Director of Public Prosecutions v Morello
[2013] VCC 370
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02386
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDON MORELLO |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | DPP v. Morello | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 370 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Pattison | (Office of Public Prosecutions) |
| For the Accused | Mr A C Marshall |
HER HONOUR:
1 In April 2012 you, Brendon Morello, separated from your wife, Penelope. You had been together for 15 years, had been married for ten years and you had two children, an 11 year old son and a three year old daughter, together. On separation you went to live with your parents and Penelope and the children moved into a rental property in Bundoora. You had regular contact with Penelope and the children.
2 At about midnight on 31 August 2012, you rang Penelope and asked if you could spend the night at her house with your son, the 11 year old. She refused. You sent her two text messages over the next hour repeating your request. Some hours later, at about one in the morning, by then 1 September, you arrived at Penelope's house. She was in her bedroom with a male friend. The children were asleep in another room. You banged on her bedroom window and yelled "Let me in. If you don’t let me in I'm going to break this window". She told you to go home.
3 The force of your banging broke the window and you reached inside the window and pulled the curtains aside. When you saw that she had a man in the bedroom with her you screamed at her, or them, "I'm going to kill youse. My kids are in the house, you slut". You then forced your way in through the front door of the house, damaging the door in the process. It appears you kicked it in. You confronted Penelope who by then had walked into the hallway. She told her friend to leave and he did.
4 You were bleeding heavily from cuts you had sustained to your arm in breaking the window. You grabbed Penelope by the arms and shoved her into doors and walls and, as the photographs taken of her later show, you inflicted bruises up and down her arms in the process. You again threatened her, saying you would slit her throat and do four years in gaol for it. You said to her that the children were going with you and you went into their bedroom. She went and called 000 and whilst she was on the phone to 000 you asked her to call an ambulance to attend to the cuts on your arm.
5 She gave you a towel at that stage to try and stem some of the bleeding from your arm. Again, the photographs show not only how extensively you had cut your arm but how much blood you had spread in the house.
6 When the police arrived you were still angry and you said, "She knows I'm going to fucking kill her". You were taken to the Austin Hospital and whilst you were there a family violence safety notice was served on you which prohibited you from having contact with her, or going to the house.
7 After you had been served with that notice the police went back to Penelope's house and gave her a copy of it. Shortly after that you rang a woman by the name of Veronica Farid, who was a friend of Penelope's. Although you may not have known it, she was already at Penelope's house as she had gone there to comfort her. You were still at the hospital. You said to Veronica when you rang her, "Let those two know that they have a week to live. I'm going to be out of here by then and I'm going to get them". This threat was also overheard by two nurses in the hospital.
8 You were discharged from the hospital and taken to Heidelberg Police Station at about 8.00 pm that evening and interviewed. When interviewed you admitted going to Penelope's house, smashing the window (you said, because you were angry), kicking the door in to enter the house and assaulting Penelope. You admitted telephoning Veronica Farid but when asked about the threats you said you had no recollection of making threats to her or to Penelope earlier that night.
9 You have now pleaded guilty to one charge of criminal damage relating to the breaking of the window; two of making threat to kill, the first relating to the threats that you made to Penelope directly, the second relating to the threats that you made to Veronica Farid; one of aggravated burglary with intent to assault relating to your kicking in the door and entering the house; and one of common assault arising out of your conduct in grabbing Penelope by the arms and shoving her into the doors and walls.
10 These are serious charges. Aggravated burglary carries a maximum sentence of 25 years' imprisonment. Criminal damage and make threat to kill each carry a maximum sentence of ten years' imprisonment and common assault, a maximum of five years. The charge of making threat to kill is by statute described as a serious violent offence and a conviction for a second serious violent offence requires the making of a declaration in respect of that second charge that you sentenced as a serious violent offender. That means for the fifth charge, the second threat to kill charge, I must make a declaration in respect of that that you are, and are sentenced as, a serious violent offender.
11 You have been before a court on only one previous occasion, in December 1995, on charges of use and possess cannabis. You were convicted and fined. You were before the court on that day, it would appear, for other traffic related offences including drink driving, and I will return to alcohol later. However, save to say that you do not come before the court as a first offender for these charges, those old charges by their nature, and by the distance in time from this offending, have no bearing on the sentences to be imposed on you for this.
