Director of Public Prosecutions v Morgan
[2022] VCC 830
•6 June 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01216 / CR-20-01624
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN MORGAN |
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JUDGE: | HER HONOUR TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2022 | |
DATE OF SENTENCE: | 6 June 2022 | |
CASE MAY BE CITED AS: | DPP v Morgan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 830 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – one charge aggravated burglary – one charge sexual activity directed at another person – one charge theft – one charge failing to comply with reporting obligations – related summary offences – circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offender Registration Act 2004
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v De Simoni (1981) 147 CLR 383
Sentence: Total effective sentence of 4 years and 6 months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Foot | Office of Public Prosecutions |
| For the Accused | Mr R. de Kretser | Slades & Parsons |
HER HONOUR:
Introduction
Plea of guilty and maximum penalties
1
Ben Morgan, you have pleaded guilty to one charge of aggravated burglary (intent to steal, knowing or being reckless as to the presence of a person present), the maximum penalty for which is 25 years' imprisonment, one charge of sexual activity directed at another person, which has a maximum penalty of five years' imprisonment, and to one charge of theft, which has a maximum penalty of
10 years' imprisonment.
2On a separate indictment, you have also pleaded guilty to one charge of failing to comply with Sex Offender Registration Act reporting obligations, the maximum penalty for which is five years' imprisonment.
3You also pleaded guilty to the related summary offences of possessing prohibited weapons, an offence which carries a maximum penalty of two years' imprisonment or 240 penalty units and to unlicensed driving, an offence with a maximum penalty of six months' imprisonment or 60 penalty units.
Circumstances of offending
4The circumstances of your offending are set out in the Amended Summary of Prosecution Opening dated 22 May 2022. This document became Exhibit A on the plea. It forms part of and is attached to these reasons. I note the revised plea opening did not rely on the content of paragraphs 9, 22, 41 or 42 and I do not take these paragraphs into account on sentence. I will not repeat the whole of the prosecution summary here but refer just to parts of it.
5At the time of your offending, you were 42 and lived in Montmorency. You have been a registered sex offender since 3 December 2015. Yours is a life-long registration.
6On 23 June 2019, you had been provided with the most recent copy of your reporting obligations. One of your obligations was that you report to police, within seven days, the make, model, colour and registration number of any motor vehicle owned or generally driven by you. In early March 2020, you bought a 1984 silver Volvo sedan, registration PCW 945. You had been provided with the transfer papers. You were yet to obtain a roadworthy certificate.
7
On 14 March 2020, Ms Abby Hampton[1] was living with her two housemates
Henry Anderson[2] and Ellia Murphy[3], in Arnott[4] Street Brunswick West. Their house was a single story weatherboard on the corner of two streets. There was a low wire fence at the front which joined onto a tall timber paling fence around the sides and back of house. Abby Hampton had the room at the front of the house, next to the front door. The room had a four-pane window facing out to the street.
[1] A pseudonym
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
8On the evening of 14 March 2020, Ms Hampton went to a wedding in Abbotsford. She left the venue alone shortly before midnight and caught the number 58 tram home. When she got home, she dropped her bag next to her bed, closed the curtains and undressed. She turned out the light and got into bed at approximately 1:30am.
9You were in Brunswick West at this time. You formed the intention to commit a burglary in a home in this area. You entered Ms Hampton's home at about 4:00am through a bathroom window. You went through the house and into Ms Hampton's room. This conduct gives rise to Charge 1 on the indictment as amended; aggravated burglary with the intent to steal, knowing or being reckless as to the presence of a person inside.
10You took Ms Hampton's wallet from the bag on the floor next to her bed and this gives rise to Charge 3, theft.
11Ms Hampton awoke. She could sense someone was in her room. She heard a sound she described as a wet smacking sound. She opened her eyes to see the silhouette of you standing over her next to her bed. Although she could not see your penis, she identified the sound of masturbation and could also see the outline of your body moving in a motion consistent with that activity. This gives rise to Charge 2, sexual activity directed at a person.
