Director of Public Prosecutions v Morgan
[2017] VCC 877
•28 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00639
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARVAN MORGAN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2017 | |
DATE OF SENTENCE: | 28 June 2017 | |
CASE MAY BE CITED AS: | DPP v Morgan | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 877 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentence – Armed robbery and common assault – Koori Court Division – Powerful mitigating factors – Application of principles in R v Morgan [2010] VSCA 15 – Immediate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Manning | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms O Trumble | James Dowsley and Associates |
HER HONOUR:
1 Marvan Morgan, you have pleaded guilty before me to one charge of armed robbery and one charge of common assault, and you have admitted your criminal record.
2 I will now proceed to sentence you on the basis of the summary of the prosecution opening. There was no issue taken with that opening at the time it was read at the plea hearing and it is marked as an exhibit.
3 The offending happened on 1 September 2016, and it involved you robbing Joseph Harb, a man aged eighty-six, of two gold rings and a gold crucifix necklace. At the time you were armed with an offensive weapon, namely a kitchen knife, and in addition, you assaulted Mr Harb by punching him in the face near his left eye, which caused pain.
4 You were forty-three at the time, and had no fixed address. You were living rough in St Kilda, staying at times at the Gatwick Hotel. You are now aged forty-four.
The context to the offending
5 You were an acquaintance of Stacey Morton, a twenty-six-year-old street sex worker. You had met her on the night of the offending. Neither of you had previously known, Mr Harb, the victim.
6 Ms Morton had been engaged by Mr Harb and he had driven her to a friend's house that he was house sitting in Brighton Road, Elwood. Whilst at the house Ms Morton had a dispute with Mr Harb about the price to be agreed for her services that escalated into an argument. She then telephoned you and asked for your assistance. When she hung up from you, she told the victim that her boyfriend was coming. Initially the victim told her to forget about the money and to leave, however, after further discussion they resolved their issues and she performed her services. The victim then went into the bathroom, and at that time you then arrived at the house.
7 You were let in the front door by Ms Morton. Mr Harb became scared when he saw you. You began swearing at him, stating that he had cost you some money. You asked him “How much you got?”, and took the victim into another room, and told him to sit down and not move. You then went through the house, searching the house, opening drawers in different rooms. Eventually you returned to the room where the victim was present, holding a large kitchen knife, you said to the victim “Where is the jewellery?” He said he did not know, as it was not his house.
8 At that point you observed the victim was wearing gold rings on his fingers and a gold crucifix around his neck, and you told him to remove his jewellery. The victim pleaded with you, stating that they were gifts from his parents. You then took hold of the victim’s hands and pulled one gold ring off each hand, causing some pain. At the time Ms Morton removed the crucifix from around the victim’s neck and that constitutes Charge 1, armed robbery. She also removed a silver Hugo Boss watch from his wrist.
9 You then demanded the victim give you his wallet, which he provided. You looked at his driver’s licence and read his name out loud. Without warning, you punched the victim to the face near his left eye, causing him immediate pain. That is Charge 2, the common assault.
10 You then asked Mr Harb to open the door and he did so. As you were leaving, you told him that you would put the rings in the letterbox in a couple of days. The victim asked Ms Morton for his watch back, and she agreed to that request. He also asked for the gold crucifix necklace, but that was ignored.
11 When you left the house you took the knife with you.
12 Mr Morgan, the impact of your offending has been great. As a result Mr Harb suffered a bruised and swollen left eye. He has provided to the court a victim impact statement where he confirms that the experience for him was totally strange and hurtful. In addition to the physical effects, he also suffered a lot of embarrassment because of the bruising and swelling to his eye. Notwithstanding that time has passed, the experience still impacts upon him day to day. He suffers sleep disruption, nightmares, and is fearful at night. He has become socially withdrawn, and avoids many of the outings that he would otherwise have enjoyed. He continues to ruminate about the offending, and worries that you may come and get him again. He is really scared if he hears unfamiliar noises in or around his house. He also suffers flashbacks. The offending impacted upon him greatly. In addition, the jewellery that was taken had immense sentimental value, the loss of which has caused him further hurt.
