Director of Public Prosecutions v Morgan

[2017] VCC 1792

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

AT MILDURA
CRIMINAL JURISDICTION
KOORI COURT DIVISION

CR 17-01590

DIRECTOR OF PUBLIC PROSECUTIONS

v

YARRUN MORGAN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Mildura
DATE OF HEARING:	28 November 2017
DATE OF SENTENCE:	28 November 2017
CASE MAY BE CITED AS:	DPP v Morgan
MEDIUM NEUTRAL CITATION:	[2017] VCC 1792

REASONS FOR SENTENCE
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Subject:         Criminal law – sentencing – attempted armed robbery, make threat to inflict serious injury – youthful offender – powerful mitigating factors – Community Correction Order of two years duration imposed with special conditions of supervision, treatment and assessment for drugs, mental health and offending behaviour, judicial monitoring.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Taylor	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms G. Connelly	Victorian Aboriginal Legal Service

HER HONOUR:

1Yarrun Morgan, you've pleaded guilty before me to one charge of attempted armed robbery and one charge of make threat to inflict serious injury and in addition, you admitted your criminal record. There has in the past been only one court appearance. On 28 November 2016 you were dealt with at the Mildura Children's Court, where the matter was adjourned without conviction for a period of six months, on condition that you be of good behaviour. You complied with that order and on the same day a matter of fail to answer bail was dismissed under s.76 of the Sentencing Act 1991. 

2I will now proceed to sentence you on the basis of the opening that was read by the prosecutor this morning.

3You were aged 19 at the time of the offending and you are now 20.

4The offending occurred in company with your cousin who is a person who was dealt with in the Children's Koori Court.  My estimate is that he was aged 17 at the time of the offending and his matter has been the subject of a hearing and his sentence has been deferred on the basis that he comply with the conditions of a residential rehabilitation program.

5The offending the subject of the attempted armed robbery involved you attending on the Hong Thu Groceries at 212 Deakin Avenue, Mildura.  It was at about 5.25. You attempted to disguise your identity by placing a white cloth over your face.  Your co-accused also had a cloth over his face.  You went into the store.  Ms Luu was working behind the service desk at the front of the store. You and your co-accused threatened her with a knife and made demands for money.  She responded that she did not work at the store. She proceeded to yell out to another female, Ms Nguyen, to alert her to the unfolding situation. Those facts constitute Charge 1, attempted armed robbery.  Thereafter your co-accused chased Ms Nguyen with the knife in his hand and she fled to the rear of the store and locked herself in the storeroom.  You then exited the store. 

6You were followed by one of the owners of the premises, a Mr Mike Phung.  He chased you down the street and at one stage you stopped and turned and confronted him.  You drew your knife and moved towards him.  In response
Mr Phung swung his belt at you and struck you on the hand. Those facts constitute Charge 2, make threat to inflict serious injury.

7Thereafter you ran away.

8Eventually on 11 May 2017, about six days later, both you and your co-accused voluntarily presented to the Mildura police station where you were arrested. 

9A formal interview was undertaken and during the course of that you made admissions about the attempted armed robbery.  You explained to the police that you did it because you were homeless.  You said you had snapped and that you wanted money and an adrenaline rush.  You did say that you were sorry for what had happened.  You said you could not remember the incident involving Mr Phung.

10Following your arrest you were remanded in custody and you have served
47 days by way of presentence detention in an adult prison.  Your time in custody was particularly onerous.  You were held at the Albion Unit which is a high security unit that does not cater for young prisoners.  You were held in lockdown between the hours of 1 pm to 7 to 8 am each day.  It was the first time you experienced custody in an adult setting and that would have been a shocking experience for you.

11You were released on strict bail conditions on 27 June 2017 so that you could be taken to Baroona Youth Healing Centre (Baroona), which hosts a number of programs aimed at reducing alcohol and drug use among young Victorian Aboriginal men by providing a safe and culturally specific healing environment.  There you completed the “Journey to Heal Spirit” program over a period of 16 weeks.  The program is residential with strict supervision.  A condition of attendance is that you have to be drug free.

12The program is culturally focused with emphasis on strengthening an individual's personal development, education and employment opportunities and healthy lifestyle choices. 

13Your matter proceeded in the County Koori Court division and you were arraigned and pleaded guilty and then a sentencing conversation was held. 

14Present at that conversation were Elders and Respected Persons, Uncle Peter Peterson and Uncle Mark Bland. You were supported by your maternal aunt, Darlene Thomas, Darcy Ronan and Brodie Atkinson from Baroona, and Terry Brennan and Peter Matsimoto from the Mallee District Aboriginal Service (MDAS). Each of those supporters personally attested to how being involved in this offending has been a real catalyst for change for you and your behaviour.

15You were very respectful towards each of the elders and presented as a bright, healthy young man.  You engaged in the process respectfully and openly acknowledged your guilt and you accept that what you did was wrong. 

16You are a young man who has experienced some extreme challenges in life.  You are the eldest of five children.  Your parents have both had longstanding issues associated with heavy drug use.  There has been a great deal of disruption in your life.  You left school at Year 9 and you are not literate. 

