Director of Public Prosecutions v Morin

[2024] VCC 675

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR-23-01508, CR-22-01569

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYE MORIN

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JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2024
DATE OF SENTENCE:	15 May 2024
CASE MAY BE CITED AS:	DPP v Morin
MEDIUM NEUTRAL CITATION:	[2024] VCC 675

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing

Catchwords:              Trial – home invasion – common law assault – theft – Plea – prohibited person possess firearm (x2) – possess drug of dependence – Parity – Bugmy. 

Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)

Cases Cited: Hogarth v The Queen, [2021] VSCA 302 - DPP v O’Brien [2019] VSCA 245 - Sultan v The King [2022] VSCA 205 - Berichon v The Queen [2013] VSCA 319 - Worboyes v The Queen [2021] VSCA 149 - Bugmy v The Queen [2013] HCA 27 - DPP v Herrmann [2021] VSCA 160; Marrah v The Queen [2014] VSCA 119 - DPP v Drake (2019) VSCA 293 - Sikoulabout v The Queen [2018] VSCA 268 - Clark v The Queen [2020] VSCA 125

Sentence:                  Total Effective Sentence – 5 years imprisonment.  Non-parole period 3 years imprisonment. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. K. Farrell	Office of Public Prosecution
For the Offender	Ms. E. Strugnell	McNally & Gleeson Lawyer

HER HONOUR:

1Tye Morin, on 13 September 2023, you were found guilty at trial by a jury of 12 of one charge of home Invasion (Offensive Weapon), one charge of common law assault and one charge of theft (C2215527).

2On a separate indictment (N10528887) you pleaded guilty to two charges of prohibited person possess a firearm and one charge of possess a drug of dependence.  You have also agreed to this court hearing and have pleaded guilty to the summary charge of possess cartridge ammunition without licence.

Circumstances of the offending

INDICTMENT C2215527

3In brief summary, at the time of the offending the victim, Julian ROGERS, lived at  an address in Doveton. At about 1.00 am on 15 January 2022, Mr Rogers heard a knock at his door.  He opened the door and saw Mr Emmanual Lual, who was someone he knew as he had previously left a box of his phones with him to be repaired.[1]  He let him in and the next thing ‘the door started to be smashed in.’ 

[1] Evidence at Trial, Julian Rogers, 7 September 2023, page 70.

4CCTV shows two men, Adam Shortland, and a man alleged to be you at the front door of Mr Rogers’ home.  Mr Shortland was wearing a black hooded jumper with short sleeves, black shorts and black shoes.  He was carrying a claw hammer.  You were wearing a black hooded jumper with a large red ‘B’ on the bicep of both arms, black shorts and black shoes.  Mr Shortland smashed the electronic doorbell from the wall using the hammer.  He forced open the flyscreen door and kicked the wooden door causing damage.

5Continuing with Mr Rogers’ evidence, he stated that he jumped up and tried to hold the door closed by sitting on the floor with his back against it and his feet up against a chair. He heard someone say quite aggressively ‘If you don’t open up, they’ll shoot me or something’.[2] 

[2] Ibid, page 72

6Eventually the two of you got into the house, as Mr Lual pulled the door open. Mr Rogers described the men as a guy with tattoos and another ‘stocky guy’ alleged to be you.  He further states he was ‘grubby looking.  He looked like he was on something, ‘cause he was jittery.  He was just yeah just odd.  Very odd’.[3] This description is generally consistent with the appearance of the man captured on the footage.

[3] Ibid, page 73-74

7Mr Rogers then stated that things happened quickly, ‘I don’t know whether I was kicked or punched in the stomach. I remember something hit me in the stomach.’  He was not able to say which of the men hit or kicked him[4] and the prosecution’s case was put on the basis that it was either you or Mr Shortland.   Then he was told to sit down, and ‘they started shouting abuse’[5].  It was mainly the other man ‘with the tattoos who was shouting the abuse’.[6]  Mr Rogers confirmed in cross-examination that the other man – alleged to be you – didn’t say anything.[7]

[4] Ibid, page 74

[5] Ibid page 74

[6] Ibid page 75

[7] Ibid page 82

8According to Mr Rogers, at the time this was happening, Mr Lual was looking around, rummaging through and collecting his stuff, including nice watches.  The other two men went down the corridor.  When they did this Mr Rogers managed to get out of there.  He then called Triple 0.  He did not see the two men again but saw Mr Lual running down the road with his stuff in his arms.[8] Mr Rogers gave evidence that when he returned home, a lot of stuff had been stolen, including his wallet, watches and phones.[9]  In cross-examination it was put to Mr Rogers that he never saw Mr Lual leaving with things in his arms, and he disagreed.[10]

