Director of Public Prosecutions v Morgan
[2021] VCC 1737
•5 November 2021
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL (KOORI COURT) DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01202
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JIRRAH MORGAN |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | LATROBE VALLEY | |
DATE OF HEARING: | 18 October 2021 | |
DATE OF SENTENCE: | 5 November 2021 | |
CASE MAY BE CITED AS: | DPP v Morgan | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1737 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Damage property – theft – aggravated burglary – related summary offences – plea heard in County Koori Court – participation in the sentencing conversation – no prior criminal history – young offender – delay - low risk of future offending - excellent prospects of rehabilitation – impact of loss of licence on employment prospects if convicted of theft of motor vehicle
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Worboyes v. The Queen [2021] VSCA 169; Honeysett v. The Queen [2018] VSCA 214
Sentence: With conviction, a 12 month Community Correction Order imposed, in addition to a fine for theft of motor vehicle and the imposition of a 12 month adjourned undertaking (without conviction)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin (Plea and sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr G. Cooper (plea and sentence) | Victoria Legal Aid |
HER HONOUR:
1Jirrah Morgan, you have pleaded guilty to four criminal offences on indictment arising from two separate incidents.
2Arising from an incident in Bairnsdale between 1 January 2019 and 28 February 2019, you have pleaded guilty to one charge of damaging property contrary to s 197(1) of the Crimes Act 1958 (‘the Act’) (charge 1). The maximum penalty for the offence of damaging property is 10 years’ imprisonment. You have also pleaded guilty to the summary related offence of trespass contrary to s 9(1)(e) of the Summary Offences Act 1966 (summary charge 18), the maximum penalty for which is 6 months’ imprisonment or a fine of up to 25 penalty units.
3Arising from the incident on 17 November 2019, you have pleaded guilty to one charge of theft of a motor vehicle (charge 2), one charge of aggravated burglary contrary to s 77 of the Act (charge 3) and one charge of theft of a mobile phone contrary to s 74(1) of the Act (charge 4). The maximum penalty for the offence of aggravated burglary is 25 years’ imprisonment. The maximum penalty for the offence of theft is 10 years’ imprisonment.
4You have also pleaded guilty to a further three summary offences; namely:
· possession of a prohibited weapon without exemption contrary to s 5AA of the Control of Weapons Act 1990 (summary charge 15) the maximum penalty for which is 2 years’ imprisonment or 240 penalty units;
· possession of cartridge ammunition without a licence or permit contrary to s 124 of the Firearms Act 1996 (summary charge 16), the maximum penalty for which is a fine of up to 40 penalty units; and
· contravention of a conduct condition of bail contrary to s 30A(1) of the Bail Act 1977 (summary charge 17), the maximum penalty for which is 3 months’ imprisonment or a fine of 30 penalty units.
5Mr Morgan, you were born in January 2001. At the time of the offending you were 18 years old and had no prior criminal history.
Circumstances of the offending
6
Your plea was heard in the County Koori Court on 18 October 2021. At the plea hearing the prosecutor read a summary of the prosecution opening dated
16 September 2021, which is the agreed basis upon which you are to be sentenced.
7
I deal first with the offending between 1 January 2019 and 28 February 2019. On an occasion between those dates you and two co-offenders – who were both
15 years old – attended the rear of residential premises in Ross Street, Bairnsdale where the victim, Lisa Milligan, and her son lived in her caravan. You and your co-offenders were wearing items of clothing that concealed your faces.
8One of the group tried to open the caravan door, but it was locked. You all knew Ms Milligan’s son, and called out to him in an attempt to persuade him to open the door. He refused. He then opened a window to the caravan and tried to film the group of you on his phone. In response, you attempted to knock the phone out of his hand. When he refused to open the door, you picked up a brick and threw it through the window of the caravan. This conduct gives rise to charge 1 – the offence of criminal damage. One of the co-offenders picked up a scooter and threw it through another window. After five minutes, you all left as you were concerned about the noise you had made.