17In your formative years, it is evident from the material that was filed with the court, that you were exposed to your parents' substance abuse, domestic violence involving your mother's partners attacking her, instability, transience and multiple placements and as a consequence you had a variety of carers over your formative years with a history of involvement with the Department of Health and Human Services Child Protection.

18Your background is set out comprehensively in the report of Mr Jackson, neuropsychologist, whose report of 20 October 2017 is noted.  I do not propose to go into any further detail.

19I have had regard to the majority decision in Bugmy v The Queen.[1] The effects of your background of significant depravation do not diminish over time or repeated offending and have been given full weight in assessing the appropriate sentence that I am about to impose.

[1](2013) 302 ALR 192.

20Despite your difficult background you have been described as a person who does show leadership capabilities within your community.  You now accept what you did was wrong and that it would have been terrifying for all who were present in the store when you undertook the attempted armed robbery.  You accept the need to refocus your life. You have expressed a desire to seek employment. Your Aunt Darlene detailed a number of efforts that you have already taken to date.  You are currently living with your grandmother but spend a lot of time with Darlene and your younger siblings who are cared for by her.  You do have a desire to live independently.  You want to live a healthy lifestyle and you may take up sport again next year.

21Darcy Ronan spoke of you being connected with your Aboriginal cultural heritage.  He said you played the didgeridoo.  He is a very strong supporter and he travelled with Brodie Atkinson from Echuca today to give evidence on your behalf.  Mr Ronan remarked that he does not give such support lightly and genuinely believes in you and your capabilities. 

22Your Aunt Darlene spoke of how you interact positively with her and also with your three younger siblings, as I said, each of whom are currently in her care.  Darlene said that has been a positive thing out of this offending and also especially following your time at Baroona.  She believes that you have good coping tools and that in her words, "Your decision making now has awed her."  She said that you now are more responsible in your decision making and take responsibility for your own actions and are not as heavily influenced by others, unlike how you were in the past.

23She detailed the fact that you do not have a birth certificate but you are now applying for one and that you are seeking employment through the MDAS Employment Program and railway work next year and perhaps some work in New South Wales involving the laying of pipelines.  You want to learn to drive and you also want to work with the prospect of some harvest work coming up shortly.

24You have excellent community support through your aunt and also the MDAS workers who spoke on your behalf, Terry Brennan and Peter Matsimoto, both of whom have only had a short involvement with you. Terry Brennan has known you a long time and he also is aware of your difficulties associated with your past.  He stated that you are maintaining your abstinence from drugs and that you have got good positive goals and that he is dedicated to supporting you further to ensure that that continues into the future.  He stated that you are very remorseful for your actions and that you realise the impact of the offending now, not only on the victims, but also on your future. He is prepared to support you for however long it takes. He described your maturity that has increased since this offending and your preparedness to accept what you did was wrong and how also you accept that you need to be punished for what you did.

25Mr Matsimoto, is more involved in respect to mental health issues, he said it was at early stages but he is arranging for you to be seen by a psychiatrist who will be making a mental health treatment plan for you. He is also very supportive of you and he says at this stage, even though it is early days, you are responding well.  He has organised for you to attend at the men's group this Friday.  He sees you as a positive role model in the future in respect to other young people.  But he considers that the most important thing is that there be structure and purpose to your life. 

26I accept that you now do have very good support here in Mildura in the community and that ultimately it is in your best interests that those people who are supporting you continue to support you and to send you back to gaol at this stage would only disrupt what has been what I consider to be one of the most remarkable transformations of any young man that I have seen in the last almost 16 years of working life as a judicial officer.  I am not going to interfere with that.

27In sentencing you I have to have regard to the fact that you are a youthful offender and ultimately your rehabilitation is an extremely important sentencing consideration.  I consider that you do have excellent rehabilitation prospects.

28I have had regard to the fact that you have responded well whilst you were on strict bail conditions with strict curfew, residence conditions, reporting conditions, conditions that you not take any alcohol or any drugs and that you accept treatment though MDAS, that is, drug and alcohol treatment and mental health treatment, all of which you have done. 

29I have also had regard to the very positive experience that Baroona has been for you. I accept the evidence that I heard from the MDAS workers and also the workers from Baroona that attest to the fact that you are drug free and also undertaking the rehabilitation programs and that you have made remarkable progress.

30I consider for you this is extraordinary, having regard to the fact from a very young age, that is, the age of 12, with your mother's encouragement, you have been a heavy cannabis user and also there are many generations of your family who have suffered from drug addiction.  So that to be in your position is truly remarkable. 

31I have taken into account all the matters put in mitigation.  Your plea of guilty was at the earliest opportunity.  I consider that to be reflective of genuine remorse. I also consider that you facilitated justice by avoiding the need for a trial with all the expense and inconvenience that carries with it.  You had to endure the onerous conditions of being held in adult custody whilst on remand away from your family supports.  I do consider that you are genuinely remorseful and I have had regard to all the evidence that was given this morning from the various people who contributed to the sentencing conversation. 

