Director of Public Prosecutions v Morgan
[2022] VCC 787
•1 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02106
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BROCK MORGAN |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2022 | |
DATE OF SENTENCE: | 1 June 2022 | |
CASE MAY BE CITED AS: | DPP v Morgan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 787 | |
REASONS FOR SENTENCE
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Subject: Prohibited person possess firearm – conduct endangering life – common law assault.
Catchwords: Guilty plea - discharge of firearm and assault of partner during domestic argument – significant and ongoing harm to victim – disadvantaged background – low IQ – drug dependence – conflict resolution issues – risk of institutionalisation – need for therapeutic intervention for protection of community.
Legislation Cited: Sentencing Act 1991 (Vic); Firearms Act 1996 (Vic).
Cases Cited:R v Postiglione (1997) 145 ALR 408; Worboyes v R [2021] VSCA 169; Boulton v The Queen (2014) 46 VR 308; Pasinis v The Queen [2014] VSCA 97.
Sentence: 21 months’ imprisonment and an 18 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | N. Burnett | Office of Public Prosecutions |
| For the Accused | E. Byrt | Emma Turnbull Lawyers |
HIS HONOUR:
1Brock Morgan, you have pleaded guilty to:
(a) one charge of prohibited person possess a firearm;
(b) one charge of conduct endangering life;
(c) two charges of common law assault; and
(d) one charge of possess drug of dependence.
2You also pleaded guilty to the following related summary offences, namely:
(a) possess cartridge ammunition without a licence; and
(b) possess controlled weapon without excuse.
Circumstances of Offending
3The circumstances are set out in the Summary of Prosecution Opening dated 17 March 2022.[1] They are agreed facts.
[1] Exhibit A.
4In January 2021, you had been in a relationship with Sarah Ives[2] for about 14 months’. You lived at her Werribee home with her two children and her.
[2] A pseudonym.
5When you moved into her home you brought a shot gun and ammunition with you. Sometimes you slept with the shotgun under a pillow.
6On 29 January 2021, during an argument, Ms Ives demanded you leave. You grabbed her by her neck and slammed her into a wall. Then you threw her onto the bed, straddled her and choked her with your right hand. (Charge 3, common law assault).
7After you released your grip she stood up from the bed with her back to you. You fired a cartridge, which contain rock salt, into the bedroom wall (Charge 2, reckless conduct endangering life and part of Charge 1, prohibited person possess firearm). As she left the room you said, “The next time I use it, (referring to the firearm), it will be through your head not the wall”. (Charge 1 – prohibited person possess firearm).
8On 3 February 2021, during another argument, in the bedroom, when Ms Ives demanded you leave, you grabbed her by the neck, slammed her onto the bed and started to strangle her while you punched her 3 to 4 times to the back of her head (Charge 4 - common law assault).
9Ms Ives’ two children came to the bedroom when they heard her crying. You told them to stay out of it and closed the door. Shortly after, Ms Ives came out of the bedroom and then returned, leaving the door open. Her daughter saw you grab Ms Ives by the neck and hold her against the door. When she tried to intervene you told her to go away. When she tried to help her mother her finger got jammed in the door. She heard you say to Ms Ives, “I’ll put a bullet through your head” (Charge 4, common law assault).
10Ms Ives took your shot gun and hid it outside. Outside, you grabbed her by the neck and hit her three or four times to the ribs and demanded she tell you where she had hidden the shot gun. In fear, she told you.
11Meanwhile, Ms Ives’ son had gone to his auntie’s home, nearby, for help. When the aunt came to the house Ms Ives and you were still arguing. After you slammed the door the auntie told you not to assault Ms Ives. You responded by smashing your TV with a baseball bat. You threw a pair of gardening shears at Ms Ives. When she told you to leave, you packed some belongings, disassembled the shot gun and put it, with a box of ammunition into a duffel bag (Charge 1 – prohibited person possess firearm). Before you left you told her she would never be safe and shouldn’t be surprised if her dog was dead in the morning.
12Two days later, on 5 February 2021, police arrested you at Footscray railway station. You had the duffel bag. In it, were the shotgun, disassembled into parts, a box containing shotgun cartridges (possess cartridge ammunition without licence), a folding knife, (possess controlled weapon without excuse), and a bottle of GHB (Charge 5 - possess drug of dependence).
13At interview, you exercised your right to remain silent in respect of the allegations but made hostile remarks about Ms Ives.
14You were charged and remanded in custody.
15You indicated your guilty plea at Committal Mention on 6 September 2021.
Victim impact statement
16I have read Ms Ives’ victim impact statement.[3]
[3] Exhibit B.
17Your crimes have had a profound effect upon her. She lives in fear. She suffers anxiety, sleep disturbance and nightmares. In the disruption of moving to a safe house, following your arrest, her daughter lost her job. Ms Ives herself, incurred costs of relocation and is struggling financially, while on WorkCover, to look after her children and herself.
Criminal record
18You have admitted a criminal record.
19Three weeks before this offending, on 12 January 2021 at Werribee Magistrates’ Court, you were placed on a Community Correction Order for burglary, handling stolen goods and driving offences.
