Director of Public Prosecutions v Morgan

[2016] VCC 939

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-00824

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW MORGAN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	5 July 2016
DATE OF SENTENCE:	5 July 2016
CASE MAY BE CITED AS:	DPP v Morgan
MEDIUM NEUTRAL CITATION:	[2016] VCC 939

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For the Accused	Mr J. Sullivan

Pages 1 - 14

 

 

HER HONOUR: 

1Andrew John Morgan, you have pleaded guilty before me to two charges of intentionally causing a bushfire, possessing a drug of dependence, which is noted to be for possession only, and the drug being methamphetamine; and you have consented to a summary charge, a charge of driving whilst disqualified being uplifted and heard at this hearing, pursuant to s.145 of the Criminal Procedure Act.

2The maximum penalty for charges of intentionally causing a bushfire is 15 years' imprisonment.  The maximum penalty for possessing a drug of dependence is one year imprisonment or the imposition of 30 penalty units.  The charge of driving whilst disqualified has a maximum term of two years' imprisonment or 40 penalty units.

3The facts underlining your offending are as follows.  In September 2015, you were living and working on a dairy farm in Labertouche Road, Labertouche.  During this time, you had restricted use of your manager's Holden Rodeo, as you had been disqualified from driving a motorcar at the La Trobe Valley court on 29 July 2015 for six months.

4You have had for some time significant mental health issues, and for a number of months had fortnightly injections to treat your condition, which is schizophrenia.  In the days leading up to 29 December 2015 when this offending occurred, your behaviour and mental state was observed to have significantly deteriorated.

5At about 4.30 on 29 December 2015, you drove the Holden Rodeo from the farm where you were working to McDonalds Road in Labertouche, the area around which consists of farming properties, state forests and open paddocks.  You had in your possession a cigarette lighter and a jerry can of fuel.  You had apparently previously lying on the side of the road, and you went there with the intention of burning the rubbish.

6On arrival, you poured fuel onto a couch which had been dumped on the northern verge about three metres off the roadside.  At this point the verge was overgrown, with longish, dry grass, ferns, and medium eucalypt growth.  On the northern side of the verge was a paddock with relatively short grass and a wire fence, and on the southern side was a vegetated verge of about two metres, and south of that was state forest.

7You then lit the couch with your cigarette lighter, and after the fire had taken hold, you drove away and returned to your farm.  The fire spread from the couch into surrounding vegetation, which was seen from a nearby property a few minutes later, and the Longwarry CFA was called and attended and extinguished the fire.  It had burned about 50 metres along the road, across the full width of the verge, which is about ten metres, and slightly into the stock paddock.  These actions underlie Charge 1 on the indictment, intentionally causing a bushfire.

8At about 6 pm on that same day, you rode the car from the farm where you were working to Jacksons Track in Labertouche.  The area is known as the Labertouche Creek Bushland Reserve, and a walking track runs through it from Drayton Road to Fisher Road, being about 1.5 kilometres long and from 100 to 200 metres wide.

9The vegetation in this area is medium eucalyptus growth with a number of taller dead trees and occasion mature gumtrees.  The undergrowth was moderate scrub, mostly bracken ferns with patches of grass and native grasses.  There are a large number of residential properties and farms near the track.

10You then proceeded to collect various items of small rubbish which had been dumped in a car park and put them in a bucket, and at about 6.20 pm you drove to a nearby dairy farm in Fishers Road, Drouin West, where you had previously been casually employed as a milker.  There, you spoke to the owner of the farm, showing him the rubbish you had collected and expressing anger at that rubbish being dumped in the area.  You left soon after and returned to your farm.

11Your actions in driving the car at this occasion underlie the summary offence, driving whilst disqualified.

12At about 8 pm that night, you drove a quad bike from the farm back to the car park off Jacksons Track, where you used your cigarette lighter to set off 11 separate fires along the walking track between the car park and Fisher Road.  You then went back to the farm, where you remained for some time.