[8] Ibid, page 76

[9] Ibid, page 76

[10]Ibid, page 113

9Police attended the premises. Prior to doing so they tried to contact Mr Rogers’ phone. The phone was answered, and police heard multiple voices speaking amidst background music.  Police asked if Julian (meaning Mr Rogers) was there, and an unknown male yelled ‘I hope you are tracking this phone’, followed by ‘that cunts are fucking pedophile and he’s dealing drugs to kids’, and ‘he’s a dead man, you hear me.’

10Police located items stolen from Mr Rogers’ home on the corner of Stenocarpus Drive and Chestnut Road in Doveton, and scattered across the footpath outside Chestnut Road. 

11Police examined the front door of Mr Rogers' home and were able to develop a partial handprint which was identified as your left palm print. 

12As already noted, CCTV footage was also obtained by the police and in your trial the prosecution relied upon, for comparative purposes, this footage and a photograph taken of you on the date of your arrest, being 17 March 2022. 

13The trial proceeded in September 2023 with Mr Lual, who was acquitted of the charges.

INDICTMENT N10528887

14In respect of the Plea indictment, at about 5.00 am on 17 March 2022, police were tasked to attend a McDonalds on Camms Road in Cranbourne in response to a male losing consciousness while driving a white Holden Commodore Ute through the McDonalds drive-through.

15Police arrived and observed the Commodore at the service window of the drive-through with its engine still running. You were unconscious in the driver’s seat. You regained consciousness and police helped you out of the vehicle. You told police that you had taken ‘juice’, that is GHB, and 1,4-Butanediol. You were checked by paramedics.  Police returned to your vehicle to find identification. They located a satchel bag on the passenger side of the vehicle which contained ammunition and drug paraphernalia.  A further search of the vehicle found a red shotgun cartridge and a snap lock bag containing methylamphetamine in a satchel bag on the front passenger seat. Behind the driver’s seat was a black bag which contained a sawn-off shotgun loaded with a single shotgun cartridge, a small homemade handgun, loaded with a .22 caliber cartridge, a sunglasses case containing 15 small red shotgun cartridges and three large shotgun cartridges.

16You were taken to Dandenong Hospital for observation as it was suspected that you had overdosed on drugs. You were then discharged, arrested and interviewed. At this stage you were also arrested and interviewed for the earlier offending involving Mr Rogers. 

17The firearms were examined by an expert. The barrel of the shotgun had been sawn off and its timber butt stock had also been shortened and shaped to form a pistol grip.  The grip had been covered with adhesive tape. It was able to be discharged.   

18The home-made gun was 11.2 centimetres long. It could not be discharged as it had a weak main spring. If this was replaced, it would be capable of discharge. There were partly burnt grains of propellant visible in the bore.

19You were a ’prohibited person’ at the time you were in possession of the firearms.

Gravity of offending

20Home invasion is an inherently serious offence, and, as has been stated before, it is ‘a particularly nasty form of criminal conduct’.[11]

[11] Hogarth v The Queen, [2021] VSCA 302.

21The prosecution submit that this was a serious example of the offence of home invasion.  In company with Mr Shortland, you forced your way into Mr Rogers’ home in the early hours of the morning, knowing that he, Mr Shortland, was in possession of a weapon.  The prosecution submits that Mr Rogers was ‘subjected to fear, intimidation and violence in the sanctuary of his own home. The sentence imposed must give full expression to the principles of general deterrence.’ 

22Your counsel submits that your offending falls within the low-mid range of seriousness. The offending was of relatively brief duration. There was no attempt at disguise or concealment and there is no evidence of pre-meditation or pre-planning on your part. Your counsel also submitted that for the purposes of the plea hearing your role in the home invasion can be distinguished from that of Mr Shortland. She points to the following factors: it is not alleged that you committed any property damage either inside or outside of the home; you entered the property after Mr Shortland and you, yourself, were not in possession of a weapon at any time, noting that this aspect of the charge was put on a complicity basis. There is also no evidence that you spoke to anyone or made any threats. 

