, it was extremely serious offending.  The intentionally causing injury offence can sometimes be constituted by a single blow.  This instance involved significant violence.  It was sustained and serious conduct, with multiple blows and acts committed by you upon a woman in her own home at night.  And then you just left her.  The injuries were a long way from the bottom of the range of injuries, involving as they did an eight-day hospital stay and the lasting emotional impact spoken of in the impact statement.

46They were caused by a very large man with a relevant criminal history upon a defenceless woman.  That woman was your mother.  A mother who was begging you, her son, to stop the assault.  It is very clearly a very serious example of the offence.  The threat to kill was also a serious example of that offence.  These were not just words hinting obliquely at some unfortunate outcome.  These were very explicit words and they were backed up if you will by the physical violence the subject of Charge 2 and the production of the knife.  They were terrifying words.  Why would she not believe your threats as you engaged in the brutal physical attack?  So it is a high level example of that offence in my view.  

47The criminal damage is obviously the least serious of the offences.  That is plain enough.  

48As to the indecent assault, well, it is unique in my experience.  I have not, either as judge or counsel ever come across a sexual offence committed by a man of your age upon his own mother.  I do not believe your conduct had any sexual motivation.  It is inescapable that it was part of the punishment and humiliation of your mother.  I am satisfied of that beyond reasonable doubt.  Punishment by you for her perceived sins against you, either her own sins or her failure to protect you from others.  To place your penis up against the lips of a defenceless and battered woman, that woman being your mother, in the midst of the violent assault and the threatening conduct that had preceded the indecent assault ranks it in my view as an extremely serious example of the offence.

Sentencing

49I turn now then to the purposes of sentencing.  I have to consider a number of purposes of sentencing.  They include but they are not limited only to your prospects of rehabilitation.  Your rehabilitation is obviously relevant to my task and I do not ignore it.  But there are many other sentencing purposes.  I am required to punish you.  That is very significant purpose for this sort of matter.  I must also denounce your conduct and I do.  Again that is an important matter.  Your conduct was simply outrageous.  It was dangerous, it was violent, it was disgusting and repugnant.  You should be deeply ashamed at what you have done but you do not appear to be.

50There are, as I have said, other purposes of sentencing and one of those is the principle of specific deterrence.  That is the need for this court to seek to deter you from offending in the future.  I must give that principle some weight in my sentencing task.  You have committed crimes of violence in the past.  They are admittedly of a different order.  You have not taken the chances offered to you by the courts.  This offending involved a most disturbing escalation.  You have little by way of remorse and mention yourself the risk of future offending should you see your mother ever again.  You must understand and get clear in your head that you must never do anything like this ever again.  

51There is the issue with your anger and the control of your anger.  I must give this purpose - that is, specific deterrence - some weight and the same must be said of the need to give weight to the protection of the community.  I cannot ignore that purpose either.

52General deterrence is clearly a very important sentencing purpose in this case.  That is the need to send a message to other individuals in the community who might be minded to commit this sort of serious violent and sexual offending.  It is totally unacceptable in any decent society and that is the position whatever shortcomings as a parent, if any, your mother had demonstrated over your life.  To resort to violence is simply not on.  It can never be the answer.  This level of violence must be strongly discouraged.  So must retribution be discouraged as well by the courts.  People must understand that conduct such as yours will simply not be tolerated by the courts.

Current Sentencing Practices

53I pay regard to current sentencing practices.  I have looked at three of the sentencing snapshots, No.174 for threat to kill, No.189 for intentionally causing injury and No.208 for indecent assault.  I have not troubled myself with the criminal damage snapshot.  There was some discussion in court as to the median and most common prison sentences disclosed in that statistical material.  I have looked also at the Judicial College Victoria sentencing manual that deals with an overview of intentionally causing injury and indecent assault cases and summaries of those matters as well as the threat case summaries.  

54But having done all of that, having looked at other instances of other sentences and having looked at the statistics, what I then have to do is to come back to sentence you for your crimes because the statistics do not provide the answer nor do the other cases. That is because every case is different and so too every offender.  Your offending is obviously very serious, there is no question about that.  There are some unique features including of course the commission of a sexual offence arising out of desire to punish your mother for her perceived sins.  I am not required to sentence according to the median or some statistical measure but must do and pay regard to current sentencing practices. 

