Director of Public Prosecutions v Morgan
[2018] VCC 846
•6 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-02509
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY MORGAN |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 June 2018 | |
CASE MAY BE CITED AS: | DPP v Morgan | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 846 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Hayward | Office of Public Prosecutions |
| For the Accused | Ms T. Theocharous | Kurnai Legal |
HIS HONOUR:
1 Bradley Morgan, you have pleaded guilty to one charge of burglary, one charge of theft and one charge of aggravated burglary. Those crimes carry maximum penalties of 10 years’ and 25 years' imprisonment respectively.
2 You have pleaded guilty in circumstances where I accept that there is appropriate remorse and you must of course get the utilitarian benefit of that plea of guilty. You having participated in Koori Court and just me hearing you discussing all this with the Elders, I accept that you do have appropriate victim empathy, in other words you know what the damage was that you did to other people.
3 You are 20 years of age, that is a real concern to me. Your only adult prior findings of guilt involve a without conviction disposition. Your other history involves the Children's Court and it is all concerning. The unfortunate aspect of it all is that you have now been on remand for 306 days in adult custody and that makes it impossible for me to effectively give you any disposition other than adult gaol because I have got no doubt that Youth Justice would not accept you in those circumstances. Youth Justice would have been the appropriate disposition in my view back at the time that the offending occurred and that appeared to be the view of the Crown as well. Accordingly I have got to give you adult gaol, trying to take into account that it is not really what I would have wanted to do or what would have been the optimum result.
4 There are also two uplifted summary matters of assault in company and commit an indictable offence whilst on bail. A summary of the offending can be done in very brief compass.
5 On 29 December 2016 you with a Mr Hope who was subsequently dealt with in the Magistrates' Court, attended an address at Parkside Drive in Moe. You broke into the premises and removed gold and silver jewellery together with $1,300 in cash and coins. The house was insured and we had discussion about a compensation order which I have declined to make. It was a very significant burglary in terms of the amounts that were taken. Of real concern within that burglary was the fact that you were able, and your co-accused, to take five firearms including two shotguns and a 303 pump action. Those weapons have not been recovered and that matter has to be obviously viewed seriously. In light of that I would accept that you are probably in a very difficult position in terms of what you can tell people about the consequences of all this. But the fact remains that five firearms are out there probably in the hands of people who might be prepared to use them. You were basically identified on CCTV in regard to that matter.
6 The next is an aggravated burglary at Moe Wreckers in March of 2017. At that stage you and Rodney Havis who is very well known to me and his ex partner went to Moe Wreckers in Moe Walhalla Road. Mr Havers had a taser. Mr Perkins was in there. Mr Havers walked up behind Mr Perkins and tasered him. He looked around and thought Mr Havers was holding a mobile phone. Mr Havers - I make these findings in regard to you, I understand Mr Havers is going to contest this somehow or other - he then tasered Mr Perkins another four times. You were present at the time this occurred and it is clear that you were involved and you made threats to Mr Perkins that if he did not comply he would be assaulted. Whilst this was going on, another person attended the business to get the tail lights of his car fixed and from then on in he remained to protect Mr Perkins who called his father, police were called and they arrived, blocking off Mr Havis' car. And he then drove the vehicle out with you in it and that was the conclusion of it.
7 On 4 August 2017 you were arrested in Collingwood and transported to the Melbourne West Police Complex. You made a no comment record of interview which may well have been a wise choice for you in this situation. You have been in custody in adult detention ever since.
8 It has to be regarded as serious offending albeit for one so young. It calls for the application of general and specific deterrence as well as denunciation and there has to be an appropriate punishment. There was a victim impact statement which has been filed and which was read to you and I know that you understood what was being said and clearly understand now the damage and the anxiety that you have caused to the people from whose house those goods were stolen, who have or continue to suffer I have no doubt, psychological damage from all this. As I have said realistically gaol is the only option.
9 During the course of the sentencing discussion, your history became clear and I do not think I have to go into a great deal of detail. You are a young Koori man, you had a very disadvantaged childhood. You were a witness to at least violence, alcoholism, and a large number of other difficulties. You at a young age have now been in custody for some 306 days. Your father is also well known to me, me having sentenced him on other occasions. It is a dreadful situation but he is in Fulham Prison with you. He is very ill and as I understand from the material yesterday, the prison authorities use you to look after him at times. You have now found that you have a young son whom you wish to get out and look after. You being in gaol with your father has made you very aware that you do not want that to be the situation for your son and I accept that at the present time you are very much motivated to turn your life around. You said that alcohol is simply not a problem for you but it is clear that drug abuse has been.