23In all the circumstances, the offending is serious, and I accept that it would have been a terrifying experience for Mr Rogers. As the higher courts have stated, ‘general deterrence is a sentencing principle of great importance in cases such as these.[12]’ I accept that there are obviously more serious examples of this offence. There is no evidence of planning on your part, and as properly conceded by the prosecution, there is not a sufficient evidentiary basis to find that your case involves the aggravating feature of vigilante justice.  I also accept that, while complicit, you were not the principal offender or in possession of a weapon. 

[12] Ibid; DPP v O’Brien [2019] VSCA 245.

24The charge of home invasion is a Category 2 offence, thus requiring the court to sentence you to a term of imprisonment unless a relevant exception applies. Your counsel has canvassed the available exceptions, though does not submit that they are met in your case, and on my own assessment I agree. The only available sentence on this charge is one of immediate imprisonment. 

25In respect of the common law assault, on the evidence of Mr Rogers the prosecution were unable to positively allege that you committed the acts.  The charge was put on the basis that either you or Mr Shortland, with you acting on a complicity basis, committed the act.  I note that Mr Rodgers did not seemingly require any medical attention. 

26Also, in respect of the theft, it was not alleged and there is no evidence, that you were the primary offender.  Rather, the theft was put on the basis of complicity.  It was alleged that Mr Lual committed the theft and that you assisted or encouraged him to do so.  As already noted, he was acquitted of all charges at trial. 

27In respect of the firearm matters, they are also serious.  As submitted by the prosecution, the firearms were loaded with live ammunition, unsecured inside your unlocked vehicle, in a public place at a time when you were clearly under the influence of drugs.  The prosecution accepts that the seriousness of the offending on Charge 2 is less than Charge 1, because at the time of the offending that firearm was not capable of discharge as it had a weak main spring. Also, there was no indication, and it is not alleged by the prosecution, that the firearms were actually used in the commission of, or in connection with, or for the purpose of other criminal offending.[13]

[13] Sultan v The King [2022] VSCA 205; Berichon v The Queen [2013] VSCA 319.

28You told Ms Cidoni that during the offending period you were facing challenges in your life, including heavy drug use, unhelpful peers and unstable accommodation. She considers that your actions were influenced by your substance abuse.  You were clearly heavily intoxicated at the time of your arrest.     

Chronology

29The chronology of your case is important and can be briefly outlined as follows. On 6 January 2021 you were sentenced to a drug treatment order (‘DTO’).  On 15 January 2022 the home invasion was committed.  On 17 March 2022, the firearm offences were committed and you were arrested and remanded.  On 11 May 2022, you were sentenced for breaching the drug treatment order to a period of 110 days.  On 24 July 2022 this sentence expired. On 30 August 2022 you were bailed. On 23 December 2022, you were remanded on new offending.  On 21 April 2023, you entered a plea of guilty to those matters and were sentenced to a total of six months imprisonment with 121 days as pre-sentence detention. On 3 May 2023 an application was granted to revoke your bail on the current matters. On 21 June 2023, your sentence expired and your period on remand has continued. Therefore, in recent times you have served two periods, that is two continuous periods on remand, partly referable to these matters. That is 17 March 2022 to 30 August 2022, and 23 December 2022 to the current date of sentence.

Plea of guilty

30As already noted, you were found guilty after trial in respect of the offending on the home invasion indictment. 

31In respect of the matters on the plea indictment, that matter did resolve after a contested committal, but prior to the receipt of the DNA results. While not entered at the earliest opportunity, I do accept that your plea entitles you to an important discount in sentencing.  Your plea has utilitarian value, heightened in accordance with the Worboyes principles, though, as put by the prosecution, to a modest degree[14]. 

[14] Worboyes v The Queen [2021] VSCA 149.

Personal circumstances

32Your personal circumstances, Mr Morin, were canvassed by your counsel and are also canvassed in the psychological material before the court. 

33You are now 33 and you were 31 at the time of the offending.  You were born in Prahran and spent your early years with your mother in Chadstone.  Your parents separated when you were very young and your father lived with his mother.  Your mother is Aboriginal and your maternal grandmother was part of the stolen generation. Your father is from Seychelles.  You identify as Aboriginal and there has been intergenerational trauma experienced on both sides of your family. 