12 In her victim impact statement Penelope said that she still working with a psychologist and that she was emotionally upset. Her bruises have healed and she said she was starting to ease back into life without jumping up every time she heard a noise. She had to take time off work and she has had to pay out of her own pocket to repair the window and the door that you destroyed.
13 She made it clear that the relationship between the two of you was poor. She said that the contact that you had had, had led to abusive behaviour such as name calling and threats of a custody battle over the children. She said there had been many discussions that had ended up in tears and arguments and that it was disruptive in every way. She gave examples of the difficulties caused to the children because the two of you had different routines. You did not require them to go to bed at the same time that she did and you did not impose a homework routine on them.
14 She said she still wishes to have no contact or communication with you and that mediation would have to be put in place if you are not imprisoned. By that I understand she means that she does not trust that communication can be resumed without the assistance of an independent intermediary but that mediated communication is necessary in order to achieve agreement for a consistency of approach in relation to the children and contact that needs to be had in respect of the children's welfare.
15 She also said that she feared the children would not cope if you were imprisoned and that it would not be in the best interests of their emotional wellbeing were that to happen. She said for that reason, she did not want you to be imprisoned. I want to make it clear that children and family members are the innocent victims of your offending. They should not ever be made to feel that they are responsible for the punishment you receive as a result of your misconduct.
16 Separation is a difficult enough time for children. They often feel a guilt that they have not kept their parents together and they are often made the unwitting tools of their parent's animosity. It is clear from the material before me that you and Penelope have made some effort, although it has not been entirely successful, to shelter the children from that but there is still a long way to go. It is very clear, however, that your children should not ever be put in a position where they feel they must bear the responsibility for your misbehaviour.
17 Penelope's observations that I have already detailed in her victim impact statement make even more powerful her acknowledgement of the change in you and the significance of that. She also said this, "For the very first time I believe Brendon is getting the help he needs and this makes me happy. He needs to be of sane mind for his kids". It is clear that no matter what has happened between the two of you, she recognises your continuing role as the father of the children and the continuing need for you to be with them and they to be with you. It speaks very well of her having regard to the circumstances that bring you before this court. And it is something that you should continue to bear in mind when you face the inevitable tensions that occur between a separated or divorced couple over continuing parenting of the children.
18 You are 42 years old and you come from a good and stable family background. Your schooling was unremarkable in the sense that there were no problems attached to it, and although you did not consider yourself to be scholar your schooling was good. You left school young and went to work. You appear to have had a stable family relationship with Penelope and the children for many years. Penelope already had a young child when the two of you began your relationship and that child has always been regarded by you and her as part of your family.
19 Since the separation you have gone back to live with your parents. Your father, who wrote a testimonial, and your sister, who gave evidence, described you as a good and devoted father who spends a lot of time with his children. Your family is very supportive and it appears that much of your time, when you are not at work, is spent with your parents, your siblings and their families and your children when they are with you and you share them too with their extended family.
20 You have an excellent work history. You have been in gainful employment ever since you left school. For the last ten years you have worked as a skilled car detailer for the one employer. That in itself speaks of stability and hard work. And testimonials from your current employer and work mates confirm that.
21 From what I have been told you have had a long history of alcohol abuse. You have occasionally and in the past, but for short periods, stopped drinking but by and large your adult history has been one marked by abuse of alcohol. In February 2011 you were diagnosed with cardiomyopathy secondary to alcohol abuse. That is some indicator of the extent to which drinking has affected your life. You are currently under the treatment of a cardiologist for that. That diagnosis appeared to have had no significant effect on your attitude to your drinking or recognition of what it was doing to you.
22 I was told, and I accept on the materials before me, that you were shocked out of your complacency about your alcohol abuse by your conduct on this night. You were then, as you often were, significantly impaired by alcohol and that had clearly contributed to the unreasonableness of the demands you made to see your child, to want to spend the night at the house and then to go to the house and to force your way in and act as you did.