13Local residents discovered the fires at about 8.30 and notified emergency services.  It was discovered that in relation to one of the fires, a dumped couch had been almost completely burnt, and the fire had spread a short distance into adjoining bushland.  The remaining ten fires burnt sections of grass, bracken and bushland.  The largest fire burnt about half an acre of bush and grassland, and the smallest fire burnt about a metre in diameter.

14In total, five CFA appliances were required to put out the fires, and the crews remained at the scene until about 11.30.  Your actions in lighting those fires underlie Charge 2 on the indictment, intentionally causing a bushfire.

15On 29 December, the weather conditions in the general Labertouche area were:  There was a temperature maximum in that day of about 26.5 degrees, a relative humidity of 41 per cent, and a southwest wind of about nine kilometres per hour.  In the evening when you lit the second series of fires, weather conditions were a 15 degree weather temperature, a relative humidity of about 60 per cent, and a southeast to east wind of four to seven kilometres per hour.

16In the early hours of Wednesday 30 December, you left the farm in the Holden Rodeo and drove to an address at Drouin, where you left the car, also leaving keys in the ignition, and caught a train to Bairnsdale.  You were arrested in a Bairnsdale service station at about 7.30 that night, and during a police search of your person, in your wallet police found half a gram of methylamphetamine.  You admitted possessing those drugs, and said you had originally purchased 0.7 grams of methamphetamine a few days earlier.  Your actions in buying those drugs underlie Charge 3 on the indictment, possessing a drug of dependence.

17In a record of interview, you admitted to lighting both fires, to dousing rubbish with fuel and igniting it with your cigarette lighter.  You told police you were annoyed that rubbish had been left on the roadside, and believed that you had been acting appropriately by burning the rubbish.

18This matter proceeded fairly swiftly.  You pleaded guilty to the charges at a committal mention hearing on 12 May 2016.  It is conceded that your plea was made at the earliest opportunity.

19You were remanded in custody on 30 December, until you were bailed by the La Trobe Valley Magistrates' Court on February 18 2016.  You were then again remanded in custody on 2 March following a breach in your bail, and have remained in custody since that time.  Significantly, you have spent the whole of your time in custody in a psychiatric unit at the Melbourne Assessment Prison.

20I now turn to your personal circumstances.  You are 27 years of age, one of four children born to your parents.  You were born in Orbost, completed year 11 at school, and then worked on dairy farms, ultimately leasing your own section of land, where you raised a breed of cows, apparently receiving a "scholarship" in dairy farming from the government.

21You appear to have been a law-abiding, perfectly productive person until you were about 25, when you were introduced to methamphetamine, which has had a catastrophic and disastrous effect on your life.

22As a result of use of methamphetamine, you have now developed a serious psychiatric illness, that is schizophrenia, and since 2012 have been regularly in contact with mental health services, presenting to a hospital with delusional thoughts that your parents were impostors, and on regular occasions have been held and treated in a hospital psychiatric ward.  You have previously been treated with injected antipsychotic medication.

23Between 2012 and 2015, you have been hospitalised in a psychiatric ward on five occasions, these being due to a combination of speed and ice use by you, and also when you have ceased using your antipsychotic medications.  There was apparently no mental illness in your family.

24In his report dated 29 April 2015, psychiatrist Dr Leon Turnbull noted that when he saw you, you presented as pleasant, and he saw you at the Melbourne Assessment Prison and reported you had not had a psychotic relapse.

25You had previously been on a 75 mil dose of Resperidone, which is an antipsychotic medication, which, however, had been reduced fairly significantly to 50 milligrams by the local mental health service on your release from prison on a previous occasion.

26It is appropriate at this point in my sentencing remarks to refer to your previous criminal history.  In 2009, you were fined for driving with a blood alcohol concentration exceeding the legal limit, and then in 2012 were fined for driving whilst disqualified.  Again, on 6 August 2012 you were fined for driving over .05 and then again in July 2013 for driving whilst disqualified and other driving offences.

