Director of Public Prosecutions v Morrison

[2016] VCC 298

Pages 1 - 13   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted  Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01283

DIRECTOR OF PUBLIC PROSECUTIONS

v

BELINDA MORRISON

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2016
DATE OF SENTENCE:	17 March 2016
CASE MAY BE CITED AS:	DPP v Morrison
MEDIUM NEUTRAL CITATION:	[2016] VCC 298

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Guesdon	OPP
For the Accused	Mr S Petrovich	Tyler Tipping Woods

HIS HONOUR:

1Belinda Morrison, on 24 November 2015 you pleaded guilty to Charge 1, aggravated burglary.  This charge has a maximum penalty of 25 years' imprisonment. Charge 2, common law assault.  This charge has a maximum penalty of five years' imprisonment.

2The plea hearing was adjourned to 9 December 2015 originally, to allow for the preparation of the psychologist's report and other matters relevant to the proper consideration of other plea material on your behalf. A report from Dr Aaron Cunningham, forensic psychologist, dated 2 December 2015 was Exhibit 1 on the plea.

3On 14 December 2015, which was the second plea date, a further request was made for a Forensicare report. I made that order. You have been in custody since that time.

4I will turn to the circumstances of the offending.  The prosecution tendered a document entitled, "Amended summary of prosecution opening for the plea" dated 8 December 2015.  This was Exhibit A on the plea.

5The background of this offending is that your co-accused Diaz and your victim Gates had been involved in a failed transaction over illegal drug dealing.  Diaz had allegedly lost between $2000- $3000.  You joined with Jade Allen and Ms Diaz in a raid to confront Ms Gates at a property on Riggall Road in Traralgon.

6You and Kevin Hartley were close friends and you had attended at the property on Riggall Road on numerous occasions prior to the alleged offences.  You knew the venue and the layout of the house.

7In the early hours of 23 March 2013, a witness Martin Costello states he rode his bicycle past Riggall Road and observed some activity outside the property at Riggall Road.  Costello was a friend of yours and had been at your home during that evening.

8He states he observed a blue Ford station wagon parked outside Kevin Hartley's house and phoned you to inform you of that fact.

9Phone records show that Costello phoned you at approximately 12.07 am.  Phone records show that Costello phoned you again at 4.28 am and then you contacted each other a number of times up until 5.08 am.

10There were also a number of text exchanges between yourself and Kevin Hartley between 4.29 am and 6:00 am, in which you were ostensibly checking Hartley's welfare.

11The blue Ford station wagon belonged to an associate of Joshua Hartley who had arrived at about 4:00 am.  Hartley and Gates had been sitting in the car talking with their associate.  At one time they briefly drove to Foodies to purchase some drinks and returned to the property at Riggall Road.  The associate left to go to work about 5:00 am and Hartley and Gates went inside to go to bed.

12You, Allen and Diaz, together with an unknown female, then arrived at the property at Riggall Road in Diaz's car, a white Ford Territory.  The white Ford Territory parked at the northern end of the road and you walked to the address.

13Costello was still present standing out the front of the address.  You entered the house and spoke to Kevin Hartley under the guise that you were checking on his welfare.  Gates and Hartley junior were asleep in bed and were woken by the noise and the discussion in the house.

14You then went to Joshua Hartley's bedroom door and opened it.  You did this to confirm the presence of Gates.  Gates and Hartley saw you, and Hartley told you to shut the door.

15You shut the door and left the house.  You returned to Diaz's car.  Costello heard one of the women yell out, "Is the bitch there, here".  You said that Kevin's son was there and said, "Let's go".  The women then drove away.

16Costello followed you on his bicycle.  You continued to text Kevin Hartley.  You did this in order to cement your story that you were checking on his welfare and conceal the true reason of your inspecting the house which was to check the presence of Gates.

17At 5.58 am, Kevin Hartley texts you to say, "I'm off to work.  The boy had nowhere to go last night and yes, I think that is Carli".  He then texts you, "She wasn't there when I went to bed".

18Kevin Hartley then left the house to go to work.  He left the backdoor unlocked which was his usual practice.  Due to your close relationship with Hartley, you were aware of that practice.

19You, Diaz, Allen and the unidentified female, returned the property at Riggall Road at about 6.15 am.  You, Allen and Diaz entered the house via the backdoor.  You were in possession of a bat and Allen was in possession of a knife.  The unidentified female stayed in the Territory motor vehicle.

20The three women entered the house pursuant to joint criminal enterprise to assault Gates.  That is the aggravated burglary charge.

