Director of Public Prosecutions v Morgan

[2014] VCC 231

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-11-01746

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLENDA MORGAN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	4 March 2014
CASE MAY BE CITED AS:	DPP v MORGAN
MEDIUM NEUTRAL CITATION:	[2014] VCC 231

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Fitzgerald
For the Accused	Mr I. Slater

HIS HONOUR: 

1Glenda Morgan, you have pleaded guilty to two indictments.  The first alleged that in February 2011 you intentionally caused injury to one Spencer, you recklessly caused serious injury to one Negara, and you fought and made an affray at Shepparton. 

2The second alleged that in October of 2013 you committed theft, aggravated burglary, armed robbery, and that you possessed cannabis.  There have been four other summary offences which have been uplifted to this court and I will sentence you on those matters to which you have pleaded guilty, being two charges of resisting arrest, one charge of failing to answer bail and one charge of making a false report to police.

3Prosecution summaries of these offences were tendered in both cases and they will be retained on the court file for future reference and will be appended to this sentence.  I will briefly summarise the events consisting of the offences.

4In February 2011 Negara and Spencer had gone to the Woolworths store, and while Negara remained in his car, Spencer went inside the supermarket.  She had been friendly with you but you had had a falling out.  Negara was your ex-partner of about three years but the relationship had broken down in 2010.

5Spencer was in an aisle of the supermarket when you ran at her with a bottle which you broke over her right eye.  The hit caused a cut and bleeding.  When Spencer got up, she moved towards you and you hit her again with the bottle on the bridge of her nose.  She grabbed you and pinned your arms so that you could not hit her again.  Despite that, you continued hitting her on the back of her head.  Once you agreed to stop hitting her, she let you go.  She went inside, got a handle from a trolley and was ready to retaliate when staff members intervened and she left with Negara.  As a result, she received three stitches above her right eye, bruising to her eyes, a sore neck and head.

6The next day you started calling Negara.  Your niece's boyfriend, one Croxford, also called him by phone . During these call threats were made to Negara and to his dogs.  Some 58 calls were made over a four-hour period.  Negara and Spencer went and reported this to the police, and as they were returning home from the police station, you, your son, Tyson Wallace, your niece Kyra and her boyfriend Croxford, drove past yelling abuse at Negara.

7Croxford had a stockwhip which he was cracking.  All occupants, including you, ran towards Negara and Spencer.  Your son was armed with a steel bar, Kyra was unarmed, but you had half a hedge trimmer which is shown in a photograph of the scene and which had a large blade.  Negara himself was armed with a wooden table leg which he had taken from the house.  When Wallace came at him and missed Negara, Negara struck him to the head and they scuffled to the ground.  Negara was struck with the whip on the face by Croxford and you helped Wallace and Croxford struggle Negara to the ground.  By this time he had lots of blood on his face, as shown by the photo tendered.  You told him that you loved him and that you were going to kill him.  He was being hit by Kyra with the timber leg she had picked up, and at some point you stabbed him to the stomach just below his ribs while holding the weapon with both hands.  You then all left.

8Negara had a stab wound to the left side of his stomach, multiple lacerations to the head and face, wounds to the head and hands.  He had a subdural hematoma to the left pneumothorax and was admitted to intensive care for observations.  He had a cut above his right eye, five stitches above his left eye, bruising to both legs, groin, grazes to his arms, and bruises consistent with being hit at least 20 times.

9On March 11 2011, when police interviewed you, you made no comments to their questions but briefly mentioned self-defence.

10As to the second indictment, some time between 29 and 30 October 2013 you broke into a car in Shepparton and stole a USB memory stick.  You left behind a bag containing prescription medication in your own name and other personal items.  At 6.15 am on the 30th, with a co-accused Weston, you entered a unit in Mooroopna where the residents were asleep.  Your rummaging through the house woke the occupants.  One of these persons, to whom I will refer as "G" for the purposes of anonymity and privacy, came to the lounge room and challenged you.  You ran at her.  You had a vacuum cleaner tube, which was shown in a relevant photograph, which you had covered with a white cloth.  You pointed it at her. She was known to you.  You said, "Get back in there or I'll blow your fucking head off".  You were holding the tube so as to portray a firearm.  You said, "Do as you're told or I'll fucking kill you".

