Director of Public Prosecutions v Morin
[2018] VCC 1555
•21 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01121
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BERTRAM MORIN |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2018 | |
DATE OF SENTENCE: | 21 September 2018 | |
CASE MAY BE CITED AS: | DPP v Morin | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1555 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trial – Sentence – Make threat to kill – Causing injury recklessly – Prohibited person possess a firearm – False imprisonment – Possession of a drug of dependence – Cannabis L. – Plea of guilty in respect of possession of drug of dependence.
Legislation Cited: Sentencing Act 1991
Sentence: 7 years’ imprisonment with a non-parole period of 5 years’ imprisonment; 109 days pre-sentence detention; 6AAA declaration: 6 months imprisonment; Disposal and Forfeiture orders.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | Office of Public Prosecutions |
| For the Accused | Mr G. Chisholm | Melinda Walker |
HIS HONOUR:
1 Bertram Morin, after a trial lasting eight days, a jury convicted you of make threat to kill (Charge 1), causing injury recklessly (Charge 3), prohibited person possess a firearm (Charge 4), and false imprisonment (Charge 5).
2 The maximum penalty for Charges 1, 4 and 5 is ten years’ imprisonment, and for Charge 3, five years’ imprisonment.
3 Your plea was heard on 27 July 2018, and on that day, you pleaded guilty to Indictment G11884109B, containing one charge of possession of a drug of dependence, namely cannabis L. The amount of cannabis found in your possession was 297.8 grams (see Exhibit B) and in your circumstances, the maximum penalty for this offence is five years’ imprisonment.
4 You admitted your criminal record which includes 14 prior convictions for acts of violence, four prior convictions for possess or use prohibited weapon, and one prior conviction for prohibited person possessing a firearm.
5
The facts that support your conviction by the jury can be briefly stated. On
26 June 2015, your victim, Mr Brian Holloway, was visiting friends in Springvale. Mr Holloway intended to visit a friend, Tammy Deas, however, she was not at home, but another female friend, Bianca Farrer (known to Mr Holloway as Bee), and her mother were.
6
Mr Holloway had been at the address in Springvale for about 20 minutes when you knocked on the door and entered the unit carrying a sawn-off shotgun, (Charge 4). You said to Mr Holloway that you had been looking for him for a long time. Mr Holloway got up from the chair in which he was seated and tried to walk out the front door. However, you struck him with the shotgun, injuring him. (Charge 3. See Exhibit C on the trial). You grabbed your victim around the neck, put the sawn-off shotgun to the back of Mr Holloway’s neck and said “Make a move, I will blow your fucking head off”, (Charge 1). You dragged
Mr Holloway out of the unit and towards a white twin cab utility. You tried to put Mr Holloway in the back of the utility, but he resisted you. Eventually, you grabbed him by the testicles and forced him into the rear of the car, (Charge 5). Immediately prior to performing this act, you said “I got you, you bastard. I’m taking you up the fucking bush and fucking putting your life out. Going to blow your fucking head off”, (Charge 1).
7 Despite there being an unidentified male in the front passenger seat of the twin cab utility, Mr Holloway managed to make his way between the two front seats and exit the car via the open driver’s door. The unknown male attempted to stop Mr Holloway, who lost a shoe and his hearing aid during his escape.
8 Mr Holloway went directly to the Springvale Police Station where he reported the incident.
9 You were interviewed under caution on 27 June 2015 at 2.43pm. You denied any involvement in the incident in the following terms: “What would I do that to fucking that old bastard?”. (See Question and Answer 190). You told police that you were in Prahran with a friend Mr Crino at the relevant time.
10 At your trial, you ran the defence of alibi, calling Mr Ugo Crino who swore that at the relevant time you were with him in Prahran. Mr Crino’s evidence was disbelieved by the jury beyond reasonable doubt. In my view this was justified by the evidence of Mr Holloway and the circumstantial case mounted against you.
11 In respect to the plea indictment, police executed a warrant at your address in Kirkham Road, Dandenong, and there seized articles of clothing relevant to the trial, as well as the cannabis that founds the count on the plea Indictment.
12 Tendered as Exhibit A on the plea, was the victim impact statement of Mr Brian Holloway. Mr Holloway is a frail man of 77 years, who was 74 at the time of the commission of your offences against him. Your conduct has resulted in his life being changed. He lives in constant fear for his life. He deposed in his victim impact statement that he had to move house because his previous address was known to you. He is emotionally unstable and cries at the drop of a hat. He does not sleep well at night. He regards himself as isolated from the community. On an occasion prior to trial, he came across you in Dandenong and the mere sight of you placed him into a panic, which lasted for a number of days and ultimately resulted in him being admitted into a hospital psychiatric ward. In summary, Mr Holloway lives in a constant state of fear and specifically is fearful of you and what you might do to him in the future.
13
Mr Morin, you are 47 years of age and came to Australia in 1976 with your mother and five siblings from the Seychelles. Your biological father,
Evans Payet, was unable to accompany your family to Australia because of his involvement in the political unrest in the Seychelles.
14 By way of background, your mother married Mr Morin in the Seychelles, but he left her and migrated to Australia. Your mother remained in the Seychelles and formed a relationship with your father, Mr Payet.
15 When your family arrived in Australia, your mother took up again with Mr Morin. This relationship was relatively short lived because of Mr Morin’s propensity for domestic violence that was directed both towards your mother and yourself.
