Director of Public Prosecutions v Morgan
[2021] VCC 1860
•18 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00023
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YARRUN MORGAN |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 18 November 2021 |
CASE MAY BE CITED AS: | DPP v MORGAN |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1860 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Moleta | |
For the Accused | Ms K. Miller |
HIS HONOUR:
1Yarrun Morgan, you are to be sentenced for one charge of rape and one charge of recklessly causing serious injury. The respective maximum sentences are 25 and 15 years' imprisonment. You pleaded guilty before me on 19 October.
2When interviewed by police on 4 June 2019, you falsely denied being the perpetrator. There was a committal on 10 January 2020. Your victim, 'SN' did not have to give evidence. Your defence challenged identity and causation of serious injury was raised. At that time, charges against you included intentionally causing serious injury. You were committed to this court. The matter resolved to these offences in late 2020, and you were first arraigned and pleaded guilty on 9 February this year. There was some delay before the plea hearing also on 19 October.
3You receive the benefit of your plea of guilty and that level of cooperation in the proceedings. Your plea has facilitated the interests of justice, accepted responsibility and expresses remorse. The utilitarian benefit of your plea is increased by reason of the impact of the COVID-19 pandemic on the criminal trial system. As to timing of the plea, it is relevant that the more serious offence causing serious injury intentionally did not proceed against you.
4At your plea hearing, Mr Brown, for the Crown, tendered an amended summary of prosecution opening; it was dated 2 September 2021; and the victim impact statement of 'SN'. He provided a written outline of submissions on sentence.
5Mr Marsh, for you, tendered the Aboriginal Community Justice Report by Rachael Benbow and Shannon McLeod, the forensic psychological report of Simon Candlish dated 2 October 2021, the neuropsychological report of Martin Jackson dated 13 March 2020 and his addendum report dated 14 October 2021. Mr Marsh also provided written submissions on sentence.
6Mr Brown also provided that.
7The circumstances of these offences are set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the Crown.
8You are a 24-year-old Aboriginal man, aged 21 at the time of offending. Your early life has been badly damaging. I shall return to that.
9In the approximate two years prior to the night of your offences, you had with some success worked at rehabilitating your life. However, in the weeks before, you had seriously lapsed and were heavily abusing drugs, mainly methylamphetamine and alcohol. I was told that you had not slept for several weeks. On the day or night of the offending, you were affected likely by alcohol, cannabis, methylamphetamine and Xanax. Your victim, 'SN', is a young British woman, then 23, who was living in the Mildura area and on a working holiday visa. You did not know each other.
10On 1 June and into 2 June 2019, 'SN' was out with friends, drinking and socialising in the Mildura Hotel. Others left and upon 'SN' later leaving the hotel, she became disoriented as to the direction to where she was staying. CCTV footage evidence suggests that you followed her from a more central part of the township area, to the George Chaffey Bridge which crosses the Murray River towards New South Wales.
11You then brutally attacked her. You grabbed her in a bear hug, she was screaming, unable to get away. Holding her, you put your left hand and fingers into her underwear and digitally penetrated her. You then punched her hard to the eye. She fell backwards and down the bank of the river. She was seriously injured and unconscious for a short time.
12At 2.51 am, she phoned her housemate for help. Shortly after 3 am, she phoned the police. Friends found her at 3.25 am. Taken to hospital, she was found to have a fractured eye socket. Treatment has included that it was necessary to perform a bone graft from her hip to the eye socket.
13Investigation led to your arrest on 4 June.
14The victim impact statement of 'SN' describes in an insightful yet powerful way the mental and physical effects of your offending. There are constant feelings of anxiety and fear, including about being seen or labelled as a victim. There is fear of intimacy, loss of confidence, loss of a sense of self, and trust; also hypervigilance. She has suffered post-traumatic stress disorder symptoms of nightmares, insomnia, and panic attacks. There is social isolation and from family. She suffers depression. Physically, she has undergone two surgeries. Eyesight has been affected which includes some double vision. There is nerve damage causing numbness to the right side of her face. She worries about the future of her physical symptoms. There has been financial cost. “I am not complete”.