11You asked "G" where all the money and drugs were. You were told there was nothing.  You confronted "G's" son, to whom I shall refer as "T", just outside the house.  You told him to "sit down and shut up" or he would be shot.  You took his mobile phone.  "G" was endeavouring to get her seven-year old daughter who was in the house, but you prevented her at first.  You then forced all three of them, including the child, into a bedroom.  You threatened to shoot them if they moved.  After some ten minutes, you forced them into a toilet and forced them to lock the door.  They were in fear of being killed, which fear was reinforced when they heard you say, "I'm gonna have to do them all, she saw my face".

12A short time later you left the house.  You went into a nearby unit, and as you were leaving this address, police who had attended at "G's" house saw you exit that unit.  When they approached you, you told them you were your twin sister Leanne, who at the time was living in the Northern Territory, and that was the basis for the false reporting.  You did not go quietly and that was the basis for the resisting arrest.  Items which you had taken were located on you.  You still had the stolen USB stick, as well as a small quantity of cannabis seeds. 

13The offences of intentionally cause injury and recklessly cause injury are serious offences and the circumstances of the offending, as well as the affray, that is fighting in a public place, were connected to a personal dispute which arose out of animosity and other personal feelings, which should never provide a motive for violence, vengeance, physical aggression and the infliction of injury.

14The serious injury inflicted recklessly by you on Negara could have been catastrophic and life threatening.  The unexpected attack by a bottle upon Spencer in a supermarket is a shocking event and the display of violence and fighting in a public place is abhorrent to the community and must be denounced by the court.  The resolution of personal grievances and anger in a civilised society cannot involve violence and the sentence must indicate to all who are likeminded to resolve personal issues with violence that such conduct will be met by stern punishment.

15Similarly and even more seriously, aggravated burglary, which carries a maximum of 25 years' imprisonment, and armed robbery are very serious charges.  In the context of what appears to have been a targeted expedition to rob and threaten someone who you perceived to be connected with drugs but which turns out to be a mistake, such behaviour is highly reprehensible, and in my view given the fear which would have been engendered in the occupants, these are relatively serious examples of these offences, somewhat at the lower sector of the middle range of offending which carries such a high maximum.  I was also asked to deal with four summary charges, and I will deal with them in my sentence. 

16I received a victim impact statement from "T", the boy at the house where you terrorised the occupants.  The offences have had a significant impact upon him.  "G" and her daughter, "T's" sister, moved away from Shepparton because of fear and because of this incident.  "T", however, remained behind so as a consequence of your behaviour he lost the comfort and presence of his family.  He feels sad and has nightmares and has trouble sleeping and feels hyper-vigilant, even in his own home. 

17"G" also wrote a victim impact statement.  She had to relocate to gain family support for her distress and this has caused significant displacement and cost.  Night time has been difficult with feelings of terror and constant apprehension.  The traumatic impact on the young child can only be reasonably inferred as profound and terror which is long lasting.  The impact of your behaviour is probably long standing and it can hardly be otherwise.  A home invasion breaches the most fundamental rights to be free from interference in one's own house and attacks the most fundamental rights of people to enjoy security and safety in that place.  Such invasion is absolutely intolerable.  I take these statements by the victims into account.

18Although I have not received victim impact statements from either Spencer or Negara, I can draw reasonable inferences about the impact of their trauma and the long-term impact on the injuries, particularly to Negara.

19I must, of course, take a number of other matters into account.  Firstly, your plea of guilty has had a practical value having avoided trial.  Although it was offered in relation to the trial at the very last moment practically, I consider that it should ameliorate your sentence for this utilitarian benefit.  On the plea indictment your sentence will also be discounted, more substantially because the plea came in effect at the earliest opportunity.

20In relation to the pleas, I accept that they are made as an acceptance of responsibility for your actions, to facilitate the course of justice, and are accompanied by remorse, particularly in relation to the 2013 offences.

21I accept that you have had an opportunity to reflect on your behaviour and its impact on the occupants of the house and accept your regret is an expression of remorse for your behaviour. In this context I have read a long handwritten letter which you wrote to me in which you express your distress and dismay at your behaviour.  I will return briefly to that later.

22I take your background into account.  You are 39 years of age.  When you were still in primary school your parents separated and your father gained custody of you and your twin sister.  What followed can only be described as horrific years of abuse and the most important and formative years of your childhood were lost.  Your father betrayed the most fundamental of a father's duty and sexually abused you over a number of years.  You twice fell pregnant to him, with one miscarriage in the first place and an infant death in the second.  You have a number of half-siblings from your mother and stepfather's families and you have a 20-year old son.  You recently had a miscarriage to your current partner.