21Once in the house, the three of you went into Gates' and Hartley's bedroom where they were asleep.  Gates and Hartley were woken by Diaz placing a hand over Gates' mouth and Allen holding the knife to Hartley's throat.  You were standing beside Diaz with the bat in your hand.

22You punched Gates in the head a number of times whilst she was being held down.  Gates was also struck to the body with a bat to get her to get up.  Diaz demanded that Gates get out of bed and get dressed.  Gates was yelling and screaming.  That is the common law assault charge.

23Allen threatened Gates and Hartley with the knife stating, "Shut the fuck up.  If you don't, I'll kill you and stab you".  Hartley and Gates were then pulled out of bed onto their feet.  Hartley was escorted from the house by Allen who was holding the knife to his body.

24Whilst doing so, Allen demanded the keys to Hartley's car and his wallet.  Allen found the keys and marched Hartley to his car which was parked in the driveway.  The unidentified female was standing next to Hartley's car.  Allen put Hartley into his car, handed the knife to the female and said, "Watch him while I sort this out".  Allen then ran back into the house.

25Both Hartley and Gates escaped from the four of you after they had been separately taken from the house.  Gates declined to seek medical treatment as a result of the assault.  Gates has suffered the following injuries:  bruising and swelling to the head and jaw; cuts and abrasions to her back and a lump to the right shin.

26Neither Gates nor Joshua Hartley have filed victim impact statements in this case.

27On 23 March 2013, you were arrested at your home in Traralgon and you were taken to the Morwell Police Station where you were interviewed.  At the time of the interview, you denied any involvement in the alleged offences.

28You stated that you had attended Riggall Road by bicycle sometime between 1:00 am and 2:00 am with Costello.  You went inside to see Kevin and just thought to have a look in the middle room to see if Josh was there.  You stated you did not see if Carli Gates was there.

29You stated that you then returned home with Costello by bicycle at 2:00 am.  You said at about 6:00 am, you were in bed asleep.  You do not really know Cindy Gates, however then said you did have phone contact with her at ten or 11 last night.  That you often talk and ring each other and that Cindy had been over the previous afternoon.

30You conducted a committal hearing in July 2014.  You were committed for trial which was ultimately listed for a hearing at the commencement of the circuit in the La Trobe Valley in November-December last year.

31After some negotiation, you pleaded guilty to aggravated burglary and common law assault on the first day of the trial.  That was 24 November 2015.

32The matter was then adjourned for plea hearing on 9 December 2015.  Your bail was continued until that date. The phycologist report and other relevant materials were to be obtained for the plea hearing.

33On 9 December 2015, due to the ingestion of some substance or alcohol, you were unable to engage properly with your counsel to facilitate the proper conduct of your plea on that date.  You were then remanded in custody until 14 December 2015 for the plea.  I heard the plea on that day.

34As I have said earlier, I ordered the Foreniscare report on that day.

PERSONAL CIRCUMSTANCES

35You are now 41 years old.  You have four children aged between 23 and eight.  Each of your children have a different father.

36You were raised by your father.  Your mother left the family home when you were six years old.  You have a younger brother.  You were educated at Glossodia Public School and attended Hawksbury High School to Year 9 level.

37You left school that year and worked for a short time in a bakery.

38You left home at the age of 17 and lived with your partner Michael, the father of your eldest child for some seven to eight years.  You left that relationship due to infidelity on his part.

39You had a short relationship with Darren which resulted in the birth of your second child.

40You then had a two year relationship with Jason.  Jason was an extremely violent person and that relationship ended after you escaped to a refuge in Sydney and then relocated to Melbourne.

41Your third child resulted from another brief relationship with a man in Phillip Island, Victoria.

42You then moved to Traralgon and commenced a five year relationship with Wade.  He is the father of your fourth and youngest child who has developmental difficulties which are referred to in the most recent letters.

43You are currently in a relationship with another Michael, who is a former drug user.  You have had stable housing in Morwell.  You act as your mother's carer.  Your main occupation, in your adult life, has been a home and domestic carer.

44You have been a user of cannabis and have had some use of amphetamines and methamphetamine in the past.

45You have lived a troubled and a disruptive life which has left you in a constant state of stress and anxiety about the uncertainties in your life.

46Along the journey of your life, you have been both an offender and a victim of offending by others.  Given your history, there is little surprise in the finding by Dr Cunningham that you have significant symptoms of anxiety and panic.

47You are currently prescribed two Valium tablets for your anxiety.  A report from the La Trobe Medical Centre dated 11 February 2015 sets out that you have Hepatitis C which you have contracted as a result of intravenous drug use.