15There has been very considerable victim impact which must be taken into account in my sentence of you. “SN” statement also presents a resilient determination to recover and manage the aftermath of what you did to her.
16As stated, you are now aged 24 and await this sentence in remand custody. You were born and have lived much of your life in the Wentworth area in South Western New South Wales, not far from Mildura in Victoria. You are part Yorta Yorta. Wurundjeri and Barkindji. You identify most strongly with your Barkindji heritage. They are people of the Wentworth and rivers area. Your mother was only 15 when you were born; and other women, your grandmother and aunt, have played stronger caring roles in your upbringing. You are the only child of your parents, but have half siblings on both sides.
17The tendered Aboriginal Community Justice report gives a comprehensive, compelling history of your disadvantaged life circumstances. It is taken up also by Mr Marsh's outline of submissions. That also presents a description of the evolving principles stated throughout cases such as Fernando, Neal, Bugmy, and, in Victoria, Terrick and others. In short, your childhood and developing years exposed you (within your close and extended family, but also beyond) to violence, drug and alcohol abuse, dislocation and abandonment, racism, and what must be seen as extreme, debilitating poverty and disadvantage.
18There was inherited cultural disenfranchisement, generational tragedy including stolen children, early death, including in custody, criminal offending, imprisonment, and mental illness. You were sexually and physically abused. Your mother was not for a number of reasons able to functionally care for you. Your father had little helpful involvement with you. Formal schooling was not successful. You did not complete Year 9. There has been some employment, mainly in farm work.
19Neuropsychological testing places you at a full-scale IQ of 67. You have a long-standing learning disability. Most language skills are at Grade 3 level. The psychometric testing would, in my experience, mean a diagnosis of intellectual disability and therefore eligibility for assistance because of that. You are said not to be eligible because of 'adaptive functioning and independent skills'. I am surprised by this. However, neuropsychologist Martin Jackson states that a long-standing language learning disability is the preferred or appropriate diagnosis.
20In describing such a sorrowful history, I need to state members of your family, particularly your aunt and grandmother, have been supporting and caring. Also, you have been, to their and your own credit, able to be in a number of ways culturally respecting and a part of your people's heritage.
21It is not surprising that this background has caused damage to you in the sense of diagnosed psychological symptoms. The evidence before me particularly states personality dysfunction, persisting depressive disorder, alcohol and stimulant use disorder.
22The Victorian criminal history you have admitted states effectively three court appearances between November 2016, at the Children's Court when you were 19, and November 2017. There is a conviction for attempted armed robbery and threat to inflict serious injury in November 2017. In November 2016 you were placed on a bond without conviction for offending which included recklessly causing injury and indecent assault. The circumstances of your prior offending are described in the report of psychologist Simon Candlish.
23In the context of your deprived upbringing you were introduced to drug use early. The pattern of your prior criminal history is consistent with a period of rehabilitation from that when you were offence free for about two years prior to this offending. You had benefit from the program at Baroona Healing Centre near Echuca. You were also getting support local from Mildura at the Mallee District Aboriginal Services. In the time prior to these offences you relapsed into drug and alcohol abuse. That was at a time when your grandmother was away. You had been living with her.
24A simple description of the circumstances of the offending makes very clear the high seriousness of it. I find that you had premeditation, albeit very intoxicated, following your victim at least some significant distance. That you were a stranger in the dead of night would have added greatly to her fear and humiliation. It was a classic form of that predatory rape. I accept the submission that being digital it did not carry some of the risks, and fear of those, associated with penile penetration. The penetration was of short duration. Your assault of her occurred immediately after. It was closely connected but also separate. It was a brutal, damaging assault. I agree with Mr Brown's description of gratuitous. I was told that the concession that you were reckless, rather than intending a serious injury is based on intoxication and the fact of a single blow. I see it as a serious example of the offence. I have been to an extent troubled by the question of how the two sentences for rape and recklessly causing serious injury should compare. There is serious victim impact; you have relevant criminal history.