12Ms Hampton screamed, 'Who the fuck are you,' several times, to which you replied, 'I'm a friend of yours.' Ms Hampton repeated her question a number of times and you kept responding with the words, 'I'm a friend of yours.' Ms Hampton described you speaking calmly with a strong Australian accent.
13Ms Hampton then screamed for her housemate Henry Anderson. Notwithstanding this, you continued to masturbate next to her bed for another 20 seconds, before running from the room, and leaving the house through the front door. Ms Hampton ran to her housemate's room. Mr Anderson rang 000, and police arrived a short time later. About three days later, Ms Hampton realised her wallet had been stolen during these events.
14When police arrived, they found the side gate from the house was open onto the street, the bathroom window was open and there was evidence of disturbance in the dust on the outside of the windowsill. An extensive search of CCTV of the surrounding area was conducted by police and a large amount of footage was seized. Your distinctive Volvo was seen in the area. Data from your bank accounts revealed that you had been in the vicinity on the night of the offending.
15On 22 March 2020 at 1:50am, you were found by police sitting in the driver's seat of your 1984 Volvo in Tinning Street, Brunswick. You told police that you were on the Sex Offender Register and had bought the car a week earlier. You had not complied with the obligation to report the purchase of this car and this gives rise to Charge 1 on the second indictment, failing to comply with reporting obligations on Indictment L10754566.1.
16You were searched and a credit card fold out knife was located in your pocket. This gives rise to Summary Charge 5, possessing a prohibited weapon without approval. A search warrant was subsequently obtained, and your house and car were searched.
17During that search, investigators found two knuckle dusters with blades, one throwing star and a diamond shaped blade. This gives rise to rolled up Summary Charge 7, possession of prohibited weapons without approval.
18Your car was seized. You were later arrested. Subsequent enquiries established that you were not licensed to drive on the days of 15, 22 and 24 March 2020. This gives rise to Summary Charges 10, 11 and 12, driving while unlicensed.
Interview
19Turning now to your police interview. On 24 March 2020, you were interviewed by police and denied the allegations. In the interview, you gave police a range of answers about your reasons for being in the area on the night of these events. You admitted buying the car and bringing it home 'a couple of weeks ago'. You told police you had told officers at Mernda station that you had bought the car, but you could not name the officers with whom you have spoken.
Procedural History
20Turning now to the procedural history of your case. This matter resolved to a plea after passing through the emergency case management system in this court. There was some preliminary cross examination, though, I note, not of the witnesses in the house. This was followed by a ruling on the 'paint flake' evidence and ultimately a sentence indication, in a form which was only made available to you by reason of a recent change in the law.
21On 14 April 2022, you applied to the court for a sentence indication pursuant to s 207 of the Criminal Procedure Act. The application was made in circumstances where the Act then provided for an indication of a 'specified maximum total effective sentence'. The indication that I then gave was of a maximum total effective sentence of four years and six months' imprisonment.
Personal circumstances
22Turning now to your personal circumstances. You are now 44 years old and at the time of your offending you were 42 years old.
23You were born in the outer suburbs of Melbourne. Your father worked as a mechanic, your mother as a schoolteacher and exam supervisor. You were raised in a good family. Your three siblings have grown on to be successful in their adulthood and have never been in trouble with the law. Your parents worked hard to provide for you and your siblings. You still maintain the steadfast support of your mother. Your father is now cared for in a nursing home, where he suffers from dementia.
24In your early adulthood you were a skilled tennis player, and you worked as a linesman and then a chair umpire with the Australian Tennis Open. You travelled with the Australian Open, and officiated overseas in Southeast Asia and Europe in that context. You have maintained membership of an inner-city tennis club and, before your incarceration, played tennis socially.
25You have a daughter born in July 2007; however, you have not had contact with your ex-partner, her mother, or her, now for a number of years.
26At the time of your arrest, you were working as a tow truck driver.