32As I said earlier, I have had regard to your significant background difficulties, your drug addiction and lack of appropriate role models whilst growing up and general disruption.  I have regard to your active participation in detoxifying from drugs and maintaining abstinence from drugs, participation in the Baroona program and also the MDAS programs and your commitment to ongoing rehabilitation.

33Finally, I have had regard to the strong support that you get from your Aunt Darlene and your genuine participation in the sentencing conversation this morning.  I consider that your attitude does show a growing maturity and for a young man of your age that augers well for the future.  Yours is an example where you have made an impressive and significant change to your life and I have made a finding that you have excellent prospects for rehabilitation.

34That is all centred on your remaining drug free so you have to keep it up and being healthy and also pursuing your stated goals of employment, getting your licence and getting yourself set up independently in housing. 

35Your ultimate rehabilitation is a very important feature in this sentencing exercise.  It also offers the community the best protection for the future and ensures that your risk of reoffending is reduced.

36The offending is nonetheless still very serious.  Attempted armed robbery carries a maximum of 20 years' imprisonment and that reflects the gravity of that offence.  In respect to make threat to inflict serious injury, the maximum penalty for that is five years' imprisonment.  Both of them are serious charges and what you did was wrong, in company with another younger cousin, armed with a knife and making some attempt to disguise your identity.  The fact is that your actions did instil real fear in the store attendant and his family and that was evidenced in the Victim Impact Statement that was read out to the court this morning.  General and specific deterrence are both relevant considerations. 

37Just as in the case of R v Steely Morgan,[2] this is a difficult sentencing exercise but what does make this case unusual is the extraordinary efforts made by you, a young Aboriginal man who has experienced significant disadvantage over all of his formative years and I consider that the principles, each of the principles of R v Mills[3] have been enlivened and therefore, in the circumstances I shall impose a sentence where I temper justice with mercy.

[2][2010] VSCA 15.

[3][1998] 4 VR 235.

38I am also mindful of what was said by the Court of Appeal in the guideline sentencing judgment of Boulton v The Queen[4] where the court spoke about the negative impacts upon imprisonment and youth.  The court accepted a Community Correction Order is intrinsically punitive and capable of deterring others and providing for specific deterrence and that a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment. I consider that this is such a case and I am satisfied in all the circumstances the order that I am proposing is capable of satisfying all the sentencing principles whilst offering you the best prospects of rehabilitation.  There is real benefit to the community at large as well as to individuals themselves and their immediate families if future criminal activity can be avoided and has been stated by the Court of Appeal in R v Tiburcy,[5] a sentencing court must look to the future as well as to the past. 

[4][2014] VSCA 342.

[5][2007] VSCA 124.

39So all in all, notwithstanding the serious nature of your offending, the combination of very powerful mitigating factors that I have highlighted means that a Community Correction Order will be imposed. I have had regard to the time that you spent in a rehabilitation facility at Baroona and I accept that you must be given credit for the punitive nature of that time spent in the facility and I have weighed that into the sentencing exercise on this occasion.  It certainly is indicative of your rehabilitation prospects which I consider to be excellent but it is also significant because you withstood the punitive nature of that residency and you were genuine in your endeavours whilst you were there.[6]

[6]Akoka v The Queen [2017] VSCA 214.

40I will ask you to stand while I make the orders.  In respect to the two charges you will be convicted and placed on a Community Correction Order for a period of two years with the special conditions that you undergo supervision, treatment and assessment for drugs including testing, mental health programs and other offender behaviour programs and that you will be subject to judicial monitoring, the first of which appointment will be on 28 May 2018 at 10 am and that will be conducted from here at the Mildura County Court via video link.

41I have signed the order in the terms that I have already explained and you have already told me that you understand the effect and conditions of the order and you consent to it.  I will get you to sign that shortly.  And I have also explained to you the consequences of a breach of such an order.

42I make a declaration pursuant to s.6AAA, but for your plea of guilty I would have imposed a term of imprisonment of 12 months to be followed by a Community Correction Order in the same terms and conditions. 

43I make the Disposal Order sought and finally I make the order pursuant to s.464ZF of the Crimes Act. I just have to explain to you what that means.  You will be asked to undergo a forensic procedure and what that involves is a cotton bud given to you to scrape inside your mouth.  Police do that.  If you do not cooperate with them they can use reasonable force to do that but hopefully that will not be required.

44I am satisfied that the making of the order in all the circumstances is justified, having regard to the seriousness of the offences, the order is by consent and the granting of the order is in the public interest. 

45Ms Connelly, I just ask that you accompany my associate now with the order, the Community Correction Order, just to get that signed.  Thanks. 

46All right.  Yarrun can be released from the dock.  All right.  I thank everybody for their attendance today and their contributions to the sentencing conversation.  I appreciate the efforts you made coming all the way from Echuca. 

47UNIDENTIFIED SPEAKER:  I appreciate (indistinct).

48HER HONOUR:  Thank you, thank you.  And thank you, Ms Taylor and
Ms Connelly.  We can adjourn.

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