9After this incident, Ms Milligan repaired the damage to her caravan and sold it on 15 June 2019.
10The second incident of offending occurred on 17 November 2019. On that date, a torch and keys to a white VE Holden Commodore were stolen in a burglary from a shed at the rear of residential premises in Bairnsdale. You are not charged in relation to that offence. However, on that date you and the co-offenders pushed the vehicle out the driveway and onto the street. One of the offenders entered the driver’s seat and you entered the front passenger seat. The group then left in the stolen car. It is this conduct that gives rise to charge 2 – theft of motor vehicle.
11At approximately 3.30 am on 17 November 2019, you attended an address in Wy Yung in the stolen vehicle. You were all wearing face coverings. The group of you disconnected the main power leads and your co-offenders entered a caravan at the rear of the property. You remained at the doorway but are complicit in the aggravated burglary. Victims, Brianna Watts-Siely and Presten Irish were asleep in the caravan. This conduct gives rise to charge 3 – aggravated burglary.
12Brianna Watts-Siely’s Oppo brand mobile phone was stolen – charge 4 – theft. Your co-offender approached the victim, Presten Irish, and began to punch him to the head. He felt three to four blows to the head and woke up. He heard that offender say, ‘You’re being robbed cunt, give me all your money’. You are not charged in relation to the assault on Mr Irish, but it is part of the context in which the overall offending occurred.
13Ms Watts-Siely woke and, hearing the commotion, armed herself with a stick. She began to defend herself and Mr Irish. One of your co-offenders tried to hit Mr Irish, but missed and hit Ms Watts-Siely in the chest instead, causing her pain and a loss of breath. She continued to swing her stick, and was pushed onto the bed. The group wrestled with the victim for a period before deciding to flee in the stolen Holden Commodore.
14Police subsequently attended the property and, in the early hours of 18 November 2019, located the stolen vehicle.
15On 17 December 2019, police executed a search warrant at your home and there they located a sword, an extendable baton, a throwing knife, hunting darts, a sword in a sheath and a Sai (a knife-like item). This gives rise to summary charge 15 – possession of prohibited weapons. Police also located a large plastic bag containing a “large number” of .22 ammunition cartridges, giving rise to summary charge 16 – possess ammunition. Also found at your house was the stolen Oppo mobile phone.
16You were interviewed by police. You admitted owning the weapons and ammunition rounds. You told police you had found the Oppo mobile phone and denied all other offending.
17You were remanded overnight, and then bailed by the Bairnsdale Magistrates’ Court. It was a condition of your bail that you not associate with the co-accused. However, later that night, at 5.15 pm on 18 December 2019, you contacted one of the co-accused at Ravenhall, in which you told him the other two co-offenders had “snitched” on them and told the police, ‘every little detail of what [we] did’. You told the co-accused, ‘you and me we’ll be right if we… say you don’t know’. It is this contact with the co-accused gives rise to summary charge 17 – contravene a conduct condition of bail.
Offence gravity and victim impact
18Mr Cooper, appearing on your behalf, accepted that these are serious charges. The offence of aggravated burglary is a particularly serious offence, as is reflected in the maximum penalty of 25 years’ imprisonment.
19
The aggravated burglary is established by the fact you and the co-accused entered the caravan with an intent to steal. This could not be described as a low level example of an aggravated burglary. You attended in company, at night (it was
3.30 am) when the victims were asleep in their caravan, and therefore particularly vulnerable. You and the co-offenders wore face coverings and had disconnected the power to the caravan before entering, demonstrating a degree of advance planning. The victims were then confronted, in darkness. These are aggravating features of the offending.
20This was a particularly frightening incident for the victims. This is borne out by their victim impact statements. Ms Watts-Siely says that after this incident she struggles to trust people and feels depressed. She now worries that people are going to do the wrong thing by her. Understandably, she has difficulty sleeping due to fear of this occurring again at night. Mr Irish, in his victim impact statement, says he has also lost trust in people and has since installed security cameras to make him feel safe.
