Director of Public Prosecutions v Morgan

[2020] VCC 192

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted

AT LATROBE VALLEY

CRIMINAL DIVISION

Case No. 19-02177

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE MORGAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	24 February 2020
DATE OF SENTENCE:	28 February 2020
CASE MAY BE CITED AS:	DPP v Morgan
MEDIUM NEUTRAL CITATION:	[2020] VCC 192

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Office of Public Prosecutions
For the Accused	Mr S. Peterson	Stephen Peterson Lawyers

HIS HONOUR:

1.George Morgan, you have pleaded guilty to one charge of armed robbery.  You can sit down Mr Morgan.  And one uplifted summary matter of committing an indictable offence whilst on bail.  Those crimes carry maximum penalties of
25 years and three months respectively.  Insofar as the Magistrate Court matters are concerned I simply sentence you to be imprisoned for seven days concurrent.

2.You are now 52 years of age.  You pleaded guilty at the earliest reasonable opportunity and the circumstances of the offending and your arrest which I'll describe in a moment, can only really be described as sad.  You must get the utilitarian benefit of that plea of guilty.  I accept that your plea of guilty is accompanied by as best you can, appropriate remorse.  You are a person who has an acquired brain injury, you are schizophrenic, have very low intellect and has, ever since you were very young, had a very, very unstable life. 

3.You do have a significant and long criminal history.  On my calculations you have been gaoled on at least 20 occasions.  On my calculations, not including incidents of being put into psych hospitals whilst in prison, you have had
28 admissions to psychiatric institutions.  As I say, that does not even include what's happened whilst you've been in custody.  And that has been going on for something like, 35 years.

4.A summary of the offending is that on 28 July 2019 you armed yourself with a small black handled knife and at approximately 9.05 pm you entered the Morwell McDonalds on the corner of Princess Drive and Midland Highway, Morwell.  Not only did you have the knife but you had with you a teddy bear.  You told effectively your counsel and certainly you told people in that have given you psychiatric care afterwards that you believe that was for security for you.  In any event you entered the store through an unlocked front door.  You held the knife in the air, walked directly to the main counter, walked past one person who was cleaning bins.  Walked behind the counter and with the knife in your hand demanded that the manager hand over cash from the cash register.

5.You said, 'Give me all your fucking money' and said that on a number of occasions.  The money was taken from the till and handed to you which gives rise to the charge of armed robbery.  You then walked to the customer side of the counter, stopping near another person.  You then stared at them for a while which may well have been because of your psychiatric condition where you accept that you believe you were under threat of death from people from Adelaide at the time all this was happening.

6.After walking to the front of the store, holding the cash in your hand, you then just stepped outside, took a $50 note from the bundle of cash and put that note in your wallet.  You turned, stepped back into the store and through the rest of the money into the store saying, 'Here's your money.'  You then turned back around and left the store by the front entrance.  At this stage you were confronted and again confronted by customers who were nearby and had seen it occur.  You simply, without remonstrating or attacking them in any way shape or form, went and sat down on a chair in the restaurant and waited for the police to arrive.

7.It seemed to me when I first read this material that you had carried out this crime in order to be arrested, that you had simply had enough.  It is clear from the medical material, that is in fact the case and that is what you told medical people when you were being treated.  You, at that stage believed that you were under threat of death.  And that people from Adelaide were trying to kill you and that you saw custody as a safe place to be. 

8.In any event, you could not be interviewed and were charged and you have been on remand ever since.  You have now served 215 days and that is the sentence together with the Community Correction Order that I intend to impose.  In the months and weeks leading up to this offending you had been sentenced to be imprisoned for a period of 87 days back at the end of May. 

9.In June you were bailed for a short time and then you were back in custody.  You had been bailed in early July 2019 and it was only a matter of a couple of weeks before this attending takes place.  You were homeless, jobless, friendless, family-less and then it is fair to say in a hopeless situation.  By
then – and I am doing this from all the medical records which have been tendered and I will refer to that again in a moment.  By then, because of your mental illnesses and your substance abuse you had basically burnt as the expression goes, everyone who tried to assist you.  You have had numerous Community Corrections Orders and failed.  Your family had effectively given up on you and were sick of you.  You were surf couching, you had been living on the streets effectively.  You had a brother in Traralgon who was endeavouring to look after you but this is the state that you had come down to. 

10.Armed robbery in itself is a serious crime and in the normal course of events, calls for the application of general specific deterrence, denunciation and appropriate punishment.  You, as I think I have already indicated are an Aboriginal man and Bugmy, Muldrock, Cooper, Smith virtually every case that relates to Aboriginal sentencing applies to you Mr Morgan, almost a text book.  Those normal sentencing factors really go out the window I think where you are concerned.

11.What's happened in the last few months is that you've now had stage IV renal failure.  You have reached a stage where through illness, genetics probably, substance and alcohol abuse over a long period of time your body is in the process of giving up on you.  You now have in gaol over the last period of time, been having dialysis three days a week.  And your advisors and your sister, who is now standing by you have been able to put into place a situation where you will be able to receive that dialysis at the Latrobe Valley Hospital. 

12.The material that has been provided on your behalf includes a number of medical records both from St Vincents, from the gaol and from Latrobe Valley.  There is a letter from Ms Green who is known to me in the Aboriginal community which in itself is sad indeed.  She says and this is not directed specifically at me she thinks I am the parole board, she knows now I am not.  Among other things, 'I want to offer my support for early release for George Morgan on compassionate grounds due to his medical condition of stage IV cancer.  I believe that the family's interest is to have George at home on his last days rather than dying in prison alone.' 