34Your mother grew up in children’s homes.  You describe her as having a temper and as occasionally resorting to physical discipline.  She struggled with substance use, including alcohol, cannabis and other drugs.  You had a stepfather who passed away when you were 19.  You have a younger maternal half-brother who you have occasional contact with.  You also have a half-brother through your father.  I note that at the time of your arrest you were living with your mother and you continue to have ongoing contact with her.

35Your father was abusive towards your mother and you were exposed to and witnessed violence from a young age.  At one point there was an intervention order protecting your mother from your father.  Your father has a history of alcohol, amphetamine and methamphetamine abuse, and, as I understand it, is currently in custody. 

36Your childhood and formative years were therefore marked by an exposure to domestic violence, parental drug use, instability, criminal activity and neglect. Your mother also spent a great deal of time at the pokies.  There were occasions when you were left alone and also occasions when you were forced to leave the house. During these periods you stayed with your grandmother and with friends in Chadstone and Dandenong.  Your grandmother passed away in 2021, which has caused you significant grief given your close relationship with her and her role as a relatively consistent caregiver for you in, as your counsel describes it, an otherwise chaotic childhood. 

37You struggled at school, leaving in Year 10.  You struggled academically and had difficulties with literacy, which persist.  You report a history of behavioural issues, including multiple suspensions and of being bullied. After leaving school you attended TAFE and completed a Certificate II in Automotive Technology and a Certificate in Warehousing, which included a six-month program with work experience.  This experience led to an apprenticeship which you continued for 12 months after completing the program.  You have also had some labouring work.  Your last paid employment was in the automotive industry. Otherwise, you have been in receipt of Centrelink benefits, and for completeness I note that you report suffering from sciatica in your back. 

38At the age of 12 you started to drink and this soon escalated to heavy daily drinking.  At the age of 19 you started using MDMA which became a daily habit, though you have not used that drug now for several years.  You also commenced using cocaine and methylamphetamine, last using on the day of your arrest. You also have a history of using GHB. Your longest period of abstinence was for 13 months when you were on your most recent drug treatment order in 2021. You have participated in drug and alcohol counselling in the past and were previously on the methadone program. 

39At the age of 19 you were involved in a serious motorcycle accident. Since that time you have never felt the same and you have struggled with short-term memory.  You believe that you were diagnosed with an acquired brain injury.    

40In terms of relationships, you have had several of a long-term nature, including with Serena when you were aged 25 to 31.  You have a daughter together, born in July 2021.  Drug use and legal issues affected the relationship which ultimately ended.  Despite your separation, Serena largely has remained supportive of you and it seems that you have generally maintained regular contact with your daughter.    

41Ms Cidoni opines that your ‘background of adverse childhood experiences, including exposure to domestic violence, family substance use, and instability, likely contributed to [your] vulnerability and coping strategies.  These early life experiences may have shaped [your] worldview and influenced [your] behaviour in adulthood, contributing to [your] involvement in criminal activities.’[15]  In sentencing you, I accept your counsel’s submission that the Bugmy principles have application. Adopting the general approach, I accept that your subjective culpability cannot be equated with that of a person who has had the advantage of a stable and regular environment, free of violence, abuse and an exposure to drugs, during their childhood and formative years.[16]: In all the circumstances, including an assessment of the nature and circumstances of the offending, and the nature and severity of your disadvantage and its impact, I accept this is an important mitigating circumstance in determining the appropriate sentence in your case.  Of course, it also raises considerations of community protection.

[15] Psychological Report of Ms.Gina Cidoni, dated 6 October 2023, paragraph 102

[16]Bugmy v The Queen [2021] VSCA 160; DPP v Herrmann [2021] VSCA 160; Marrah v The Queen [2014] VSCA 119; DPP v Drake (2019) VSCA 293.)

42You have a relevant and extensive prior criminal history.  The large majority of your priors relate to driving and drug related matters, although there is also some dishonesty related offending and breaches of court orders.  I note that you have no history for charges of home invasion or burglary, and while there are some priors for possessing weapons, you have never been dealt with for firearm or ammunition offences.  I accept your counsel’s submission that your history is largely consistent with someone who has struggled with substance addiction his entire adult life. 

Psychological assessment

43You were diagnosed, Mr Morin, with attention deficit hyperactivity disorder (ADHD) in childhood. You were not prescribed medication during this time as your mother was against it.  Later in life you were prescribed Dexamphetamine which you took sporadically. You also told Ms Cidoni that you believe that you may have dyslexia. Forensic databases accessed by registered nurse, Gregory Lane, (through Forensicare for the period 2000 and 2001) indicate that you were diagnosed with conduct disorder (unspecified) and receptive language disorder. 