10 Despite all the difficulties of your childhood and adolescence and I am not going to go into the detail here, you have never had any proper grief counselling and you virtually for what it seems never had any counselling at all to assist you with the problems that you have. During the course of the discussion, Mr Dalton who is now with the gaol addressed me and was able to point out that Fulham gaol where you now are has programs which can assist you in terms of your release. As to discussion between myself and counsel as to whether parole or a community corrections order was the appropriate disposition. as I indicated on a number of occasions in the last few months I am becoming very concerned at the breach rate of community corrections orders for people who have been in custody, it is something like 80 per cent. However in your particular circumstances you wish to go and live in the Preston area with relatives. You wish to get away from the bad influences that you clearly have around you in the Latrobe Valley. The child is living with an uncle and it is clear that there is good support in that situation and if you can remain drug free you are still very young, you are obviously intelligent and you are in pretty good physical health that you should be able to turn your life around.
11 The people who supported you yesterday are here again today at the sentencing including Mr Dalton and I indicate that what I am trying to do is I am giving you a gaol sentence. I think the Crown submission that it has to be longer than what you have done is correct but does not need to be a great dealer longer. You can then be transitioned from the gaol into a community corrections order. As I have also indicated I think it would be very advantageous if you could go to Wulgunggo Ngalu for a period of time and Corrections are well aware of that and it is their intention to endeavour to do that if at all possible. Those matters would all go to your rehabilitation and it is just a pity that these matters had to get so serious before they could be properly attended to. I am well aware of the authority of Bugmy, people with your background do not get over it in five minutes, I totally understand that Bradley. Also the authority of Toumngeun which says that where a situation arises that the circumstances are such that a judge should exercise or feels the need to exercise some degree of mercy then that should be encouraged. Your rehabilitation would be a far more advantageous prospect for the community than the sort of sentence that is sometimes involved in this sort of offending. I also want to make it clear in the course of these sentencing remarks that I am sentencing you as a person who had realistically just turned 20 insofar as parity is concerned with Mr Havis, I may or may not be dealing with him subsequently but I think you are in a very different position to him. I just make those comments so they can be used later if needed.
12 The prospects of your rehabilitation are up to you Brad. The risk of you re-offending if you keep using is high. You do not want to end up institutionalised and in gaol because it is easy and basically if you continue to use and continue to live the life you have been living, your life expectancy is going to be about 50. You know that, your community know that and as Auntie Di said, she is sick of you young fellas costing Aboriginal people down here basically a generation the way it has all been going.
13 But in any event you had the courage to participate in Koori Court. You did it, you showed proper respect and I am impressed by your attitude though I think it really is important that you get that treatment my friend, all right, you have got to do it.
14 Taking all those matters into account, on the charges you are sentenced to an aggregate period of imprisonment of 15 months.
15 I direct that upon your release you enter into a two year Community Corrections Order. You have been assessed and found to be suitable. That corrections order will have the conditions of treatment and rehabilitation for drug and for alcohol, programs for reduce re-offending which as I understand it will incorporate Wulgunggo Ngalu. And also there will be supervision.
16 Insofar as judicial monitoring is concerned, it is a matter which I do wish to continue and I think what I will do at this stage is I will not set a date for that until I am aware, the authorities can tell me this, until I am aware that you have been released and so I can see you a month or two after you are out just see how you are travelling.
17 The other thing which was discussed yesterday and I think it is something that you should give real thought to was that being 20 and having been very good as a youngster at sport, I think if you are going to be living in Melbourne round the Preston area it would be of real benefit to you to go down to Fitzroy Stars and have a kick.
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HIS HONOUR: All right so if you agree to do that, that is what we will do. Is there anything?
MR HAYWARD: Just to confirm that, aggregate imprisonment is - - -
HIS HONOUR: Fifteen.
MR HAYWARD: - - - for all of the offences including the summary?
HIS HONOUR: Yes, 15 months on the lot. Can I do that? No, I will make it 15 months, I see what you are saying, I will make it 15 months on the indictment and I will make it 30 days on each of the summary matters and direct that they be served concurrently.
MR HAYWARD: Yes that is - - -
HIS HONOUR: And there is 306 days of PSD.
MR HAYWARD: Yes Your Honour.
MS THEOCHAROUS: Yes Your Honour.
MR HAYWARD: Disposal sought for a gemmy bar and a (indistinct).
HIS HONOUR: I signed those yesterday I think.
MR HAYWARD: All right I'll put that to one side.
HIS HONOUR: I'm pretty sure I did.
MR HAYWARD: All right, yes 6AAA.
HIS HONOUR: Yes that is the only other thing, I was going to do that in a moment, I just wanted to make sure - this got a bit complicated yesterday, so there is no other orders I have to make?
MS THEOCHAROUS: No Your Honour.
HIS HONOUR: No all right. 6AAA and two and a half with a one and a half. On this basis, I will make it very clear, had I been able to, it would have been a Youth Justice sentence.
MR HAYWARD: Yes, understood.
MS THEOCHAROUS: As Your Honour pleases.
HIS HONOUR: All right Brad, good luck.
MS THEOCHAROUS: He has to sign the CCO.
HIS HONOUR: Sorry you have to sign the CCO first, bring you back again.
MS THEOCHAROUS: Right Your Honour.
HIS HONOUR: All right, you will make sure he does all the stuff that he needs to to transition Andrew?
VOICE (from body of court): Yes.
HIS HONOUR: Yes thanks for that. Yes thanks.
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