55This offending in relation to Charge 2, 3 and 4 falls well above the mid-range of offence seriousness.  Well above.  I have taken into account all of the materials placed before me and the submissions made by your counsel.  As I have said, your counsel conducted an excellent plea.  She argued that it would be open to admit you to a community corrections order upon your release from prison.  That submission was in my view entirely unrealistic given the nature of your offending.  Prison is the only available alternative for your offending and such is the seriousness of the offending that I do not believe it is even open to consider a community corrections order in combination.  That power only exists if a sentence of less than 12 months' imprisonment is selected.

56The Court of Appeal in the case of Basic that was delivered in 2016 spelt out that the community corrections order disposition was clearly not having its desired effect, that it was being misused and/or misunderstood by judges who were passing sentences almost as a ploy or a device to keep open the disposition and that this approach tended to distort the whole process of sentencing.  As the Court of Appeal stated in Basic, this is not the way that sentencing is meant to take place.  It distracted from a true consideration of the gravity of the offending and what that did is led to artificial or compressed prison sentences which were imposed to allow the imposition of a community corrections order in combination.

57The Court of Appeal in that decision of Basic urged the Parliament to take action.  Whether as a result of that request or otherwise, I do not know, but Parliament did act and they have moved now to significantly restrict the availability of a community corrections order disposition.  One such change which applies to my sentencing task is the limit to the order being made in combination with a prison sentence of greater than 12 months.  These changes were brought into effect by the Sentencing (Community Correction Order) and other Acts Amendment Act 2016. Previously it had been two years as a ceiling and frankly even under the old regime such an outcome could never have been open in this case.

58Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached.  They cannot here.  Your own counsel concedes that a prison term is required but was arguing in favour of a combined order.  In this case a community corrections order in combination with a term of up to 12 months' imprisonment would come nowhere near meeting the various purposes of sentencing.  It is not open to me.  It would not be open to me unless I abandoned the need to give adequate weight to the various sentencing purposes that I am required to actually take into account and just set my sight on the end destination of a community corrections order disposition.  That is precisely what I must not do as a judge. It is not my job to hunt for devices or to compress sentences artificially to render a particular disposition available to the court even if I can see some advantages in such a disposition.

59In appropriate cases since the case of Boulton that was decided back in 2014, I have in fact imposed prison terms, sometimes significant ones, in combination with a community corrections order.  Those combined type dispositions can be useful and they provide certainty of release unlike a non-parole period, as well as providing for potentially a longer period of supervision in the community than may exist by the fixing of a non-parole period.  Those combined type dispositions I think can target the particular needs of the offender. 

60However my duty is to impose appropriate sentences.  The submission as to a mixed disposition of up to 12 months' imprisonment with release on a CCO is simply not open to me in the sound exercise of a sentencing discretion.  I believe that given the nature of the offending, I must impose sentences the dimensions of which make impossible any combination type disposition.  Your offending is far too serious to do otherwise.  The sentence needs to adequately reflect general and specific deterrence, denunciation and punishment, and a community corrections order even in conjunction with a term of up to 12 months would not achieve these purposes.  It would not even go close to doing so in my judgment. 

61So I believe I have to pass appropriate individual sentences, express levels of cumulation and then fix a non-parole period in this case.  The Adult Parole Board will be in a position to assess your needs at around the time of your becoming eligible for release on parole and that, I am afraid, is a distant event.  You definitely have some complex therapeutic needs.  It is obvious that there is a need for meaningful and prolonged treatment and hopefully that can be attended to in the future.

62I do not know whether you will be released on parole or not.  That is not for me to consider and a judge passing sentence has no power or control over the Adult Parole Board.  In fact I am not even permitted to take their possible action into account.  What I have to proceed on is the footing that you will serve every day of the head sentence which I will soon pronounce and that is brought about by the provisions of the Sentencing Act at s.5(2AA).

Totality

63I have taken into account the principle of totality.  This was a single episode giving rise to these four offences on this indictment.  However the offences involve different conduct, differing elements and obviously with differing impacts.  There is a very nasty physical assault being intentionally causing injury.  It was a sustained physical attack.  There was a realistic and believable threat to kill and the extraordinary sexual offence actually designed to humiliate and punish.  Though part of a single episode, I still must adequately recognise the differing offences and the impact. 