44Since the age of 15 you engaged regularly with Paul Grech, who diagnosed you with depression and anxiety. You also mentioned a possible diagnosis of post- traumatic stress disorder (PTSD). 

45Based on Ms Cidoni’s assessment of you in October 2023, she concluded that your clinical diagnosis included substance use disorder, in remission, co-occurring with ‘an anxiety disorder marked by compulsive features, severe depression, and persisting paranoid ideation.’[17]  She opined that these diagnoses affect your emotional state and coping mechanisms, which in turn influence your actions. 

[17] Report of Ms Cidoni, paragraph 97

46Ms Cidoni considered that based on her neuropsychological screening test, you demonstrated impairments in immediate memory and delayed memory. She recommended further assessment.  She considered that your depression could be related to your tumultuous upbringing, the loss of close relationships and your own struggles with substance use and the origin of your persisting paranoid ideation may be related to substance induced effects.

47Ms Cidoni states, regarding depression and anxiety, that these mental health conditions can further complicate your prison experience[18], and I note that currently you take anti-depressant medication in custody. 

[18] Ibid, paragraph 111

48Subsequently you were assessed by neuropsychologist Mr Martin Jackson.  He assessed your full-scale IQ as 82, which is in the low average range and not significantly different from your estimated premorbid level of functioning. Mr Jackson concluded that you are a man of estimated low average premorbid abilities on the basis of your education history, performances on test that ‘hold up well’ to the effects of brain injury and mental health conditions and your performance on the assessment.[19]

[19] Neuropsychological Report of Dr Martin Jackson, dated 18 April 2024, page 11

49Mr Jackson notes that you were diagnosed as having ADHD, depression, anxiety and conduct disorder as a child. On his testing you had some mild difficulties with multiple task processing which was consistent with a diagnosis of ADHD.[20] He considered that clinically you presented as mildly depressed, although there were no overt signs of anxiety, stress, psychosis or behaviour disorder.[21] 

[20] Ibid, page 17

[21] Ibid, page 13

50Overall, the results of the current neuropsychological assessment identified a memory impairment as your primary cognitive difficulty.  Performances in the extremely low range included: initial learning and delayed recall on most tests and new learning and memory; recognition memory on complex tasks and letter fluency. 

51In contrast, there was no other convincing evidence of an acquired brain injury with most of the cognitive performances being in the low average range or better. The lower than expected performances in some aspects of language in verbal executive function may well be longstanding given your difficulties at school and the requirements of having speech therapy as a child.[22]  From a neuropsychological perspective, Mr Jackson does not consider that treatment is required.[23] Any recommendations for treatment are in the areas of your drug and alcohol use, your mental health and potentially your personality. He also suggests further assessment from a clinical psychologist or psychiatrist with regards to your mental health and also as to whether you have a Cluster B personality disorder. 

[22] Ibid, page 16

[23] Ibid, page 18

52In sentencing you I take into account your personal circumstances and the matters canvassed in the reports as to your low average range functioning and mental health. 

Prospects of rehabilitation

53The prosecution submit, Mr Morin, that your rehabilitative prospects are poor and point to the many rehabilitative opportunities you have had in the past and that you were on the drug treatment order.

54In your assessment with Ms Cidoni you expressed a desire to improve your life and emphasised not wanting to follow in the footsteps of your parents.[24] 

[24] Report of Ms Cidoni, paragraph 15

55Ms Cidoni considers that several risk factors contribute to your elevated risk of re-offending and recommends treatment and counselling, along with cognitive-behavioural therapy to reduce this risk. 

56Your counsel highlights your progress on the most recent drug treatment order.  You spent 13 months on the order and ‘somewhat exceptionally’, it was submitted, did not serve any sanctions, demonstrating extensive periods in which you were abstinent from illicit drugs. You were also placed on CISP in August 2022. You completed the alcohol and drug assessment but had difficulties accessing buprenorphine injections through Monash Health and then obtaining the appropriate dosage. 