13 Impressively, Mr Harb states in his victim impact statement, that he extends his wish to you that you find a better way to live so that you can be a benefit to yourself and to the rest of your community.
14 Mr Morgan, the offending is serious, that is reflected in the maximum penalty prescribed by law, 25 years’ imprisonment for armed robbery and 5 years’ imprisonment for common assault.
15 I have had regard to your prior criminal history, which you have admitted. It is extensive, comprising some fifty-three matters across thirteen court appearances. In the past a lot of leniency has been extended to you. You have had a variety of dispositions including, Community-Based Order, fines, wholly-suspended sentences, and Community Correction Orders. An aggravating feature of your offending is that it occurred during the currency of a Community Correction Order that was imposed at Shepparton Magistrates’ Court on 21 December 2015.
16 I accept that your past offending largely reflects the issues that you have struggled with over the years, in respect to drug and alcohol. There are entries for breaching various orders. Of note, you have never taken up the opportunity for treatment in the community, with respect to drug and alcohol treatment notwithstanding that it has been ordered as part of the non-custodial dispositions that have been imposed.
17 You have some prior convictions for unlawful assault and also assault with a weapon. The current offending represents a far more serious example of violence against a person.
18 I consider it to be a serious example of this sort of serious offence and in sentencing you, the court must emphasise both general and specific deterrence and the protection of the community.
19 I understand you have a number of outstanding matters that are still to be dealt with in the Magistrates’ Court on 7 August 2017.
20 I have had regard to your background, history and personal circumstances. You are an indigenous man, your people are the Yorta Yorta. Your mother, who is in her sixties, lives at Rumbalara Aged Care. She is frail and in ill health. You have never known your father.
21 I have given weight to the fact that you come from a difficult and deprived background. You were born in Carlton and in your early years you were raised in the Newcastle area. You have two younger half-siblings, a brother and a sister, who were adopted to different families.
22 Because of the particular difficulties that your mother had with drug abuse, you were removed from her care and placed in foster care. At age 9 years you were adopted by a white family. You recall being placed in thirty-four different placements prior to being adopted. You did enjoy a good relationship with your adoptive family, where you enjoyed stability and security.
23 At age fifteen you were removed from your adoptive family and placed with a relative in Melbourne and it was at this time you became aware of your extended indigenous family. You eventually reconnected with your brother and sister after sixteen years. You then lived in Shepparton where you attended and completed VCE at North Shepparton Secondary College. You achieved well at high school, obtaining a score sufficient to enter university. However, you elected to seek employment instead of pursuing your education.
24 Your employment history is a remarkable one, you have been very productive. You worked as a youth worker at the Fitzroy Stars Aboriginal Youth Club and a literacy officer, undertaking adult Koori programs, Goulburn North-East area.
25 As well, you have worked for ten years in security at pubs, nightclubs and gaming venues, and at times you have been self-employed doing car-detailing for two years and concreting for ten years. You had a long-term position as concrete construction manager for the Rumbalara Aged Care facility, Shepparton.
26 You have five children. Sadly, you do not see or have a relationship with your older children but you do enjoy a strong relationship with your twin daughters, Taylor and Madison, both aged twenty-two. They have a good relationship with you, they visit you regularly in gaol and they both are working full-time in the community. You have another daughter, Shakira, who is younger and she is currently living in Queensland in the care of the Department of Human Services. She maintains a relationship with your twin daughters and you are working towards re-establishing a relationship with her.
27 The context to your offending was that in the three years leading up to the incident, the subject of these charges, you were unemployed, living an itinerant lifestyle, and transient. At times you stayed at the Gatwick Hotel. You were heavily involved in using the drug methylamphetamine, using up to 1.5 grams per day. Your drug use began late in life. You started using cannabis between the ages of twenty-five and thirty, amphetamines about five years ago, and then you progressed to methylamphetamine.