48The medical report sets out how concerned you are over this court case and that it causes you to have a stressful life.  The three medical reports, two from
Dr Cunningham and one from Dr Zafar, your general practitioner, do not set out any psychological or psychiatric condition which requires intervention of a psychiatrist.

49The summary of the findings is that you are an anxious and stressed person as a result of your lifestyle.

50The summary of your present life is that you have four children, receive a carer's pension for looking after your disabled and obese mother and are in a relationship with Michael for the past two years.  You have lived a sad life and the offending in this case will do nothing to improve that position.

SENTENCING CONSIDERATIONS

51OFFENDER:  Excuse me a minute.  Can I say something?  I'm not with Michael Casey.  We were only very, very good friends.  We weren't in a relationship, sir.  I was his carer.

52HIS HONOUR:  You were his carer?

53OFFENDER:  Yeah, I was his carer because his (indistinct) brain surgery and he ‑ ‑ ‑

54HIS HONOUR:  I will now continue Ms Morrison.

55OFFENDER:  Thank you.

56HIS HONOUR:  I previously sentenced your co-accused Lamere Diaz and Jade Allen in the aggravated burglary charge.  In Ms Diaz's case, she was sentenced to a further five charges.

57In Ms Allen's case, she was sentenced on a further four charges.  You by contrast are to be sentenced on one additional charge from the aggravated burglary.

58One of the considerations in sentencing you is the parity principle.  That principle is based on the notion of equal justice and the need for consistency in sentencing.

59It is to be applied in cases where there are true co-offenders.  In this case, Ms Diaz and Ms Allen are your true co-offenders.

60Of course, allowances are to be made for the different circumstances of the offender or the different degrees of culpability in the offending itself.

61In your case, you are the person who knew the people at the premises where the aggravated burglary took place.  You were the person who conducted the reconnaissance on the premises to check the intended target was at the premises.  You were the person who knew the movements, that is the true time of going to work, of Mr Hartley senior and the other people in the targeted premises.

62In this regard, your treachery and betrayal of Kevin Hartley is an indicator of your level of culpability in this offence.  You facilitated the case of the raid on Hartley's premises because you knew the movements of the people and the layout of the house.

63On the other hand, the motivation for the raid came from Ms Diaz who had a failed drug deal with Ms Gates and Ms Diaz, was going to exact some ill-defined revenge or recompense from Ms Gates from this criminal activity.  You joined in this criminal activity.

64It was put on your behalf that your motivation was a misguided loyalty to Kevin Hartley and the co-accused.  Loyalty to Kevin Hartley arose because Joshua Hartley and Ms Gates were drug addicts and taking advantage of him.  Loyalty to the co-accused was said to be because you were asked by them to help them.  Neither of these loyalties reduce your culpability.

65The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community.

66In sentencing you, I must have regard to a range of factors such as the seriousness of your offences, your culpability for them, your personal circumstances and those of the victims Carli Gates and Joshua Hartley.

67I am required to balance the interests of the community and denounce your criminal conduct with the interests of the community, in seeking to ensure as far as possible, you as an offender, are rehabilitated and reintegrated into society.

68Neither victims of your offending have filed Victim Impact Statements.  So specific issues in relation to either of them are not before me.

69Gates did suffer some injuries of swelling to the head, cuts and abrasions to her back and a large lump on her right shin.  Mr Hartley was said to have received cuts to his hands.

70You have pleaded guilty to these charges.  The pleas were indicated at the commencement of the trial.  Your pleas have a utilitarian value allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantiative issues raised by your offending.

71Your plea of guilty was at a late stage in comparison with your co-accused Diaz and Allen.

72Your pleas allowed for the preservation of court and police resources to deal with other matters.  Your pleas have indicated the public confidence in the legal process set up to protect the community.  You have by your pleas, relieved the victims Gates and Hartley from giving evidence against you.  It facilitates some closure for them as victims of your offending.

73Your pleas are also a clear acknowledgement by you that you accept your responsibility for your criminal activity and behaviour in this case.  Your pleas also recognise you are willing to facilitate the course of justice in the community.

74I accept that your pleas of guilty to these charges indicate and demonstrate some remorse on your part and I note in your most recent letter, you set out that you are remorseful for your conduct.