25The circumstances make important sentencing considerations of moral culpability, deterrence, that is both general and specific deterrence, strong condemnation of what you did, and proportionate punishment. A sentence of considerable length is necessary.
26Rape is a so-called standard sentence offence and the provisions set out in s5A and B of the Sentencing Act apply. The standard sentence for rape under s38 of the Crimes Act is 10 years' imprisonment. That is not determinative of my sentence but must be taken into account in the way those Sentencing Act provisions state and guide. Rape is also a category 1 offence under s5G(2) of the Sentencing Act and this requires mandatory imprisonment. That is a somewhat superfluous proposition here.
27There are relevant moderating factors which should affect my sentence. They include the following matters.
(1)Your plea of guilty and cooperation. The tendered Aboriginal Community Justice Report raises a cultural interplay between remorse, and for an Aboriginal person, shame. I accept essentially that you feel genuine remorse and shame.
(2)You are still a young person. You were 21 at the time of offending. Your youth is relevant both in consideration of the offending and the importance and prospects of your rehabilitation.
(3)Your personal history and circumstances. This has raised the principles stated in Bugmy and like cases as an important sentencing consideration. Your early life disadvantage was extreme in the combination of ways I have described and this reduces your moral culpability in accordance with those principles. That early life experience has seriously impacted upon you and therefore legitimately invokes the discretion of mercy. That deprivation and its antisocial environment explains your early introduction and addiction to drugs and alcohol. I bear in mind that your Aboriginality in itself does not mean a lesser sentence; however, decent recognition of human fact makes clear that it has played a considerable and central part, both in the disadvantage you have suffered and the impact upon you. Ultimately, it is that disadvantage and impact individual to you which is relevant.
(4)In addition, but also related, are your psychological conditions and impaired intellectual and learning capacity. Your mental health condition should be seen as largely an effect of your childhood and developing environment. The Verdins principles are specifically invoked as to your hardship in prison. There are other factors relevant to this. I accept that you suffer some cultural disadvantage and deprivation in prison. The COVID-19 pandemic affects you as it does others. Risk and anxiety about that, restrictions to movement, to rehabilitation, and in your case to cultural programs and supports, loss of personal and family contact are factors relevant to your sentence.
(5)I do not discount your prospects for rehabilitation; however, recognise that forensic psychologist Simon Candlish assesses you as of high risk for future sexual and violent offending. You are not only still relatively young, but I also take into account the potential for support to you in prison and when you leave on parole. These are quite specifically set out in the Aboriginal Community Justice Report and include cultural, social, medical and other rehabilitative supports. You have family support in your aunt and grandmother. You have shown, when assisted, a capacity to rehabilitate from substance abuse. In prison you have worked and developed your skills in Barkindji art. You are learning the Yorta Yorta language. You are said to mentor other Aboriginal young men.
(6)I must apply the principle of totality. As I have said, I see Charge 2 as connected; that is, part of the same offending episode, close in time. However, it is also separate in action; it did not enable Charge 1; it has caused serious impact related only to it. I do not sentence in a way that it aggravates Charge 1. It should receive an appropriate individual sentence. Totality requires only partial cumulation; but that cumulation should be substantial, reflecting what I have just earlier said. I bear in mind the need to avoid double punishment.
(7)There is also the matter of delay. It is now over two and a half years since your offending. I accept that this delay has been a source of stress and anxiety for you.
These moderating factors go to reduce your sentence; that is, compared to what the objectively seen seriousness of the offending would otherwise require. This applies to your head sentence and, particularly I find, in setting the minimum term before eligibility for parole.
28In that rape is a standard sentence offence, s11A(4) of the Sentencing Act requires a minimum term, at least 60 per cent of the head term; that is, unless it is in the interests of justice to do otherwise. I find that in the range of circumstances relevant to your case the just sentence requires that I do so. I note that the minimum term I said is only slightly over 60 per cent of the head.
29However, ultimately my sentence must also reflect and be proportionate to the very serious circumstances of this offending.
30After considering and weighing what I see to be the relevant matters, I sentence you as follows.