Nature and gravity of the offending
27Turning now to the nature and gravity of your offending. I must address the nature and gravity of your offending and your culpability and degree of responsibility and also articulate where your offending fits into a range of similar offending.
28
Your case resolved on the basis that you are to be sentenced for being in the Brunswick West area with the intention of committing a burglary and that you did not, prior to the commission of this offence, hold the intent to stalk or target
Ms Hampton in any way. The prosecution accepted your plea on the basis that, having entered the property with the intent to steal, you then developed the urge to masturbate and did so. Given the residential nature of the building and time of day, I conclude that you state of recklessness was high as to whether a person was present inside the building, if falling short of actual knowledge.
29Sensibly, your counsel did not attempt to avoid the fact that your behaviour was a very frightening experience for Ms Hampton and for her housemates.
30I assessed the charge of aggravated burglary at the lower end of the spectrum. Although there was some planning to enter the house, you did so with the intent to steal, and did steal, a wallet. I do take into account, however, in assessing the gravity of the aggravated burglary, this was an entry to a house in the very early hours of the morning through a bathroom window. I am conscious not to doubly punish you as between the aggravated burglary and the theft charge.
31I regard the most serious of the charges, notwithstanding its comparatively low maximum penalty of five years, to be the offence of sexual activity directed at another person. It was acknowledged by your counsel that this is a very serious example of this form of offending, even taking into account that there was no actual touching. I regard, by reference to the circumstances of this offence, being in a woman's bedroom with you as a trespasser in the early hours of the morning next to her in bed and waking her to the sound of your masturbation, to be very grave indeed. There is an also a persistence to what you did, continuing to masturbate for about 20 seconds even after Ms Hampton had loudly raised the alarm.
32I have taken into account some of the same matters that arise out of the aggravated burglary charge in assessing the gravity of Charge 2. I am very mindful of the need not to doubly punish you for the aspects of the aggravated burglary charge bit overlap with my assessment of the gravity of the charge of sexual activity directed at another and this will be reflected in the orders for cumulation.
33The circumstances of your commission of the charge of sexual activity directed at another, I find, are fundamentally so serious that, despite the disparity in the maximum penalties for these offences, I will structure your sentence on the base sentence on Charge 2.
34
It was argued, and I accept, that your breach of the
Sex Offenders Registration Actobligation was at the lower end of the spectrum in the circumstances where that charge arises, having only recently come into possession of the vehicle. However, I note and take account of, a prior criminal conviction for the same offence.
35The possess prohibited weapon charges and unlicensed driving charges, I regard of relatively minor nature.
Victim impact statement
36
Turning now to the victim impact of your offending. On the sentencing indication I was asked to consider parts of a statement made by Ms Hampton as to the impact of your offending on her. At the plea hearing, I was assisted by considered
Victim Impact Statements from both Ms Hampton and Ms Murphy. The contents of these statements were predictable, but that does not detract from their eloquence.
37These two young women set out how what you did has affected them. No doubt, their lives, like anyone's, were already full of challenges and complexity, but you have overlaid all those normal challenges with another most unfair and pernicious burden that they have had to shoulder. I listened carefully to the details of the sleepless nights, Ms Hampton's sleep paralysis, and the description of loss of a sense of safety in the world. What you did to Ms Hampton and Ms Murphy was outrageous and I take it into account on your sentence.
Criminal record
38Turning to your criminal record. You have admitted a highly relevant and concerning prior criminal history with offending involving indecency in three States. Your previous most serious offending took place on 25 February 2011 in the ACT and on 13 August 2008, although the first offending was dealt with more recently, after detection via the result of DNA matching.
39I have read the sentencing reasons of Her Honour Judge Harbison of this court in 2010 and His Honour Judge Burns of the ACT Supreme Court, and I have had regard to your criminal history more generally. You have one conviction for failing to comply with your Sex Offenders Registration Act reporting obligations. The balance of your Victorian criminal history is peppered with worrying offending that includes offences that are both invasive and predatory: stalking, indecent assault, wilful and obscene exposure.
40Your prior offending raises your moral culpability and brings into focus the need for specific deterrence and community protection in particular.