75The main offending in this case is the aggravated burglary charge.  The aggravating features are to be listed:

a)    There is surveillance and planning to ensure that the target of the attention, Ms Gates, was actually at the address at the time;

b)    The organisation of having four people in the raiding party as I have described it, three inside the premises and one in the getaway car;

c)    The motivation of payback for a previous drug deal gone wrong.  This is a confrontational aggravated burglary with a level of vigilantism involved in it;

d)    The invasion of the premises in the dark in getting the victims at their most vulnerable time whilst still asleep in their bed;

e)    Taking weapons.  In your particular case, with a bat, but there were other weapons and a knife there showing planning and intent;

f)     Invasion is of a home where people are entitled to feel safe and protected.

76Three people entered the house.  That is you, Allen and Diaz.  Each of you were on a joint mission either to assault or steal from the occupants or both.  You entered the home and you were present when both of them were dragged out of bed, you have threatened them, you have assaulted Gates.  The co-accused were there with you in the house.

77Gates and Hartley junior made good their escape from you.

78The only way to describe this criminal activity is that it was outrageous criminal behaviour.

79You have an extensive criminal history stretching back to 1992.  Your first court appearance for violent offending was in 1994.  Your other offending related to drugs and dishonesty up until 2003.

80In 2004, in Korumburra in Gippsland and later in the La Trobe Valley Court, you have had eight separate court appearances for violent offending prior to these offences.

81You have been fined and been given community based punishments in the past.  These dispositions did not act as any deterrent to you in March 2013.

82Dr Cunningham has diagnosed you as suffering from post-traumatic stress disorder which he says stems from a lack of support and connection in your family home.  He states that your PTSD condition was precipitated by domestic violence visited upon you by your ex-partner Jason.

83I have taken into account the extra hardship that a term of imprisonment will have upon you due to your PTSD symptoms when fixing your sentence.  I also take into account the difficulty you will face because you will be separated from your children over that same time.

84I note that in his first report dated 29 January 2014, Dr Cunningham did not diagnose you as suffering from PTSD.  He assessed you as significantly distressed with symptoms of anxiety and panic.

85The La Trobe Medical Centre report dated 11 February 2015 which is Exhibit 4, sets out that you suffer from anxiety and have been prescribed 5 ml of Valium per day.

86Mr Petrovich on your behalf urged the court to order a Foreniscare report to obtain a fuller analysis of your psychiatric and psychological condition.  As I have said earlier, I ordered such a report and adjourned the matter for the further plea and sentence, originally to be on 22 February 2016.  The report was not ready by that time, so the sentence was adjourned until this date.

87The Foreniscare report dated 11 March 2016 is Exhibit 5 and prepared by
Dr Hemlata Ranga, a psychiatrist.  Dr Ranga noted that you were highly distressed throughout the interview with her.  She formed the opinion that you did not have an active major psychiatric disorder.  She was unable to confirm the diagnosis of PTSD made by Dr Cunningham.

88There is no credible evidence to support the proposition that your mental health is worse than Dr Cunningham's diagnosis.  I also have to take into account the totality principle when sentencing you, so that the sentence is not a crushing one.

89I am required to take into account current sentencing practices.  Of course, each offence is different from other offences so comparisons are difficult to make between cases.

90In this instance, each of your co-accused have been sentenced and exercised their right to appeal sentences imposed on them by me in October 2014.  Those sentences are the most appropriate guide to the current sentencing practices for the purpose of your sentence.

91I accept that your imprisonment will result in additional hardship on you and particularly your children and your younger children.  I do not accept the hardship on your children will be exceptional to the extent where the sentencing court, is required to exercise mercy because of it.

92Your mother's ill health is also another factor I have considered and I am not satisfied that factor amounts to exceptional or extreme circumstances, particularly when the gravity of the crime is in this case, is taken into account.

93On Charge 1, you are convicted and sentenced to four years' imprisonment.

94On Charge 2, you are convicted and sentenced to one year imprisonment.

95I order that six months of Charge 2 to be served cumulatively upon Charge 1.  That is a total effective sentence of four and half years imprisonment.

96I order that a non-parole period of three years be imposed.

97I declare that you have served 103 days pre-sentence detention which will be deducted administratively from your sentence.

98Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to six and a half years' imprisonment with a minimum of five years' imprisonment.

99I have signed an order for a s.464ZF which is a forensic sample order.  I will explain that to you.

100The authorities can take a forensic sample from you by taking a scraping from the inside of your mouth.  If you do not comply with that, they are authorised to use reasonable force to obtain it.  Do you understand that?  Yes.

101The reasons I have made the order, in terms of forensic sample, is the seriousness and circumstances of the offence, your prior convictions and that this order is in the interest of the public.

102Is there anything else?

103MS GUESDON:  No, Your Honour.

104MR PETROVICH:  No, Your Honour.

105HIS HONOUR:  Thank you.

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