23 After being charged you spent 11 days in custody before being released on bail. I am told, and I accept, that you have not had a drink since you were charged and that you have now frankly acknowledged the role alcohol played in the commission of the offences. Your sister and your father gave evidence that even at celebrations and family functions you have successfully abstained from drinking. You are actively engaged with Alcoholics Anonymous.
24 After you were charged you consulted your general practitioner who referred you to a psychologist under the GP Better Mental Health Program. You first saw the psychologist, Mr Jontof-Hutter, in early October 2012, very shortly after your release from custody and you have seen him regularly since then. In his report Mr Jontof-Hutter said:
"Mr Morello sought psychological help, has stabilised and got on with his life. He has internalised the fact that alcohol for him can lead to serious consequences and that abstention is in his best interests. Accordingly, he has not consumed alcohol since the incident and reported that he does not miss alcohol at all. Indeed, any discussion of alcohol elicits thoughts of avoidance due to its negative connotations for him. Mr Morello would like to continue counselling, stay with his parents until he can afford to buy a new home and get on with his life, including returning to hobbies".
25 He concluded,
"Mr Morello suffered from alcohol related substance abuse disorder. By nature, he is not a violent person and he has a history of enjoying peaceful, friendly relationships. He maintains a good work ethic and is family orientated with traditional values. Mr Morello has abstained from alcohol since the offences were committed, he is calm, wants to get on with his life and enjoy parenting his children. He recognises that his marriage is over and has become resigned to his realities. He has responded well to counselling and his prognosis is good. In this regard, I note that he has made plans and goals for a new life which is a good sign. I also note that he has shown repeated genuine remorse about his behaviour. Provided he continues to abstain from alcohol, his chances of re-offending in this regard are low".
26 You have pleaded guilty to these charges and indicated your intention to do so at a very early stage. Your pleas are entitled to considerable weight. Not only do they carry utilitarian benefit in saving the cost of trial, in my view they are in this case a clear indication of acceptance of responsibility for your behaviour. Penelope and the children have not had to face the prospect of awaiting trial and Penelope having to give evidence, to have to relive the offences in the course of doing so, and to perhaps face the indignity of being challenged about the reality of what had happened. That, in my view, carries considerable weight.
27 You have not sought to make any excuses and the evidence before me indicates that you taken considerable steps, and steps that are not easy, to address the underlying problem behaviour that led to the offending. This is a case where your pleas of guilty, coupled with the evidence of your behaviour from the time of your remand, in my view do evidence genuine remorse. That is, remorse for the victims, not just Penelope and Ms Farid but also the children. Your remorse is clearly not simply sorry for the plight you find yourself in as a result of your own behaviour.
28 Had it not been for the acknowledgement by you of the role alcohol played in the offending, and the acceptance of responsibility by abstaining, by engaging with AA and by seeking psychological help, I would have considered that no sentence other than one of imprisonment with a component immediately served was appropriate in all of the circumstances. Violence against your partner, acting out of jealous rage, damaging her property, forcing entry into her house, threatening and assaulting her, are all very serious offences, are serious misconduct. The conduct is made more serious when, as here, it occurred in the presence of your children.
29 Such conduct whenever occurring must be condemned and denounced. Those who turn on their partners, break into their homes, threaten them and assault them, must understand that they will be punished and punished severely. The sentence must serve not only to deter you but to deter others, or to indicate to others who think such behaviour is acceptable or justifiable, that it is not and when detected will be punished. No civilised community can accept such behaviour. No woman deserve to be treated in that way.
30 In your case this can properly be seen as a single incident, terrible and terrifying in itself, but quickly regretted and not repeated. Of your own volition you have sought treatment and sustained engagement with that treatment. It is clear to me that your motivation, or at least a large part of it, is remorse for what you have done to your partner and concern for your children and acknowledgement that it was your behaviour, your alcohol and your anger and rage that led to it.
31 Having a regard to the matters that I have identified, and in particular your acceptance of responsibility, your ability to sustain your abstention from alcohol and your continued engagement with your psychologist, I accept that your prospects of re-offending are low, that your prospects of returning to alcohol abuse are low, and therefore that your prospects for rehabilitation are good.