23You were raised in the Shepparton area with your mother's side being of Aboriginal descent, but your grandmother had to intervene as your mother, who was very young, had difficulties and your father was in gaol a number of times.  You were also sexually abused by a cousin.  At the hands of your father you were drugged and sexually abused by your father's mates.  He was providing them with sexual favours by using you.  Your father at one point involved you in an assault with a weapon on another person by making you hold a knife.  He was gaoled for that offending behavior, but when he was released he continued to rape you.  He was eventually given a gaol sentence for the abuse but I was told that he has served that time and is in the community.

24From this disadvantaged and tragically traumatic background it is not surprising that your life has evolved into a litany of drug addiction, criminality, and has had an impact on your mental health.  Your prior criminal history is substantial and spans offences starting in 1992 at the age of 18, loitering for prostitution, and proceeds with many appearances for drug-related offences, dishonesty offences, some violence offences, some offences involving weapons, and relevantly, an aggravated burglary and armed robbery in 1992.  You have no memory of these priors or their circumstances and they are now over 20 years old, although they are relevant.  The violence offences are also relatively old, but there is a continuity in drug and dishonesty offences.

25In the context of your previous offending, the 2011 and then the 2013 offences before me in particular demonstrate a significant escalation in seriousness, in violence, and therefore a decline in your life generally which can be traced to drug use and the ongoing effects of your background.  Therefore, even though clearly your prior history is relevant, particularly to an examination of your prospects of rehabilitation and reclamation, they are indicative of a more recent descent into an even more difficult life than what you experienced, which is a reality that is difficult to imagine.

26You used cannabis from age 12 until 2012; you used alcohol from aged 13, by the age of 17 you describe large daily use.  You have a history of heroin dependence and have been on methadone.  You have used amphetamines regularly from a young age, but that use allegedly ceased around the year 2000.  You started very heavy morphine use at aged 25 and you have been a regular user.  In the past, as attested to by reports of Primary Care Connect of December 2011 and July 2012, you have endeavoured to engage in some drug treatment.  At this time you were also using Oxycontin.

27The reports describe the attempts made by these agencies to assist you, and you did for a short time attend a number of counselling appointments, and in early 2012 in the first quarter with a GP.  In late 2011 you had heart surgery, but the difficulties inherent to your situation were made starkly clear when upon your release you resumed opiates and morphine use.  The reports suggested a neuropsychological assessment to determine if there was an acquired brain impairment.  Such a report was prepared in January 2012, well before the October 2013 offences, for the purposes of reporting to a court at that time.  Dr Lindsay Vowels, a neuropsychologist, wrote an extensive report.  That report highlights significant observable risk factors for acquired brain impairment.

28In relation to your intelligence, you are in the lower level of the average range with a full scale IQ of between 85 and 95.  Executive abilities are damaged and make it difficult for you to unlearn old habits and master new ideas and skills.  You are impulsive and have difficulty self-regulating your behaviour.  You demonstrate significant cognitive disabilities in  the mild to moderate level sufficient to warrant a diagnosis of acquired brain impairment, with some brain trauma contributing.  You have amnesia and dysexecutive syndromes, severe depression and marked anxiety.

29Three other reports were provided.  Dr Shepherd of Rumbalara Health Service, where you've been a patient for some four years, provided a report in July 2012 and he reported that you had ceased methadone to opt for a cold turkey approach.  You were attending church and were in a relationship at that time.  Dr Cidoni reported in February 2013 that you were likely to be affected by post-traumatic stress disorder which included nightmares and flashbacks.  Carla Lechner provided a report dated February 2014 and she begins her report with reference to polysubstance use disorder and major depression.  She reports that you attempted to hang yourself when arrested in relation to these matters and that these aggravated burglary and armed robbery offences occurred in the context of you believing you were attending the home of a drug dealer who was supplying drugs to your niece.

30Your open heart surgery of early 2011 was after you contracted a fungal infection through intravenous drug use.  She reported your extreme distress at your offending and opined that you find it hard to regulate your emotions and internal distress, responding with substance abuse, leading to drug-affected offending where your judgment and impulse control are as poor as your decisions.