57In custody you have remained engaged in programs to improve your employment prospects, including certificates in traffic control, construction pathways and in occupational health and safety.  You have also obtained a Certificate II in skills for work and vocational pathways, Certificate I in Aboriginal and Torres Strait Islander cultural arts and triple P positive parenting, and more recently ice and me and a culturally specific healing program, the Marumali program: Journey of Healing program held over four days at Marngoneet Correctional Centre. You describe this program as intense and I accept that it has assisted you and also helped you connect with culture, which is positive. 

58On your release you are able to reside with a supportive friend who owns their own home in Cranbourne. In custody you have continued to have contact with your mother and your friends and so there will be a network of some support awaiting you in the community. In prison, I further note that you assist with peer support and are employed as an Aboriginal peer support worker.  You want to resume labouring work upon release. You report being supported by a prison-based post release employment service and your goal is to find work as a welder.  Recently you told Mr Lane that in custody you spend your spare time maintaining your fitness levels, exercising, playing football and walking laps. You also complete Aboriginal art works and paintings and have recently sold two paintings through The Torch program. You also indicated that you are motivated to resume psychological counselling with Dr Grech and that your goal on release is to remain sober, owing to how drugs have negatively impacted your life choices and offending behaviours.

59In all the circumstances there is a need for caution in assessing your rehabilitative prospects given, in particular, your criminal history.  However, I do I consider that you have demonstrated an ability to progress your rehabilitation and you currently present as motivated. Your prospects will be enhanced if you engage in, and commit yourself to, a structured period of drug and alcohol counselling and treatment to address your mental health and potential personality issues.   

Parity

60On 27 February 2023 your co-accused, Mr Shortland, was sentenced on charges of home invasion, theft, common law assault and commit indictable offence on bail. He received a total effective sentence of five years’ imprisonment with a non-parole period of three years and two months. The assault alleged against Mr Shortland was in respect of his threat to shoot Mr Rogers and not the physical assault in the home.  The theft charge was put on the basis that ‘the three men who had committed the home invasion then took items from the house’. 

61As I have already noted, your counsel submits that there are a number of circumstances, including your role in the offending and matters personal to you, that distinguish you from Mr Shortland.

62I have been provided with a copy of Judge Maidment’s reasons for sentence. I note that Mr Shortland had an extensive prior criminal history, including a sentence of two years and four months’ imprisonment imposed in 2018 for burglary, theft and criminal damage offences.

63The parity principle requires that there be consistency in the sentences imposed upon co-offenders unless there are such differences in their roles in the offending or their personal circumstances that warrant disparity in their sentences. Ultimately, the court has an overarching duty to impose a just and appropriate sentence in accordance with orthodox principles. As the higher courts have stated, the process of sentencing is not a mechanical exercise in which relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced.[25]

[25] Djukic, at [75] Sikoulabout v The Queen [2018] VSCA 268; Clark v The Queen [2020] VSCA 125).

64In all the circumstances, I consider that it is open to reasonably differentiate between you and Mr Shortland. Mr Shortland entered an early plea of guilty to the charges and was entitled and received a significant sentencing discount, as indicated by the s6AAA declaration. However, while you acted in complicity and you are each liable for what occurred, I consider that his role in the offending was more serious than yours and his moral culpability higher. He was the principal and the more active participant in the home invasion. The fact that he was equipped with a weapon reveals, at least a degree of premeditation on his part, that cannot necessarily be inferred in your case. Also, importantly in his case, Mr Shortland made it clear in a statement that he provided to the police that he was principally motivated by vigilantism, which was an aggravating feature of his offending. Further, I consider that your personal circumstances allow for some differentiation. While he was able to rely on some matters including his extradition and his post-traumatic stress disorder, it appears that his criminal history is more relevant and extensive, and I take into account in your case the application of Bugmy principles and your recent remand and sentence history which invoke totality considerations.    

Sentencing purposes

65The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. 

66I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. I have also considered the general sentencing landscape for the offences, particularly home invasion. I take into account the maximum penalties that apply and the principles of proportionality and parsimony.

67The prosecution submit that the only appropriate sentence in this case is one of imprisonment, with a non-parole period. Your counsel concedes imprisonment is warranted but submits that it is open for the court to consider imposing a sentence of imprisonment on Charge 1 (the home invasion) and a Corrections order in respect of the others. For completeness, I had you assessed for such an order and you were assessed as unsuitable, largely because of your poor compliance with community corrections in the past.  In all the circumstances, Mr Morin, I do not consider that the retributive and deterrent purposes of punishment can be adequately met by a term of imprisonment and a community corrections order.