32 A person who is motivated to undertake his own treatment and rehabilitation deserves considerable weight to be given to that, in my view. You will now have serious criminal convictions against your name and your reputation will clearly suffer as a result. These are punishments. In my view, the needs of denunciation, general deterrence and punishment do not in the circumstances require you to serve a term of imprisonment. You have already spent 11 days on remand and I accept that that was a shaming and a salutary experience and one from which you have clearly learnt.
33 In my view, no good purpose would be served by requiring you to serve a further term of imprisonment. The interests of your estranged wife and the children, as well as yours, would be better served by allowing you to continue on the rehabilitative path that you have embarked on, at the same time as imposing punishment on you which serves as a punishment for you, a deterrent for you and a deterrent for others. But in my view that punishment is one which can be served in the community.
34 You have been assessed and found suitable for a community corrections order and I propose to release you on one for a period of two years. Your GP's report indicates that you have had a history of low back pain, initially presenting in January 2005, and returning for treatment after you injured yourself at work in October 2009. After the October 2009 presentation you were diagnosed after a CT scan with a minor L4/5 disk bulge without nerve root impingement and a minor broad based disk bulge at L5 S1. This was managed conservatively with physiotherapy and by January 2010 you were fit to return to work on normal duties and you have remained at work since then.
35 Whilst there may be some restrictions on the work that you can do as unpaid community work, your ability to work full time as a car detailer indicates that you should have no problem in fulfilling any unpaid community work component of an order, and it seems to me that that is an important punitive element of the order I impose.
36 I propose therefore to place you on a community corrections order with the following special conditions:
(1) that you perform 100 hours of unpaid community work over that two year period;
(2) that you undergo assessment and treatment including testing for alcohol abuse or dependency as directed;
(3) that you undergo mental health assessment and treatment as directed;
(4) and that you undergo courses and programs aimed at addressing factors relating to your offending as directed; and
(5) And specifically I am directing that you be assessed for suitability for participating in programs dealing with anger management.
37 There are core conditions that apply to all community corrections orders in addition to these special conditions that I propose imposing. And they are that:
(a) you must not commit another offence for which you could be imprisoned during the time the order is in force;
(b) that you must comply with any obligation or requirement prescribed by the regulations and that is in relation to not attending impaired by alcohol for any attendances under your community corrections order;
(c) that you must report to and receive visits from the Secretary or delegate;
(d) that you must report to the Community Corrections Centre within two clear days of the starting of the order;
(d) that you must let corrections know within two clear working days if you change your address or your job;
(e) that you must not leave Victoria without first getting permission to do so from the Secretary or delegate;
(f) and that you must obey all lawful instructions from, and directions of, the Secretary or delegate.
38 I cannot impose this order on you unless you indicate that you understand the effect and conditions of the order and consent to it being made. Do you? Do you understand those conditions that I have explained to you and do you consent to an order being made in those terms?
39 PRISONER: Yes, Your Honour.
40 HER HONOUR: Very well, take a seat again for a moment.
41 I have also been asked to make an order that you pay compensation to Penelope for the damage to her window and her door and I propose to make that order.
42 I have also been made to make an order for the taking of the forensic sample from you and I propose to make that order.
43 Could you now please stand.
44 On the five charges to which you have pleaded guilty, Brendan Morello you are convicted. In respect of all five of them you are sentenced to be placed on a community corrections order. This order will last for two years and commences today, 27 March 2013, and ends on 26 March 2015. You must attend the Greensborough Community Correctional Services at Unit 4 / 18 Sherbourne Road, Greensborough, within two clear working days after the commencement of this order. That means by Tuesday of next week given that we have the Easter break intervening.
45 The mandatory terms that apply to all community corrections orders are these, first you must not commit another offence for which you could be imprisoned during the time the order is in force. Next, you must comply with any obligation or requirement described by regulation 17 of the Sentencing Regulations 2011. Next, you must report to and receive visits from the Secretary or delegate. Next, you must to the community corrections centre within two clear working days. Next, you must let a community corrections officer know within two clear working days if you change your address or job. Next, you must not leave Victoria without first getting permission to do so from the Secretary or delegate, and you must obey all lawful instructions from and directions of the Secretary or delegate.