21Fortunately, no one was harmed by your act of throwing a brick through the window of Ms Milligan’s caravan. However the risk inherent in this act is clear. It was also a terrifying experience for the victim. In her victim impact statement, Ms Milligan says she felt anxious and depressed since the offending, and is now over-protective of her family. She too has installed security cameras to make her feel safe. She is now reluctant to leave her house at night, being fearful of returning in darkness. She is receiving counselling to help deal with her feelings of 'helplessness and depression'.
22Ms Watts-Siely, Mr Irish and Ms Milligan were all entitled to be safe in their homes. Your offending has undermined their sense of safety. I have taken their victim impact statements into account in sentencing you.
23
You possessed a significant number of weapons, including swords and knives.
Mr Cooper submitted you were unaware of the illegality of these items. There is no material before me to suggest otherwise and no weapons were used by you in connection with the commission of the other offending. However, the possession of a large number of .22 ammunition cartridges is, by its very nature, concerning.
24
Overall, for a young adult with no prior criminal history, it is concerning that your first offence was such a serious one, however I accept the submission of
Mr Cooper that you were a less active participant in the aggravated burglary and had no direct involvement in the assault on the victims on that night.
Personal circumstances
25As I stated, you were 18 years old at the time of this offending. You are now 20.
26You were born in Bairnsdale to parents, Adrian and Jacqueline. You have six siblings; three brothers and three sisters to whom you are close. You father is a proud Gunai-Kurnai man, and your grandmother is a well-respected elder who was one of the founding members of the Gippsland and East Gippsland Aboriginal Co-operative (GEGAC). You father worked as a health worker at GEGAC for 17 years and for the past three years he has held the position of Aboriginal Liaison Officer at Bairnsdale Regional Health.
27Your parents separated when you were 5 years old. After they separated, you lived with your mother, two sisters and your older brother. You lived with your mother until Grade 4 at which point you moved to live with your father. You now live with your two older brothers, both of whom work.
28Your father demonstrated his ongoing support for you by attending the sentencing conversation before your Elders on 18 October 2021. In a letter of support he wrote to the Court dated 12 October 2021 your father says you are a hard-working student who is motivated to obtain a steady job. He says you share a close relationship and he attributes your offending to getting caught up in the wrong crowd and says you are ashamed of what occurred.
29During Years 11 and 12, you were employed as a trainee at East Gippsland Shire in Parks and Gardens, including maintenance, cleaning, gardening and ground keeping duties. You then obtained employment with the Gunaikurnai Land and Waters Aboriginal Corporation (GLaWAC), where you worked for eight months doing bushfire recovery work and then as part of the cultural heritage crew for around two to three months. A general reference from the General Manager on Country at GLaWAC, Daniel Miller, dated 30 August 2021 describes you as well-liked and respected with a genuine interest in the work.
30You recently commenced a two-week trial as a bricklayer, with the aim of obtaining an apprenticeship as bricklayer. You have also played football from a young age, including with Lindenow South Football Club. A reference from the Club states you always present as polite and have a strong attendance record at training.
31You were assessed by forensic psychologist, Mr Jeffrey Cummins, whose report dated 14 September 2021 was tendered on your plea. You have no history of alcohol or drug abuse. You have no history of poor mental health, beyond feeling anxious about the outcome of these proceedings. In Mr Cummins’ opinion, your offending was the result of ‘adverse peer group influence’ and reflective of ‘a degree of immaturity and naivety’. In his opinion, you present as a low risk of future offending.
Sentencing considerations
32Mr Cooper provided detailed sentencing submissions on your behalf, which he expanded upon at your plea.
33There are a number of significant mitigating factors in your favour.