Matters in mitigation
41Turning now to matters in mitigation.
Plea of guilty
42First, your plea of guilty. You have entered a plea of guilty to these charges and, by doing so, you have saved the community, but most importantly, the witnesses, from the costs, both human and financial, of conducting a trial.
43Moreover, I must impose a sentence in the context of the COVID-19 pandemic, where the additional benefit to you pleading guilty ought to be palpable. You have taken one more trial out of a very long list of cases awaiting trial. The range of ways that cases are delayed at the moment continue to multiply and entrench difficulties in the finalisation of cases. The benefit to the administration of justice that your plea bestows is to be recognised and recognised in a concrete and substantial way.[5] I make it very clear that, were it not for these circumstances which have severely restrained the administration of justice in Victoria, your sentence would have been much higher.
[5]Worboyes v The Queen [2021] VSCA 169.
44Moreover, I assess the objective value of your plea as high in circumstances where, in my assessment, having followed this case through the case conference process and pre-trial argument, that neither prosecution nor defence held the perfect cards. The issue in the proposed trial was to the identification. The prosecution's case on identification was an imperfect and circumstantial case, though the defence also faced obstacles. As the result of your plea, you have foregone any opportunity of acquittal which, in my observation, was not entirely remote; you have foregone any opportunity for acquittal, even an undeserved one. This weighs heavily in the mitigation of your sentence and increases both the objective and subjective value of your plea.
45This was not an early plea but still a valuable one. Your plea vindicates the witnesses in this case and delivers to them a degree of finality which may, it is hoped, support their recovery. I find your plea has inherent in it an aspect of remorse.
Prospects of rehabilitation
46Turning now to prospects of rehabilitation. You are clearly motivated to and have capacity for, work and study. A range of certificates outlining your educational and vocational achievements in custody were tendered on the plea. You are a delivery vehicle driver in custody, a position demanding both competence and trustworthiness.
47You have been productively occupied, even after serving sentences in the community. You are not a stranger to meaningful employment or prosperity. Your offending has not entirely distorted or determined your existence. You maintain an ability to secure employment. You maintain your mother's unconditional affection and support, and she would have been at court if not for her other family commitments in the United Kingdom. Her support remains absolute, and you have a place to live when you are released.
48That said, I adopt your counsel's submission to the effect that your rehabilitative prospects must be seen as guarded. You have served custodial sentences previously for sexual offending. You have undergone treatment programs. You continued to offend in this extremely serious way.
49You have successfully completed parole in the past, and I expect you will be required to engage with further treatment programs, either before or during a parole period.
Relevant sentencing principles
50Turning now to the relevant sentencing principles. I am obliged to sentence you in a way that deters other people from behaving in similar ways. As already noted, I regard specific deterrence to be an important feature of this sentence.
51If you are to avoid spending more and more extended periods of your life in custody, you need to frankly confront the underlying causes of your offending. I trust this sentence will facilitate the first part of that task.
52Moreover, you must be punished for what you did, and it is hoped that this sentence will be significant enough to deter you personally from behaving in this way again. Through me and through this sentence, the community denounces your offending. It is disturbing, not only for your victims, but for members of the broader community. It is intrusive, demeaning and completely unacceptable.
Totality and Concurrency
53Turning now to questions of totality and concurrency. I have had regard to the principle of totality in arriving at your ultimate sentence and orders for cumulation. As I have already said, I am aware of the requirement to not doubly punish you as between the theft and the aggravated burglary charge and as between the aggravated burglary charge and the charge of sexual conduct directed at another. I have taken into account aspects of the aggravated burglary in arriving at the sentence on Charge 2 and bear that in mind in relation to cumulation. I have also been careful not to aggravate, in breach of the rule in De Simoni,[6] the sentence for the aggravated burglary (intent to steal) by reference to what you did thereafter.
[6] R v De Simoni (1981) 147 CLR 383.