68I take into account the principle of totality as between the offences charged and the two indictments. The totality principle requires an evaluation of the overall criminality involved in all the offending. In applying this principle, I have also taken into account the intervening sentences that you have served during your current period on remand. 

Sentence

69Synthesising all relevant matters, you are convicted and sentenced as follows:

70On the indictment ending 527, which is the trial indictment:

71Charge 1, home invasion, four years and four months.

72Charge 3, common law assault, 10 months.

73Charge 4, theft, 10 months.

74Charge 1 is the base sentence, and I order that two months on Charge 3 be served cumulatively, which arrives at a total sentence of four years and six months.

75In respect of the plea indictment ending 887, Charge 1, prohibited person,
11 months.

Charge 2, prohibited person, eight months.

Charge 3, possess drug of dependence, two months.

76In respect of the summary charge of possessing ammunition you are convicted and fined $300.

77Orders for cumulation are as follows on this indictment:  Charge 2, two months’ cumulation.

That arrives at a total sentence of 13 months on that plea indictment Charge 1 obviously is the base sentence.

78I direct that six months on that plea indictment, being 887, be served cumulatively on the trial indictment, being 15527, which results therefore in a total effective term of five years’ imprisonment.

79I set a global non-parole period of three years.  I consider this period is the minimum that justice requires you to serve and that it reflects the relevant sentencing principles, including general and specific deterrence, and best promotes your prospects of rehabilitation. 

80Pursuant to s18 I declare that you have served 374 days in custody. 

81I do not intend, counsel, unless either of you wish to make further submissions, to make a s6AAA declaration, it is too difficult given the trial matter and the plea matter.

82Are there any other orders that were sought?

83MS FARRELL:  Yes, Your Honour, there was an order in relation to the guns and the drugs which I understand is not opposed and has been filed.

84HER HONOUR:  Let me just bring those up.  Is that right, Ms Strugnell, unopposed?

85MS STRUGNELL:  Yes, Your Honour, I think I communicated that to your associates.

86HER HONOUR:  So what are they, forfeiture orders?  Just one moment. 

87MS FARRELL:  Yes, Your Honour, a firearm forfeiture order and a disposal order and they were filed and served in October of last year. 

88HER HONOUR:  Thank you.  Just give me one moment, I’m just going to bring them up and then I will make the orders in the terms sought if they are unopposed.  Ms Strugnell, I can give you a couple of minutes once we rise to speak to Mr Morin.

89MS STRUGNELL:  Thank you, Your Honour.  Your Honour, if I might just briefly indicate for Mr Morin’s benefit - - - 

90HER HONOUR:  Yes.

91MS STRUGNELL:  I have just received - - - 

92HER HONOUR:  Sorry?

93MS STRUGNELL:  Just prior to Your Honour coming on the bench there was confirmation of his participation in the Ice and Me program that I have received, further information - - - 

94HER HONOUR:  I think I referred to that.  I accepted what you submitted.

95MS STRUGNELL:  And Changing Gears, but that unfortunately arrived whilst Your Honour was giving sentence.

96HER HONOUR:  I can assure you, Ms Strugnell, and your client, that – and you heard what I said about his rehabilitative prospects - - - 

97MS STRUGNELL:  Yes.

98HER HONOUR:  It reflects very well on him, and I accept that he’s participated in all of these intensive courses.

99MS STRUGNELL:  Yes, it’s largely for Mr Morin’s benefit.

100HER HONOUR:  I see.

101MS STRUGNELL:  Thank you, Your Honour. 

102HER HONOUR:  So forfeiture order – yes, I see that – and I’ll just bring up the other one.  And disposal order.  Yes, I have both of those.

103MS STRUGNELL:  They are not opposed, Your Honour.

104HER HONOUR:  And I will make them in the terms sought.  Anything further, counsel?

105MS FARRELL:  No, Your Honour. 

106MS STRUGNELL:  Nothing further.

107HER HONOUR:  Mr Morin, just remain where you are.  Give a moment for the prosecution to leave court so that you can speak to Ms Strugnell.  You have heard the sentence, overall, I have sentenced you to five years’ imprisonment, three years on the bottom, and I have taken away the time that you have served.  You will have an opportunity to speak to your counsel, no doubt she will speak to you again further at a later stage.  Thank you.  Thank you, counsel.

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