34First and foremost, you entered an early plea to the charges. In pleading guilty at this stage, you spared the victims the ordeal of giving evidence in court and the community the time and expense of running a trial. There is significant utility in your plea. The value of your plea is heightened against a COVID-19 background where an early guilty plea carries even greater weight in mitigation than a similar plea entered in other times[1]. The plea is also an indication of remorse and an acceptance of responsibility by you for your conduct.
[1]Worboyes v The Queen [2021] VSCA 169, [35]-[39]
35I accept there is other evidence of remorse. Mr Cummins reports that you are genuinely ashamed, embarrassed and regretful of your offending behaviour. Your father similarly states that you are ashamed of your conduct.
36You were 18 years old when you committed these offences and are to be sentenced as a young offender. As I stated you are now 20. The law recognises that youth is relevant to sentencing in a number of ways. First, it is recognised that young offenders are often immature and more likely to make ill-considered or impulsive decisions without fully appreciating the seriousness of their conduct. Secondly, for young offenders, their rehabilitation is a primary sentencing objective.
37In your case, close to two years have passed since you were charged. Two committal mentions could not proceed in the Magistrates’ Court due to the impact of COVID-19 and were administratively adjourned. This delay has been through no fault of yours. It is a long period in which the outcome of these matters has been hanging over your head. I have taken that delay into account in sentencing you. Moreover, you have used this time to demonstrate your strong prospects of rehabilitation. You have no subsequent or pending matters. Since being charged, you have continued to work in various jobs, first at GLaWAC and most recently in the building industry where you aim to obtain an apprenticeship.
38I find that this offending, although serious, was an aberration. You are a young Aboriginal man of otherwise good character, with strong connections to your culture, a strong work ethic, family support and with no history of substance abuse or mental health issues. I conclude that you are a low risk of future offending and have excellent prospects of rehabilitation.
39You chose to have your plea proceed in the Koori Court. The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process through the sentencing conversation with Aboriginal elders and respected persons. Others, including your father , were able to contribute to that sentencing conversation.
40Participation in the process can be more confronting than appearing at a traditional plea hearing because you cannot hide behind counsel. As the Court of Appeal has stated[2], participation in the Koori Court sentencing conversation is a mitigating factor as the process, being voluntary, often involves shaming.
[2]Honeysett v The Queen [2018] VSCA 214
41Uncle Lloyd Hood and Auntie Dianne Hurren were the respected elders who took part in the sentencing conversation that included you and your father. Each of the elders challenged you about your conduct and you were respectful towards them.
42I find your participation in the sentencing conversation, whilst hesitant, was genuine. I take your participation in the Koori Court process into account. This fact, combined with your lack of priors, your early plea, your genuine remorse and my assessment as to your future prospects, lead me to conclude that less weight needs to attach to either specific deterrence or the need to protect the community from you.
43The prosecution confirmed that your co-offenders were sentenced in the Children’s Court. One received a Youth Supervision Order and the other a Probation Order, both of 12 months’ duration. Whilst parity in sentencing between co-offenders is often a relevant sentencing consideration, in your case this is less so as different sentencing considerations apply when sentencing children. It follows that whilst your co-offenders played a more significant role in the aggravated burglary, your moral culpability is still significant as you were older, indeed you were an adult. For adults, the sentencing considerations of general deterrence, just punishment and denunciation are all relevant sentencing considerations for offending of this nature.
44On your behalf, Mr Cooper submitted the sentencing considerations could be met by the imposition of a community correction order (CCO), without conviction, in order to best promote your prospects of rehabilitation. Specifically, it was submitted that the mandatory loss of licence arising from a conviction for charge 2 – theft of motor vehicle - could undermine your future employment and apprenticeship prospects.
45The prosecution did not oppose you being assessed for a community correction order, but submitted the gravity of the offending warranted the imposition of a conviction.
46In my view, and having regard to the factors set out in s 8 of the Sentencing Act 1991, a conviction is warranted for the offences of aggravated burglary and the theft of Ms Watts’ mobile phone arising from the incident on 17 November 2019, and for the offences of criminal damage and trespass committed between January and February 2019 having regard to the seriousness of these offences and the aggravating circumstances in which they were committed. I also note that the aggravated burglary was committed some eight to nine months after the first incident, during which you had adequate time to reflect on the wrongfulness of your conduct in company with the co-offenders.