28 You were taken into custody following your arrest, and you have been on remand since 16 October 2016.
29 Whilst you have been in custody you have remained abstinent. You have undertaken programs to address your drug issues through Caraniche and you are hoping in the future to continue to maintain your abstinence.
30 You did a six hour alcohol and drug course and 24-hour drug and alcohol program; a release related harm reduction program and six-week "Change On The Inside" program whilst in custody.
31 You have also commenced artistic colour therapy in custody. You are very successful, having produced over fifty paintings, some of which have appeared in art collections. One painting been donated to the Jane McGrath Foundation. In gaol you have been focusing on maintaining better health and fitness and also working towards relapse prevention.
32 You have recently been diagnosed with diabetes but you are not on any prescribed medication.
33 Currently you are housed at Karreenga Correctional Facility, which is a remand facility, restricted minimum security, located within Marngoneet Prison in Lara. There is a large bakery on site, and you are employed in the bakery. You are also a member of the Karreenga rock bang, playing the drums.
34 Dr Aaron Cunningham, forensic psychologist, interviewed you and provided a report to the court, dated 16 June 2017. He confirms that you present with persistent depressive disorder. He says you were predisposed to the development of this disorder by lack of emotional connection in your childhood relating to being removed from your mother’s care at an early age.
35 He highlights that you have made significant progress in gaol, and you are addressing your lack of internal connection through indigenous art. You now express insight into the reasons for associating with drug-abusing peers in St Kilda and you appear motivated to abstain from those peer associations and you want prioritise your support for your children and grandson.
36 You wrote a letter to the court in which you acknowledge the harm and upset that you caused to Mr Harb as a consequence of your actions. You express your satisfaction with being provided with work in the bakery, providing you with routine, income and job satisfaction. You understand the need for abstinence, and have welcomed knowledge about the neurological effects of drug-use. You enjoy participating in indigenous artwork and you state that you have begun to find yourself culturally and spiritually and you have been more reflective about your past behaviour.
37 You speak about the extensive family support that you are provided by your twin daughters. For the future, you want to be a better role model as father and grandfather. You acknowledge that by this offending that you made extremely poor decisions and that you were very selfish in the past. You are ashamed of what you have become. You express your desire to apologise directly to the victim for any trauma or grief he may have suffered, and you sincerely regret what you did to him on that occasion.
38 You state that you will continue to be optimistic about your future as a father, employee, and law-abiding citizen. You acknowledge that complete abstinence will be your saviour, and that being in gaol has given you the skills and opportunity to put into practice all that you now acknowledge.
39 Ms Trumble, on your behalf, acknowledged that you had entered pleas of guilty to serious charges. She accepted that punishment and denunciation are relevant sentencing considerations. She confirmed, having regard to the objective seriousness of your offending that nothing short of a gaol term was warranted and appropriate and the prosecutor agreed with her submissions.
40 Mr Morgan, there are many aggravating features to your offending. This armed robbery utilising a knife occurred in the sanctity of the house where the victim, a vulnerable elderly man, was then residing. It involved actual violence, represented by Charge 2, that was gratuitous. He presented no threat to you and the impact of your offending has been made clear from what he has written in his Victim Impact Statement.
41 General deterrence and specific deterrence are both significant sentencing factors. The fact that you were on a Community Correction Order at the time, which you breached, is a further aggravating feature.
42 On behalf of the community I must formerly denounce your behaviour and also impose just punishment.
43 I have had regard to all the mitigating features.
44 I accept the early plea of guilty, entered at the earliest opportunity. It demonstrates your willingness to facilitate the course of justice and to accept responsibility for your actions. Further, there is real utility in your plea, in particular, you have spared the elderly victim, Mr Harb, from further trauma by having to come to court to give evidence at the trial and your sentence will be discounted accordingly.
45 I am satisfied that the plea is indicative of genuine remorse and that is further evidenced by your expressed apology in the letter that you wrote to the court.