27Most significantly, on 9 September 2015, you were sentenced to a combined sentence comprising gaol and a community corrections order on charges of reckless conduct endangering life, intentionally damaging property, burglary and theft, and being an unlicensed person possessing a firearm.

28I was given a summary of that previous offending.  In some ways, it is quite similar to the offending you engaged in on the occasion that has brought you before this court.

29That offending occurred on 3 April 2015, when you had been using speed and cannabis.  You had an argument with your brother-in-law and went into a series of angry, irrational behaviours, which included trying to cut down a large tree at the front of your sister's house; driving off and refusing to pull over when directed to by police; demanding from your grandfather that he hand over a firearm; as you believed people were walking around the address; and then walking around the farm for a minute with the firearm, before handing it back to your grandfather; and then the next day going to a house in Jarrahmond, demanding to see a man that had refused to give you a torch previous night; ramming a gate on that property, and then setting fire to a hayshed.

30You then went to an address in Orbost, gained entry to a shed using a set of bolt cutters, and cutting a padlock on a gun-safe, removing a .303 rifle and returning to your grandfather's property.  Police then arrived and tried to talk to you, to no avail, and you were seen driving in a utility car in the paddocks in the back, conducting burnouts.

31Police had a conversation with your grandfather and pushed him out of the way in order to get to you, which enraged you, and you drove directly at police through a fence.  You then collided with a police car.  Again, you tried to drive at police, then drove around the property and lit about five or seven fires, and eventually, after a police chase, you were apprehended.

32Now, I have gone into your behaviour on that previous occasion in some detail.  During the plea there was some conversation about the fact that tragically, you have developed a very serious psychiatric illness as a result of using methamphetamine in particular.  It is tragic, because up to that time you had lived a productive, law-abiding life, and since then your life has essentially been chaotic.

33On that occasion, you were gaoled and then released on a community corrections order, and my understanding is that up until December of 2015 you were extremely compliant in relation to that order.  That is, there was no further trouble.  You took your medication as you were supposed to, and you abided by or you obeyed the directions given to you by the Community Corrections.

34All of your good work unravelled and became a complete mess, because you decided to use ice again.  The explanation that you gave is in my view somewhat consistent with the sort of residual muddy thinking that can go with a person who suffers a psychiatric illness like yours.  That is, you developed a painful dental condition which stopped you from sleeping, and you decided to take ice in order to be able to get up on time for work.  And of course, the results were disastrous.

35Whilst Dr Turnbull did not believe that you were psychotic at the time you committed the offending that brought you here before me, he stated the following:  "His drug-affected state and his chronic mental illness did confer limitations on his ability to exercise appropriate judgment at the time".

36I note that you told police that you thought you were doing the right thing by burning the rubbish at the locations that you did in the summary that I have outlined.  Further, it appears you were even more insulted by some of the rubbish on McDonalds Road, because this is your biological mother's surname.

37What that means is, that while you were not frankly psychotic or having delusions or hallucinations when you committed this offending, your thinking was clearly illogical and disordered, essentially as a result of your psychiatric condition deteriorating because you had taken methamphetamines.

38Now, the authorities make it very clear that if a person takes drugs which they know will affect them in a certain way, and then go on to offend as a result of having taken drugs and their behaviour being affected in the way they knew it was, that will ordinarily mean that there is no mitigation; that that sort of excuse will not have much effect on the way in which a judge sentences that particular person.

39Ordinarily, that would apply in your case, but it is my view that the reason for which you took ice in the first place is indicative of the sometimes disordered thinking that can accompany a person who is suffering from a psychiatric illness, even if they are taking their medication.  It was clearly really illogical for you to take ice in order to get up for work because you were worried about not getting enough sleep.

40What is incredibly important, and we have had this discussion during the plea, Mr Morgan, is, you have to understand that ice is an incredibly dangerous drug for you to use; that every time you use this drug, your psychiatric illness is going to take over and lead you to behave in the dangerous offending way that you did in December of 2015, and that you did earlier that year.