47I have, however, determined not to record a conviction for the offence of theft of motor vehicle on 17 November 2019. Your involvement in this offence is limited to being a passenger in the stolen vehicle and no more. I appreciate the stolen vehicle was used in connection with the aggravated burglary, but it is important to recognise it is charged as a separate offence. In this case, I consider your prospects of rehabilitation are best promoted if you have the opportunity to pursue the prospect of an apprenticeship for which you will require a licence to work in the greater Bairnsdale area.
48Having regard to all relevant sentencing considerations, including your participation in the Koori Court process, I therefore sentence you as follows:
49On charge 1 – criminal damage, summary charge 18 – trespass, and on charge 3 – aggravated burglary and charge 4 – theft of the mobile phone, you are convicted and sentenced to a 12 month community correction order. I consider these offences to be part of a series of offences of a similar character allowing me to impose the one community correction order.
50You have been assessed as suitable for a community correction order. Given your low risk of future offending, the report of Corrections did not recommend supervision as a condition of that order. I agree with that assessment.
51It is a condition of the community correction order that you do undertake 120 hours of unpaid community work and participate in a culturally appropriate men’s group, such as that run by Uncle Cliff Wandin at Dardi Munwurro. You have consented to the making of this order.
52On charge 2 – theft of motor vehicle, you are fined, without conviction, $800. I make no order against your licence.
53On summary charges 15, 16, and 17 you are placed on an adjourned undertaking without conviction to be of good behaviour for a period of 12 months.
54The community correction order and the adjourned undertaking can be breached if you do not comply with the conditions of the orders or reoffend whilst they are in place. If that occurs you will be required to appear back before me for firstly breaching the orders and, secondly, for me to consider re-sentencing you for the charges for which you have been sentenced today.
55Section 6AAA of the Sentencing Act 1991 requires me to tell you the sentence I would have imposed if you had not pleaded guilty to the charges. This is somewhat artificial in the context of this case because I have taken into account so many factors. However, if not for your pleas of guilty I would have sentenced you to an 20 month community correction order, with conviction on all charges.
56I make the forfeiture and disposal orders sought by the prosecution, noting they are not opposed.
57Mr Cooper, I will just ask Mr Morgan to confirm he consents to that order, both the community correction order and the undertaking, and then they will be forwarded to him separately for signing.
58MR COOPER: Yes.
59HER HONOUR: Mr Morgan?
60OFFENDER: Yes, Your Honour.
61HER HONOUR: Mr Morgan, you have heard that I have placed you on a community correction order and an adjourned undertaking. It is a condition of that undertaking that you will be of good behaviour for 12 months. I am just confirming that you consent to both orders being made.
62OFFENDER; Yes, I do, Your Honour.
63HER HONOUR: Thank you. Can I ask counsel if there are any questions?
64MR DEVLIN: No, Your Honour.
65MR COOPER: No, Your Honour, thank you.
66HER HONOUR: Thank you. Mr Morgan, I just want to speak to you briefly just if you could say yes because when you say yes I can then see you on the screen?
67OFFENDER: Yes, Your Honour.
68HER HONOUR: Thank you. If you could just say that again? You just need to speak again to come up on the screen.
69OFFENDER: Yes, Your Honour.
70HER HONOUR: Mr Morgan, what I did want to say to you is that a community correction order, as Mr Cooper has said, is a punishment in itself, but you need to appreciate that it is an opportunity that is being given to you to complete a sentence in the community and to avoid detention.
71I genuinely hope you seize this opportunity and can move forward from here to make a worthwhile contribution to the community and, as the Elders said, to become a leader yourself over time.
72Thank you for your participation in the Koori Court. We will now adjourn court.
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