31On Charge 1, rape, you are sentenced to six and a half years' imprisonment.
32On Charge 2, causing serious injury recklessly, you are sentence to five years' imprisonment.
33I direct that two years of the sentence for Charge 2 be served cumulatively on the sentence for Charge 1. That is a total effective sentence of eight and a half years' imprisonment. I set a minimum term of five years before eligibility for parole. I declare a pre-sentence period of detention under s18 pf 898 days.
34What are the other matters I need to deal with, Ms Moleta? The s6A indication. Is there anything else?
35MS MOLETA: The disposal order application.
36HIS HONOUR: Yes. What is that in relation to?
37MS MOLETA: Items of clothing that were seized from the offender's home that were worn at the time.
38HIS HONOUR: Yes, all right, we will get those. Had you not pleaded guilty I would have imposed a sentence of 11 years with a minimum term of eight years. Ms Miller, there is an application for a disposal order in relation to various items, clothing and the like, that were taken during the investigation. Do you consent to that order being made?
39MS MILLER: Yes, Your Honour.
40HIS HONOUR: Yes, thank you. I will sign that now. Is there anything else I need to deal with today?
41MS MOLETA: Yes, Your Honour, there is one final matter. There was an application for sex offender registration. Your Honour had indicated at the plea hearing that a date would be set down following the sentencing hearing and we make that application.
42HIS HONOUR: Yes. There is an issue in relation to - it is not conceded, is that right? I cannot remember the circumstances that were raised at the plea hearing. What is the situation?
43MS MILLER: Yes, Your Honour, the application would be opposed.
44HIS HONOUR: All right. What is the timing requirement, Ms Moleta? The application needs to be made within a certain period of time after the conviction, is that right?
45MS MOLETA: It does, Your Honour, and I apologise, I don't have that to hand at the moment. I understand your associate indicated that Your Honour may be available next week if that's convenient to the court and to my friend.
46HIS HONOUR: It is always interesting to find out who really runs the show. I am going on leave tomorrow week. What is the urgency of this being heard before me next week? As long as it is within time, can it be heard next year? I am not forcing the issue but I am really just asking.
47MS MOLETA: Would Your Honour be content if I check that once this hearing is concluded and I can give you a response to it.
48HIS HONOUR: Yes, if you need to mention it next week. On other occasions that I have had to deal with this sort of situation, that is that it is a contested matter, it has not mattered that the proceeding on that contest occurs quite some time afterwards. This man is going to be in prison for quite some time so the arrangements for what he might have to do, if I decide that he should be registered, will not be compromised.
49Ms Miller, what's the issue that is raised in relation to it?
50MS MILLER: Your Honour, of course this would undoubtedly be the subject of more comprehensive submissions, but essentially there are concerns with respect to Mr Morgan's level of cognitive functioning and his ability to comply with such an order.
51HIS HONOUR: To comply with it.
52MS MILLER: In light of his literacy issues and inability to read, and as outlined very helpfully in Mr Jackson's report, the difficulty he would have in following something as stringent as that order.
53HIS HONOUR: I do not know what the Act says, it may not direct itself to that, but as to my experience of this legislation, what is raised I think is a significant issue, but I do not know that the legislation allows consideration of that. It may, so that is yet to be resolved by me.
54MS MILLER: Yes, Your Honour.
55HIS HONOUR: That is it in terms of what I need to say or arrange today. I will await some contact about when I should list that matter. Can I just add by way of remark, and it includes to you, Mr Morgan, the document that was tendered, I want to get the name of it right, the Aboriginal Community Justice Report, I found extremely helpful and informative about you and about other things, but most particularly the advantage it has is that it sets out a number of things or supports or help to you that can start now while you are in gaol and prepare you for when you leave gaol.
56I really hope that that follows through for you and that you stay with what you are doing and prepare yourself to leave prison and make it work when you do. Nothing else to say?
57MS MOLETA: No, Your Honour.
58MS MILLER: Nothing further, Your Honour.
59HIS HONOUR: Thank you.
60MS MILLER: As Your Honour pleases.
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