20You have a number of other summary convictions, recorded between 18 July 1997 and 18 March 2019, for predominantly drug and driving offences.
21On 30 April 2013, on a successful appeal from the Magistrates’ Court to this Court, you were sentenced to 4 months’ imprisonment, wholly suspended, for drug possession and assault and hinder police.
22On 12 June 2013, at Ballarat Magistrates’ Court, you were sentenced to 4 months’ imprisonment, 3 months’ of which was suspended, for reckless conduct endangering serious injury, driving in a manner dangerous and driving while suspended.
23On 8 May 2014, at the Ballarat Magistrates’ Court restored 3 months’ of that sentence following other offending.
24On 8 April 2014, you were sentenced to 4 months’ imprisonment for driving offences.
25On 4 December 2015, at Sunshine Magistrates’ Court, you were sentenced to 169 days imprisonment, equivalent to the time you had been held in custody, with a 12 month’ Community Correction Order for driving and other offences
26On 11 September 2018, at Ballarat Magistrates Court, you were sentenced to 12 months’ imprisonment for burglary, theft, weapons offences and other offences.
27On 18 March 2019, at Ballarat Magistrates Court, you were sentenced to 2 months’ imprisonment for driving whilst disqualified.
28You have convictions, imposed at Ballarat Magistrates Court on 12 June 2013, for contravention of a Family Violence Intervention Order and resist police, which contravened an earlier Community Correction Order. The magistrate confirmed the Community Correction Order and made no further order.
29Because you had served a prison term for an indictable offence within 5 years of your offending and because you were subject to a Community Correction Order, with a supervision condition, when you offended, you were a prohibited person under the Firearms Act 1996 (Vic).
Personal Circumstances
30You were born in January 1980. You were 41 years old when you offended. You are now 42.
31Your personal circumstances are set out in the psychological report of Dr Aaron Cunningham who assessed you on 21 September 2021.[4]
[4] Exhibit 3.
32You are an only child who grew up in Sunshine. You had a good relationship with your mother. Unfortunately, your father abused alcohol and drugs and was violent towards your mother and you. When you were young your mother was sadly diagnosed with leukaemia. She was unwell for many years and died in 2008.
33You attended local schools. You struggled with learning and could not read or write. You left school in Year 9 to work at a motorcar wreckers. At 18, you got work as a painter and decorator. In 2010, you injured your shoulder in a motorcycle accident and have not worked since.
34You have a history of alcohol and drug abuse. You abused alcohol until your mid-20’s. Since then you have abused mainly methamphetamine and also cocaine and amphetamine.
35You have two children, a 21 year old daughter from a short relationship, and a 20 year old son, from a longer relationship, which ended in the context of your significant drug abuse.
36Psychometric testing indicated significant intellectual impairment in your verbal comprehension and working memory. In Dr Cunningham’s opinion, these impairments compromise your problem solving, emotional regulation, consequential thinking and conflict resolution skills. However, in his view, your drug abuse, which would have increased your disinhibition and tendency toward violent and reckless behaviour, was the main contributor to your offending.
37Dr Cunningham assessed you as a moderate risk of future violent offending. In his opinion, abstaining from drug use and improving your ability to cope with relationship conflict would reduce the risk. He recommends drug and alcohol counselling and the men’s behaviour change program for you.
38You told Dr Cunningham life in prison is easier than living in the community, because there is less to worry about in prison.
39You have completed two urine screens, in March 2021 and August 2021 which were both negative.[5]
[5] Exhibit 2.
40To Dr Cunningham, you showed limited insight into your offending and its consequences for Ms Ives which, in his opinion, is a reflection of your intellectual impairment.
41Because of your limited literacy you find it difficult to express yourself in writing. Through your Counsel, Ms Byrt, you offered Ms Ives an apology.
42You said:
“I am sorry for my actions. If I could go back I would change them. I realise now what I have done would have been really frightening and I am really sorry.”
43In prison, you have trusted work as a head billet for your unit. In that position, you are responsible for all other unit ballots and you help prisoners find work within the prison. You have regular telephone contact with your son, daughter and a friend. In person visits were suspended during the pandemic and have only recently recommenced.
44Your son will have you live with him when you are released from prison.
Defence Submissions
45Ms Byrt, in written and oral submissions, acknowledged your offending was serious.[6]
[6] Exhibit 1.
46In support of a submission I impose a combination sentence of imprisonment, equivalent to your time served, with a Community Correction Order, she relied on the following mitigating factors:
(a) first, your early guilty plea, for its utilitarian value and as an indication of remorse;
(b) second, your expressed remorse;
(c) third, your disadvantaged background;
(d) fourth, your impaired mental functioning;
(e) fifth, your progress to rehabilitation in custody;
(f) sixth, the additional hardship of prison during the pandemic related restrictions; and
(g) seventh, your children’s support.
47She submitted protection of the community and your rehabilitation would be best advanced by a sentence which provides for the therapeutic conditions of a Community Correction Order, to address your drug and alcohol and conflict resolution issues.