13.And I accept that, I accept also that the only sister of George, Jean, is going to endeavour to look after you.  You apparently do have somewhere to go and stay, despite all your limited capacities, I am pretty sure that you realise that if you do not use this opportunity and continue to have the medical treatment that is available to you, your life span will be very, very short indeed.  And that I think a view understood by all involved. 

14.Sad as that may be I still have to impose a sentence which does reflect in objective terms, the seriousness of all this.  As I have said, I have taken those medical records into account.  I have taken the reports into account.

15.Also in your particular situation your history stands as an indictment of community standards back in the 1980s.  You on the material before me, I would accept were taken as a child. Tendered before me and is a letter of apology from the Department of Health and Human Services which says, 'Simply Dear
Mr Morgan,' I doubt that you can read this actually.  'Dear Mr Morgan, I am writing to apologise for the abuse and neglect that you suffered while you were a Ward of the State of Victoria.  And acknowledge that you did not receive the consistent and loving care that every child needs and deserves.  You have described through your legal representatives the harrowing nature of the abuse you experienced while residing at Alambie Reception Centre, Menzies Family Home Group and Baltara Reception Centre.  I acknowledge that your experiences while a Ward of the State were seriously damaging to you.  And have had an ongoing negative effect upon your life.  Please accept this letter as a true apology, an expression of deep regret on behalf of the State of Victoria.'  That letter is unfortunately around about 40 years too late.

16.In any event the prospects of your rehabilitation I have got no idea but your prospects are really are as to whether you can stay alive or not.  The risk of you reoffending if you do not comply with the medical regime, start using again, will again depend on how long you live.  But I think it will be as the CCO people have said, inevitable.

17.I have had you assessed for a Community Corrections Order and they have basically had enough of you too.  In their report they say, 'You are not suitable.'  I think they are probably dead right.  The fact of the matter is I have little confidence that overall, this is going to make much a difference other than prolong your life hopefully.  There is Court of Appeal authority says that I do not take into account the prospect of whether CCO can be complied with when I give one.

18.In these circumstances they have said that you are not acceptable, they also effectively acknowledge that I am going to do it anyway because they say, if you do impose one, which I am perfectly entitled to, we suggest the following conditions.  And I will be imposing those conditions, other than the drug one.  I think it is far too late for the drug as you start using you will die. 

19.Accordingly you will be sentenced to be imprisoned for a period of 215 days.  And I direct that 215 days be reckoned as having been served under this sentence.  That is on Charge 1.

20.Further on Charge 1, upon release from goal, which will be today, you will be on a two year Community Corrections Order.  It will be with conviction and the conditions will be that of supervision and medical and mental health assessment and treatment.  I understand before you sign this, I understand that you are on bail for Magistrates' Court matters and I make it clear for the transcript that with the understanding of counsel, I have spoken to the magistrate involved in all this.  And she in fact bailed you yesterday or the day before and is fully aware and conversant with all these materials.  And shares the same concern for your future as we all seem to do.  But that is a matter for her at a later time.

21.HIS HONOUR:  You are on bail for the Magistrates' Court matters George all right.

22.OFFENDER:  Is that Judge Collins who - - -

23.HIS HONOUR:  Yes, yes I've had a yarn to her all right, she's worried about you too.

24.OFFENDER:  Okay right.

25.HIS HONOUR:  All right but you'll need to go and see her on 17 March.

26.OFFENDER:  Yep all right.

27.HIS HONOUR:  All right?

28.OFFENDER:  Yep.

29.HIS HONOUR:  All right now Mr Peterson will explain all that to you.

30.OFFENDER:  Yeah.

31.HIS HONOUR:  But she wants to have a yarn to you too all right?

32.OFFENDER:  Yes.

33.HIS HONOUR:  All right not that she hasn't had a yarn to him before but that's another thing.  Yes all right do you want to go down and make sure he understands what this is or try to.  All right just stand up for a second George if you would?  All right Steve's explained to you, you know what a CCO is right?

34.OFFENDER:  Yes sir.

35.HIS HONOUR:  Can I just say this to you, it's up to you whether you go through with this treatment I can't do much about that.  But you're seeing Magistrate Collins in a couple of weeks she'll want to have a yarn to you.  I just ask you this, look if you start to hear voices, if things are talking to you, that type of thing tell people.

36.OFFENDER:  Yeah.

37.HIS HONOUR:  All right.  What really concerns me George in this armed robbery, okay you didn't attack anybody, you didn't stab anybody.

38.OFFENDER:  No.

39.HIS HONOUR:  But George you scared the hell out of those two kids, you know that don't you?  The kids that were in there.

40.OFFENDER:  Yeah.

41.HIS HONOUR:  Can you promise me that you'll try, if things start to go bad in your head, try not to hurt people.

42.OFFENDER:  I go to Flynn ward.

43.HIS HONOUR:  You go to Flynn ward mate all right, just don't hurt anybody.

44.OFFENDER:  Yeah.

45.HIS HONOUR:  Promise me that?

46.OFFENDER:  I promise.

47.HIS HONOUR:  Okay thank you George.  All right, yes thank you, take him over now and work out – the sisters not here yet, no we'll work it all out in a moment.  If you can let him go, can you just ask him to stay in the foyer, don't let him out of the foyer.

48.HIS HONOUR:  Is there any questions arising out of that?

49.MR PETERSON:  I'll speak with his sister as soon as I get out of here.

50.HIS HONOUR:  He's not under arrest but give him a cup of coffee or something, I really appreciate it.  Yes see you George.

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