64Some significant cumulation is required in relation to Charge 2, 3 and 4 in my view.  I regard the criminal damage as the least serious offence by far and I believe the threat is far less serious than the remaining two charges.  As to Charge 2 and 4, the fact is reasonable minds might differ as to which of those offences was the most serious.  They are both extremely serious offences, make no mistake.

65I moderate as far as I believe I can the level of cumulation.  So the extent of my orders as to concurrency pay regard to the principle of totality.  I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality.  Your overall criminality was high indeed.  I have engaged in a last look at the sentences to be imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you and to ensure that the sentence is just and appropriate and commensurate with your overall criminality.

464ZF

66I have been requested to make a forensic sample order. That application is not opposed and I pronounce the order in the terms in which it is sought. Pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.  I am satisfied that the making of the order is justified owing to the seriousness of the offending, the existence of your prior convictions, the fact that it is not opposed and that in my judgment, the order is in the public interest. 

67So I have signed and I now pronounce that order. Notwithstanding your present lack of opposition to the making of the order, I have to tell you that when the time comes for the taking of a mouth scraping under the supervision of an authorised member, they may use reasonable force to enable that procedure to be conducted.  This is not an invasive matter, it is a swab being run around on the inside of your cheeks.  They can use reasonable force.  It should be a simple enough business. No doubt if they were confronted with any sort of opposition to it at the time, they can either use reasonable force, or make application back to this court for the authorisation of a blood sample which to this point I have not authorised.

Sentence

68I now move then to sentence you, Mr Morell.  I wonder if you just stand up briefly please, thank you.  Yes, all right.

69On Charge 1 which is the charge of criminal damage, I convict and sentence you to 3 months' imprisonment.

70On Charge 2 which is the charge of intentionally causing injury, I convict and sentence you to 38 months or 3 years and 2 months' imprisonment.  That is the base sentence here.

71On Charge 3 threat to kill, I convict and sentence you to 18 months' imprisonment. 

72On Charge 4, that is the charge of indecent assault, I convict and sentence you to 3 years' imprisonment.

Cumulation

73I direct then that 12 months of the sentence imposed on Charge 4 - that is the indecent assault - and four months of the sentence imposed on Charge 3 - that is the threat to kill - are to be served cumulatively upon the base sentence and upon each other.  The sentence on the criminal damage charge will be served concurrently with the base and all the other sentences.

Total Effective Sentence

74This results then in a total effective sentence of 54 months or four and a half years' imprisonment.  I fix a period of 32 months or two years and a half years during which you will not be eligible for release on parole.

Pre-Sentence Detention

75You have been in custody in relation to these matters already for a period of 63 days.  So you have already served that time under this sentence and that declaration is to be noted in the records of the court.

6AAA

76I have told you that I have taken into account your guilty plea and reduced your sentence as a result of it, and that is the position.  Had you gone to trial and been found guilty of these offences following a trial, I would have convicted and sentenced you to six and a half years' imprisonment and I would have fixed a non-parole period of four and a half years.  That statement also is to be entered in the records of the court.

77Just grab a seat for a moment please, and I will see if I have dealt with everything I need to deal with.  Mr McKenry, are there any matters I need to deal with at all or not?

78MR McKENRY:  No, Your Honour, I'm happy with that.  Everything we sought is there and the mathematics works.

79HIS HONOUR:  All right.  Mr Brennan, any matters that I need to deal with at all or not?

80MR BRENNAN:  No, Your Honour, thank you.

81HIS HONOUR:  Now listen, are you going to go down and see your client downstairs and ‑ ‑ ‑

82MR BRENNAN:  I am, yes.

83HIS HONOUR:  Good, all right.  Is there a need for me to make any sort of - I mean he's been in - he's been in custody so it's not as though he's going there for the first time.  It's his first sentence but he's been there since April so do I need to make any sort of custody management sort of issues at all that you can think of or not?

84MR BRENNAN:  If I can just very briefly approach to confirm, thank you.

85HIS HONOUR:  Of course you can, yes, yes.

86MR BRENNAN:  Thank you for that opportunity and no, there's nothing open that I can request at this stage.

87HIS HONOUR:  All right.  Well, that completes the matter then so Mr Morell, I'll have you removed now and Mr Brennan will come down and have a chat to you downstairs in a moment, all right?  You're all right. 

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