16 You did not undertake any schooling in the Seychelles. When you arrived in Australia, you could speak only Creole. You attended St Joseph’s primary school, Malvern to Year 6 and initially you were reliant upon your brother at primary school because he learnt English quickly. You later attended Windsor Technical School to Year 9 and using the current parlance, you were “asked to leave” because you were disruptive and you were advised that it was better for you to get a job at the end of Year 9.
17 You have generally worked as an unskilled labourer. You have worked on building sites and your lengthiest period of employment was for four years with Skilled Communications laying cables for Optus. You have not worked for about 10 years. At the time of your trial, you were in receipt of a carer’s allowance from Centrelink, as you were your mother’s carer as she is 83 years of age and in ill health.
18 Tendered on your behalf, as Exhibits 2 and 3, were reports from Dr Calvin, psychiatrist, dated 13 June 2018 and a report from Ms Cidoni and an addendum dated 24 July 2018. Dr Calvin saw you on 8 June 2018, some four days after you had been remanded in custody. You reported some odd ideas about UFOs in the sky to him. You appeared to Dr Calvin to be struggling with the stress of prison. You reported to Dr Calvin that you had been diagnosed with schizophrenia about eight years previously and at that time, you were prescribed the antipsychotic Quetiapine. You were unable to articulate any pervasive psychotic symptoms. You described long standing low mood that gets worse during times of stress and you were prescribed Escitalopram, some six or seven years ago and you continue to take this medication. You described to Dr Calvin a longstanding pattern of illicit drug use. You instructed Dr Calvin that you had commenced using amphetamines and marijuana at a young age and that you have been addicted to the drugs and have used them daily for the past 15 years.
19 Dr Calvin opined that you displayed depressive symptoms secondary to stress and amphetamine and cannabis dependence. Dr Calvin was unable to ascertain the presence of any psychotic illness like schizophrenia. Dr Calvin was of the opinion that it was likely that your fleeting hallucinations were due to illicit drug use.
20 Ms Cidoni conducted a number of tests on you to assess your intelligence. This testing was indicative of low-average capacity with a full IQ scale of 69, placing you at the second percentile, meaning that 98 per cent of your age-related peers would do better.
21 During the course of your consultation with Ms Cidoni, which occurred some six weeks after the assessment made by Dr Calvin, you vocalised odd thinking and expressed some delusional thoughts. You instructed Ms Cidoni that you were admitted to the psychiatric ward at the Dandenong Hospital in 1999 and that you were diagnosed by psychiatrists over the years with schizophrenia and depression. When Ms Cidoni conferred with you, you were in the mental health unit at the Metropolitan Remand Centre. You reported to Ms Cidoni that you had from time to time been prescribed Xanax, Valium, Lyrica and Celebrex, as well as Seroquel and Lexapro, the last two medications being an antipsychotic and an antidepressant respectively. You demonstrated symptoms of psychosis and depressed mood as well as anxiety.
22 In her addendum, Ms Cidoni notes that drug-induced psychosis can occur while using illicit substances and can persist after substance abuse has ceased.
23 Tendered as Exhibit 4 were references from Mr Patrick Veszpremi and your mother, Madeleine Morin. Mr Veszpremi in particular writes of the importance of your relationship with your son Trae, and each acknowledge that your record is “not the best”. Tendered as Exhibit 5 were a number of certificates relating to courses that you have undertaken whilst in prison, you appear to be making the best of your time whilst in prison.
24 You are a man of limited intellect. However, you have a long and persistent history of committing crimes, including crimes of violence and weapons offences. The crimes of which you have been found guilty are serious examples of crimes of the kind. Whilst armed with a sawn-off shotgun, being a prohibited person, you entered a private address and assaulted a frail old man and threatened to kill him and falsely imprisoned him and stated purpose that you were going to take him into the bush and kill him. What your true intention was is unknown. However, plainly, you put the fear of death into the heart of your victim. I regard protection of the community from you as being a relevant sentencing factor in the exercise of my sentencing discretion. You are a person who needs to be specifically deterred from further offending. The principle of general deterrence applies to you, but must be moderated to some extent because of your limited intellect. I regard your prospects for rehabilitation as bleak.
25 Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the aims of sentencing, in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1 – four years’ imprisonment;
On Charge 3 – two years’ imprisonment;
On Charge 4 – 18 months’ imprisonment; and
On Charge 5 – four years’ imprisonment.
26 I order that 12 months of each of the sentences imposed on Charges 3, 4 and 5, be served cumulatively upon each other and upon the sentence imposed on Charge 1.
27 In respect to the charge of possess a drug of dependence, you are convicted and sentenced to three months’ imprisonment.
28 This results in a total effective sentence of seven years’ imprisonment and I fix a period of five years’ imprisonment, that you must serve before you will become eligible for parole.
29 I declare that you have spent 109 days by way of pre‑sentence detention.
30 I declare that but for your plea of guilty to the charge of possess a drug of dependence, I would have sentenced you to six month’s imprisonment. No 464ZF?
31 MS MARGARONIS: No, he's already been profiled, Your Honour.
32 HIS HONOUR: The Crown have made application in respect of a number of forfeiture and disposal orders in respect to matters that were seized by police pursuant to warrant. I have signed those orders and I hand down three copies of each. Is there anything else?
33 MS MARGARONIS: Those are the matters.
34 HIS HONOUR: Thank you very much. Mr Chisholm, I want to thank you for your assistance during the course of the trial and the plea.
35 MR CHISHOLM: Yes, Your Honour.
36 HIS HONOUR: Remove the prisoner please.
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