46 An important aspect of your case was that you consented to having the charges heard in the Koori Court division. In doing so, you agreed to participate in a process that involves you appearing before an Elder and Respected Person from your community and participated in the sentencing conversation.
47 The Court of Appeal in Victoria has recognised that the sentencing conversation in the Koori Court is designed to further the reformation of an Aboriginal offender[1] and also your active participation is a factor that mitigates punishment.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
48 Aunty Pam Pedersen, a Respected Elder, was present during the conversation and you were very respectful to her.
49 Participation in the sentencing conversation is not easy and it was obvious to me from that way in which you conducted yourself, was such, that you are truly sorry for what you have done.
50 You presented as an intelligent and articulate man in his middle years. You openly acknowledged your guilt and shame at being involved with this offending and you spoke openly about your reflections and your ambitions for the future.
51 There are many positive signs for your future rehabilitation. You have the significant support of your twin daughters. You have been informed by Aboriginal Housing that you can gain conditional accommodation within a fortnight of your release from gaol and ultimately, you wish to return to Shepparton, where you have real family connections and you have expressed a desire to play a more meaningful role in your community.
52 Aunty Pam was very firm in her comments directed to you, and condemned your behaviour. She told you that this was not behaviour expected of an indigenous man who belongs in the Yorta Yorta community. She acknowledged your great potential and encouraged you to refocus and apply yourself to achieve this potential. She emphasised that you do need to disconnect from your drug-related peers in St Kilda, if you are to have a future that is crime-free.
53 Overall, having regard to your conduct since you have been in custody on remand, and having regard to the courses that you have completed, and your expressed attitude and responses generally, I consider that you have made remarkable progress and that you do have good prospects of rehabilitation.
54 It is significant that you have been totally abstinent from drugs since your remand, and that you no longer use methylamphetamines. Having regard to your escalating use over the years, and level of use at the time you were arrested, that is remarkable. You have responded well to the drug programs in prison, and it is important for the future that you do have further support in this area upon your eventual release.
55 I do propose to impose a term of imprisonment to be served and I shall allow for some cumulation between the charges to reflect the separate offending.
56 The non-parole period that I have fixed is shorter than it would otherwise have been, because of your very real efforts towards and/or prospects of rehabilitation.
57 I have noted in the past that you did not avail yourself of the opportunities that were afforded to you by the correctional authorities and that is reflected in your history of breaching orders, as set out in the criminal history and ordinarily that would have been a factor to operate, to reduce your prospects of rehabilitation.
58 However, you yourself have demonstrated through your behaviour whilst on remand, that you can address your underlying offending behaviours and that you are motivated to act in a more pro‑social way to take advantage of opportunities to be provided by the authorities.
59 The material that has been relied upon in the plea will be made available to the parole authorities to enable them to give proper consideration as to what supports you need upon your eventual release.
60 I will get you to stand now, please, Mr Morgan and I will announce the formal court orders.
61 In respect to the charge of armed robbery, you will be convicted and sentenced to three years’ imprisonment.
62 In respect to the charge of common assault, you will be convicted and sentenced to twelve months’ imprisonment.
63 I order that six months of the sentence imposed on Charge 2 is cumulative upon the sentence imposed on Charge 1. That makes a total effective sentence of three years' and six months' imprisonment. I order that you serve a non-parole period of two years’ imprisonment.
64 I make the following declaration pursuant to s6AAA. But for your plea of guilty I would have imposed four years' and nine months' imprisonment, to serve three years and six months.
65 I declare that you have already undertaken 255 days pre-sentence detention and direct that that be entered into the records of the Court.
66 I make the Compensation Order and the Disposal Order sought. I note both orders are by consent
67 That completes the sentence, all right. Yes, that is obviously your grandson, is it?
68 PRISONER: Yes.
69 HER HONOUR: All right, did you just want to say something to your daughter before you go down stairs. I will sit here while you have a little chat and then you can go downstairs. All right then, so, thank you for that. Well, I just ask that you take Mr Morgan downstairs and we can adjourn.
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