41However, it is my view that it is both in your interest and in the interest of the community that your illness is appropriately managed. I am acutely aware that whilst you have been appropriately managed in the gaol, and that your medication, that is the Resperidone, that the dosage has been increased back to 75 mils per fortnight.

42Possibly fortunately for you, the psychiatrists at the Melbourne Assessment Prison have issued an assessment order under the Mental Health Act, so that on you being released from custody, you are to be immediately taken by police to the La Trobe Valley Hospital, where your psychiatric condition is to be assessed, and it is not until that has occurred that you will then be released at large in the community, and I regard this as an important safeguard, because in my view it is obviously of critical importance that you are on an appropriate regime of psychiatric treatment and medication.

43It certainly seemed to me during the hearing that you are aware of the link between use of ice and your psychiatric condition and your offending.  It is also extremely important that you understand that you must keep taking that medication.  Once you go off your medication, your thinking is going to deteriorate, and it is more likely then you will then engage in the sort of thinking that led you to use ice, and then that of course led directly into the offending that has brought you here again.

44I explained to you, Mr Morgan, and it seemed to me you understood this, that the more often this happens, the less able the court is going to be to have regard to your psychiatric illness and the problems that you have with it, because the more important issue is going to be how dangerous are you to the community.  That is, every time you come back to court, the court is going to say, "This man is dangerous, and that is what we have to look at", and the main issue for the court will be protecting the community, rather than attending to your illness.

45What that means is that a court can put you on orders to make sure you are not in gaol for too long; to ensure you have got maximum psychiatric assistance, but you have got to come to the party too, Mr Morgan.  You have got to take your medication, and you have absolutely got to stay off drug use of any kind.

46Methamphetamine appears to be the most damaging for you, but use of cannabis is well-known to affect a person with a psychiatric illness, to the point where that illness can become more significant, as a result even of cannabis use.  And if you do not take care of that as best you can, then the courts are going to have to simply look at what sort of danger you pose to the community.  Is that very clear?

47OFFENDER:  Yes, Miss.

48HER HONOUR:  It is not just a matter, I am saying, of me putting you on a community corrections order and talking about your psychiatric illness and you deciding that you have no responsibilities in this matter except to be looked after.  If you do not take your medication, if you do not ensure that you never use drugs, then nothing any psychiatric service, any order the court puts you on is going to be of any help to you.  And the only way anyone is going to be able to deal with you is by longer and longer terms of imprisonment.  Is that very, very clear?

49OFFENDER:  Yes, Miss.

50HER HONOUR:  In a way, what you need to think about is, "If I use ice, if I smoke cannabis, I am going to end up in gaol".  Not just because you are using them, but because what the use of those drugs will do to your mental state and the way you are likely to behave.

51Now, you have heard me describe how you behaved in April of last year and December of last year.  Does that sound like rational behaviour to you?

52OFFENDER:  No.

53HER HONOUR:  No.  So I hope it is very clear that you are listening to and understanding just how dangerous and irrational you become when you use drugs, and also when and if you stop using your medication.

54However, in all the circumstances I am satisfied that to some extent the principles outlined in Verdin have application in your case.  I am satisfied that to a limited extent, there is a causative link between your psychiatric state and the offending you undertook, and I also accept that service of a term of imprisonment is, because of your psychiatric condition, a more difficult proposition for you than the ordinary prisoner.

55For these reasons, I have decided to deal with you by way of the imposition of a term of imprisonment and release on a community corrections order, the terms of which I will explain to you in a moment.  I therefore sentence you as follows.  Can you stand up, please?

56On all charges, I sentence you to an aggregate term of 176 days of imprisonment, which I direct have already been served by way of pre-sentence detention, and you are then to be released on a community corrections order for a period of 18 months.

57The terms of the order are these.  First are that you must report to the Office of Corrections within two days of being placed on the order.  I have received an assurance from the Community Corrections Officer attached to this court that that report can be made by way of telephone from the hospital to which you will be taken.  Do you understand?