46 In addition to these mandatory terms, there are the following conditions that apply. You must perform 100 hours of unpaid community work over a period of two years as directed by the regional manager. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager. You must undergo a mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric, in a hospital or residential facility as directed by the regional manager. You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager and offending behaviour programs should include anger management.
47 I am going to ask Mr Marshall to accompany my associate down to the dock and ask you to sign an acknowledgment that you understand the effect and conditions of the order and consent to it being made.
48 (Orders signed and acknowledged.)
49 HER HONOUR: An appointment has been made for you Mr Morello, two o'clock today at the Greensborough Community Corrections Centre and although you do have until Tuesday, I recommend that you keep that appointment and start your engagement with community corrections and service of your community corrections order with them as of today.
50 PRISONER: Yes, Your Honour.
51 HER HONOUR: I have signed the order for compensation in the amount of $774.78 in favour of Penelope Morello. So far as the order for the retention or for the taking of the forensic sample is concerned Mr Morello, you must report to the officer in charge of a police station, a 24 hour police station in order to provide that forensic sample. I think probably the closest 24 hour police station for you is going to be Greensborough. Do you know whether that is correct? Have you been reporting on bail there?
52 PRISONER: That would be right, Your Honour.
53 HER HONOUR: Have you been reporting to Greensborough police station? Which police station have you been reporting to for your bail?
54 PRISONER: No, no reporting.
55 HER HONOUR: You have not been on reporting? All right, Greensborough I think is the closest 24 hour police station to you and I will direct that be the place where you attend.
56 There is a complicated time frame for the attendance at the Greensborough police station for the provision of the forensic sample. First of all, I am going to order that that forensic sample be by way of a scraping from the mouth or a buccal sample. A forensic sample can be taken in one of two ways, either the buccal sample the mouth scraping or the taking of a sample of blood. I am ordering the less invasive means, the scraping from the mouth but I must warn you that if you do not consent to the taking of that buccal sample under the supervision of an authorised member of the police force, then it is likely that the police will use the more invasive method of obtaining that sample namely by having of blood taken. If you do not cooperate they are authorised to do that, do you understand that?
57 PRISONER: Yes, Your Honour, I'll cooperate.
58 HER HONOUR: You must wait 28 days from today and then report to the police station within a period of four weeks after that for the provision of the sample. Mr Marshall will explain that to you and the reason for that is simply to allow the time for appeal to expire before you must comply with the order.
59 PRISONER: Yes, Your Honour.
60 HER HONOUR: I must also warn you Mr Morello that if you do not comply with your community corrections order, that is if you fail to comply with any of the conditions of the order or if you commit any offence punishable by imprisonment, then you are likely to be the subject of breach proceedings, that means you will be brought back to this court and most likely before me and you will then be liable to be dealt with not only for the breach but to be re-sentenced for these offences. If that were the case, that means all sentencing options will be open again. Do you understand that?
61 PRISONER: Yes, Your Honour.
62 HER HONOUR: If you blow your chances in respect of the community corrections order, then that will clearly limit the sentencing options. The matters that I have taken into account today in your favour would be shown to have been not able to be sustained by you, which would mean that imprisonment is a more likely option. Do you understand that?
63 PRISONER: Yes, Your Honour
64 HER HONOUR: All right, I have no signed all of the orders. I am going to stand down briefly. A copy of the community corrections order will be made and provided to you and a copy of the forensic sample order will be provided to you. Once they have been provided to you, you will be free to go.
65 PRISONER: Thank you, Your Honour.
66 HER HONOUR: But you must wait until they have been provided.
67 PRISONER: Thank you, Your Honour.
68 MS PATTINSON: Your Honour, there is the one outstanding matter of the declaration as a serious (indistinct) - - -
69 HER HONOUR: Sorry yes. I declare that in respect of Charge 5, you are sentenced as a serious violent offender.
70 PRISONER: Yes, Your Honour.
71 HER HONOUR: Yes thank you. No 6AAA declaration because it is a community corrections order but I have made it pretty clear what I would have done had it not been for the pleas of guilty and the rehabilitative material that was put before me.
72 All right I will stand down, I hope very much not to see you again Mr Morello.
73 PRISONER: Yes, Your Honour.
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