COVID-19 Pandemic
54Turning now to your conditions of custody in the circumstances of the COVID-19 pandemic. Although the community is now widely vaccinated and fewer restrictions govern our pandemic lives, the anxieties and uncertainty of our time persists, particularly for those in custody. It is clear that, for some time, prisoners in Victoria have suffered the anxiety of not knowing if or when the virus will enter the prison system and the steps taken to control the virus' movement in custody have meant harsher conditions for prisoners and it is likely they will do so for some time to come. I understand that you have been subject to multiple lockdowns during your custody, and you have had very limited face-to-face contact with outside visitors during this time.
Regard to current sentencing practices
55I have had regard to current sentencing practices for similar offending. No particular case is exactly like yours and my job is to deliver individualised justice, but I have had regard to the general sentencing landscape.
Submissions on disposition
56Submissions on the disposition from both prosecution and defence were the same in that both parties submitted that the form of this sentence must be a head sentence with a non-parole period.
Disposition
57Turning now to the disposition, and these are the sentences that I now impose on you, Mr Morgan.
Indictment L10754566.A
· On Charge 1 on the first indictment, aggravated burglary, you are convicted and sentenced to two years and three months' imprisonment.
· On Charge 2, sexual activity directed at another person, you are convicted and sentenced to three years and three months' imprisonment.
· On Charge 3, theft, you are convicted and sentenced to six months' imprisonment.
· In relation to the offending on the first indictment, I direct that 12 months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2, making a total effective sentence on that indictment of four years and three months imprisonment.
58I will return in a moment to the sentence on the second indictment.
Related Summary Offences
59First, to the related summary offences:
· On related Summary Offence 5 (Charge 5), possessing a prohibited weapon, namely a fold out knife, you are convicted and sentenced to one month imprisonment.
· On related Summary Offence 7, the rolled-up charge of possessing prohibited weapons, you are convicted and sentenced to one month imprisonment.
· On related Summary Offences 10, 11 and 12, driving unlicenced, you are convicted and fined $200 in relation to each of the three charges.
60Turning now to the second indictment.
Indictment L10754566.1
61On Charge 1, failing to comply with reporting obligations, you are convicted and sentenced to seven months' imprisonment.
62I direct that three months of the sentence on the second indictment be served cumulatively upon the sentences imposed on the first indictment, making a total effective sentence on both indictments of four years and six months and a total fine of $600.00 for the driving while unlicenced.
63HER HONOUR: I haven't got to the non-parole period and I haven't forgotten, but what I need to correct first is that I've imposed fines on the licences - - -
64MR DE KRETSER: Yes.
65HER HONOUR: - - - and I ought not have done that because it's not consistent with the indication that I've given and it only occurred to me as I read it out. So what I'm going to do is, impose an aggregate fine on the licence charges to be served concurrently so that I don't outstrip my indication. Does that make sense, Mr de Kretser?
66MR DE KRETSER: Yes.
Non Parole Period
67I direct that you are to serve a total of three years and one month before becoming eligible for parole.
Pre-sentence detention
68I declare pursuant to s18 of the Sentencing Act, that you have served 804 days by way of pre-sentence detention to be reckoned as a period already served under this sentence.
s6AAA reduction
69Pursuant to s 6AAA of the Sentencing Act, I am obliged to state what sentence I would have imposed, had you not pleaded guilty but been found guilty after trial and I state that I would have imposed a period of imprisonment of six years and one month, with a non-parole period of four years and one month.
70HER HONOUR: Ms Foot, is there anything I've neglected?
71MS FOOT: There was a disposal order, I believe, Your Honour.
72HER HONOUR: Very good. Mr de Kretser, do you have anything to say about that?
73MR DE KRETSER: No. None of the material, I think, that was on the disposal order was - it wasn't opposed.
74HER HONOUR: All right. I make the disposal order as sought, and are the orders otherwise clear?
75MS FOOT: Yes.
76HER HONOUR: All right, in that case we'll adjourn. Thank you, counsel, for your assistance in this case.
77MR DE KRETSER: As Your Honour pleases.
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