31Although one may properly describe your offending on these two occasions as self-induced drug-related offences, in my view there is here, because of your background and impact of your mental capacity, the need to sensibly and adequately moderate the specific deterrent and general deterrent elements of the sentence according to the principles discussed in Verdins to the end of recognising that your moral culpability must be seen to be substantially reduced by this background and life circumstance.

32There are some positive aspects which relate to your recent relationship which appears to be supportive, and you have reconnected with religious faith which based on your letter appears to be providing you with a positive outlook on life.  You appear to have the support of a large family structure and that will provide you hopefully with support into the future.  You are close to that family structure and in particular to your stepfather.  You assert that despite drugs being available to you, you have refrained from their use while in custody and you speak of a newfound hope for yourself.

33There is no doubt that your battle in resisting relapsing into drug use is your biggest challenge.  Your use of ice, which appears to be blighting this community, started you on the road to this ultimately self-destructive and criminal behaviour.  Your prospects for rehabilitation must be very guarded, but it appears that the period in reclusion already served at least has been of some little benefit.

34I take into account the principle of totality, although there must be a measure of cumulation as between the two indictments reflecting the two separate occasion.  There must, in my view, be a larger measure of concurrency to each offence within the parameters of the indictments.  Totality also means that my intent is to pass a sentence which is appropriate to the criminality, to all the circumstances outlined which leave the prospects of rehabilitation alive.  However, it was acknowledged that imprisonment was the only option available to the court, and it must be so in view of the serious offences committed.

35I take delay in relation to the trial matters into account, given that you made attempts at rehabilitation in the period leading up to the 2013 offences.  It is a factor which does not  constitute significant amelioration.  I've considered also the issue of parity with the penalty which was imposed on your co-accused.  I should note that your co-accused in relation to the trial matter has not been dealt with.

36As to the more recent matter, Kyra Morgan received an adjourned undertaking.  She is young and has had one minor prior.  Your son Tyson, who was 20 and had no priors, was placed on probation in the Children's Court.  Ron Croxford, who is 29 years of age received a wholly suspended 12 months sentence of imprisonment for recklessly causing serious injury and affray.  He had a substantial prior criminal history.  These sentences, in my view, essentially reflect the secondary role played by them in the offences where it was clear that you were the primary offender and instigator.

37I've taken your personal plea in writing into account, and by allowing you to serve a larger than usual non-parole period, hope that you will be able to achieve the good intentions to which you say you aspire to.  I hope the parole period will provide some practical assistance and intervention in your life, while the strength to stay away from drugs and to reclaim your life is a challenge that you may be able to meet with the assistance of  your family and friends.

38Mr Fitzgerald is there an agreed period for pre-sentence detention?

39MR FITZGERALD:  It was 117 days on the last occasion Your Honour, and seven extra days not including today, so it is 124.

40HIS HONOUR:  Excluding today?

41MR FITZGERALD:  Excluding today, yes Your Honour.

42HIS HONOUR:  124 days.  Yes, thank you.

43On the trial indictment plea, on intentionally cause injury, you are sentenced to 12 months imprisonment.  On the affray, you are sentenced to nine months imprisonment, and on the recklessly cause serious injury, you are sentenced to 24 months imprisonment.  I order that three months on the intentionally cause injury be cumulative on the base sentence, being the recklessly cause serious injury, making two years and three months on that indictment.  But for your plea, I would have sentenced you to three-and-a-half years, with a three year non-parole period.

44On the plea indictment on the aggravated burglary, you are sentenced to 30 months imprisonment.  On the armed robbery you are sentenced to 24 months imprisonment.  On the theft you are sentenced to one month imprisonment.  On the possess drug of dependence you are sentenced to one month imprisonment.  On the fail to answer bail for each of the resist arrest and false report, you are sentenced to one month on each.  I order that three months of the sentence on the armed robbery be cumulative on the base sentence for the aggravated burglary, making a total of two years and nine months.  But for your pleas on that indictment, I would have sentenced you to four years with three years non-parole period. 

45I order that nine months on the trial plea for the first indictment be cumulative on the sentence on the plea indictment, making a total of three years and six months.  I order a non-parole period of 22 months.  But for your pleas, the total effective sentence would have been four years and nine months with a three year non-parole period.

46I declare that you have served 124 days of pre-sentence detention, which will be noted in the records of the court.  I have signed the disposal order.

47Are there any other orders that I need to make?

48MR FITZGERALD:  No Your Honour.