48She referred to the Court of Appeal’s observation in Boulton that an advantage of a Community Correction Order is it demands of the individual that he “take personal responsibility for self-management and self-control”.[7]
[7]Boulton v The Queen (2014) 46 VR 308, at [114].
Prosecution submissions
49Ms Burnett, who appeared for the prosecution, submitted[8] your offending was objectively serious because:
·your conduct was reckless and dangerous;
·Ms Ives was terrified;
·she sustained physical injuries of abrasions and marks; and
·the emotional harm to her has been significant and ongoing.
[8] Exhibit C.
50Ms Burnett submitted, while rock salt was potentially less dangerous than live ammunition, the discharge of the firearm in the bedroom would have been no less frightening for Ms Ives.
51She submitted that you were on a Community Correction Order when you offended and that you assaulted Ms Ives in the presence of her children, on 3 February, are aggravating features of your offending.
52Accepting Dr Cunningham’s opinions, she submitted your rehabilitation is dependent upon your abstinence from drugs and improving your capacity to resolve personal conflict.
53She submitted general deterrence, denunciation and community protection are prominent sentencing considerations for family violence offending.
54She submitted your offending was too serious for the imposition of a composite sentence and the Court should impose a head sentence with a non-parole period fixed.
Consideration
55Your crimes are serious.
56General deterrence, denunciation and community protection are important sentencing considerations for family violence offending.
57In Pasinis v The Queen Court of Appeal said;
“The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy term of imprisonment so that they are no longer in a position to inflict harm.”[9]
[9] Pasinis v The Queen [2014] VSCA 97, at 57.
58You should not have been in possession of any firearm. You used it to scare and intimidate Ms Ives. She was no doubt terrified when you discharged it near her in the bedroom. Your conduct was reckless and dangerous. As well, you assaulted her then and, again, 5 days later.
59Your possession of the firearm was a continuing offence. You had it when you offended on, 29 January 2021, until the day police arrested you, 5 February 2021. It is relevant you had disassembled it after you discharged it on 29 January.
60It is an aggravating feature of your offending that you were on a Community Correction Order, imposed 3 weeks earlier, when you offended.
61That you assaulted Ms Ives in the presence of children is also an aggravating feature of Charge 4, common law assault.
62A prison term is required in your case.
63There are mitigating factors which I take into account to moderate the sentence I will impose.
64Firstly, you are entitled to a substantial sentencing benefit for your guilty plea. It has spared your former partner the worry and anxiety of the trial.
65And it has additional utilitarian value during the public-health pandemic, because it alleviates the current strain on the justice system.[10]
[10]Worboyes v R [2021] VSCA 169, at [35] and [39].
66Secondly, I accept your apology to Ms Ives is genuine and you are remorseful.
67Thirdly, your background of disadvantage and impaired mental functioning moderate your moral culpability to a degree.
68Considering your remorse and your good behaviour in prison I assess your prospects of rehabilitation as reasonable. Your drug and alcohol issues and your difficulties negotiating interpersonal relationships, must be addressed to reduce your risk of reoffending.
69Protection of the community is also a relevant consideration. In my view, the community will be best protected by a sentence which provides for the therapeutic conditions of a Community Correction Order, to address your drug and alcohol and conflict resolution issues.
70Because your offending, in the context of domestic violence, is serious there must be some custodial component to punish you.
71In considering the length of the prison term I take into account the need to avoid the risk of your institutionalisation.
72Overall, I am satisfied a composite sentence, with its punitive and rehabilitative components, will best achieve the purposes of sentencing in your case.[11]
[11]Boulton v The Queen (2014) 46 VR 308.
73I have had you assessed for an order and you have been found suitable.
74I accept the assessing officer’s recommendations.
75Because you are to be sentenced for a number of offences, applying the totality principal, I must ensure your overall sentence is “a just and appropriate measure of your total criminality”.[12]
[12] R v Postiglione (1997) 145 ALR 408, at 416-17.
76Because your crimes arose out of a short episode, I will impose an aggregate sentence for them.[13]
[13] Sentencing Act 1991 (Vic), s 9(1) and 44(1).
77By the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
78Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
on the charges of:
(i)prohibited person in possession of a firearm (Charge 1);
(ii)conduct endangering life (charge 2);
(iii)common law assault (Charge 3);
(iv)common law assault (charge 4);
(v)possess drug of dependence (charge 5), which was for your personal use;
and the summary offences of:
(i) possess cartridge ammunition without a licence (charge 10); and
(ii) possess controlled weapons without excuse,
you are convicted and sentenced to 21 months’ imprisonment in combination with 18 month Community Correction Order which will commence upon your release from prison.
79I impose special conditions, namely:
(a) supervision;
(b) drug and alcohol treatment; and
(c) offender behaviour programs.
80I also propose a Judicial Monitoring condition and you will be required to attend this Court on 3 May 2023 at 9:30AM, which will be about six months following your release from prison.
81I declare you have already served 481 days of your sentence by way of presentence detention.
82While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 4 years’ imprisonment and fixed a minimum non-parole period of 2 years and 9 months’.
83I make orders, for disposal of the GHB and forfeiture of the shot gun, cartridges and knife.
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