58OFFENDER:  Yes.

59HER HONOUR:  Secondly, while you are on the order you must not commit any offence punishable by imprisonment.  That does not mean you have to commit an offence and be gaoled, it just means you have to commit an offence you could be gaoled for.  So theoretically, possessing ice is an offence for which you could be gaoled.  If you are found in possession of ice, you will have breached the order.  Do you understand?

60OFFENDER:  Yes.

61HER HONOUR:  Thirdly, whilst on the order you must report to and receive visits from the Community Corrections Office.

62Fourthly, whilst you are on the order, you may not leave Victoria without the consent or without the permission of the Community Corrections Office.

63Fifthly, whilst you are on the order, you must not present to the Community Corrections Office under the effect of drugs or alcohol.

64Sixthly, you must obey all lawful directions of the Community Corrections Office.  Do you understand that?

65OFFENDER:  Yes.

66HER HONOUR:  I am also going to order some special conditions.  They are firstly that you are assessed and treated for mental health difficulties, and you are also to undertake programs designed to reduce reoffending.

67And finally, I am going to order that there be judicial monitoring every six months.  That means, every six months you are going to have to come back in front of me, and I am going to get a report from Corrections to just see how you are going, all right?  So it is not just a matter of getting out and doing what you want.  I am going to be very interested in your progress, Mr Morgan.

68OFFENDER:  Yes.

69HER HONOUR:  Because you have heard and you have agreed that your behaviour is irrational when you have been offending, right?  Do you also agree it is dangerous.

70OFFENDER:  Yes, very dangerous.

71HER HONOUR:  Yes, it is very dangerous.  So I need to keep an eye on you.

72OFFENDER:  Yes.

73HER HONOUR:  Thank you, we will prepare the paperwork.  Have a seat, sir.

74I am sorry, I should also include a condition that you need to undertake assessment and treatment for drug use.

75OFFENDER:  Yes.

76HER HONOUR:  All right.  I beg your pardon, I will do supervision.  I am sorry, I think it is an appropriate case for supervision.

77So Mr Morgan, I hope you have taken all that in, because if you have, and if you do the sorts of things I have been outlining to you, we probably will not see you again.

78OFFENDER:  Yeah, I'm still a young man and I can make something of me life.

79HER HONOUR:  That is exactly right.  And you did make something of your life.

80OFFENDER:  Yep.

81HER HONOUR:  Until you started using ice.  And that is what you have got to remember.  Ice has done nothing but ruin your life.  All right?  Thank you.

82Now could I ask you, Madam, as well.  The information that Mr Morgan will be taken to the La Trobe Valley Hospital psychiatric unit be conveyed to Corrections, so they know where he is?

83VOICE (from the body of the court):  I will ensure to inform Corrections, including Bairnsdale, that that's where he is.

84HER HONOUR:  Yes.

85VOICE:  But I would imagine that being how close it is, that he would be making the trip and report most likely to Morwell.

86HER HONOUR:  Yes, I would have thought that is probably right.  Ultimately, it is expected he will be released to an assisted residential facility in Paynesville; is that right?  At Eagle Point.  So there may need to be a transfer.  All right, thank you.  I will get you to sign that, please, Mr Morgan.

87I should note that I have placed him on the community corrections order despite being found unsuitable, because of the fact that previously you breached the order by reoffending.  But I am comforted by the report via your counsel that up until you offended in December of last year, you had complied with the order very well for a significant period of time.  Yes, thank you.

88All right, thank you.  Thank you very much indeed for your assistance particularly, Mr Sullivan.  Now, does that mean because I have done a combination I have to do a s.6AAA declaration?

89MR BOURKE:  I think it does, Your Honour.

90HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years, and ordered that you serve a minimum term of 18 months.  Thank you.

91MR SULLIVAN:  As Your Honour pleases.

92OFFENDER:  Thanks, Miss.

93HER HONOUR:  All right, there is the order.

(At this stage the court proceeded with another matter.)

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