Director of Public Prosecutions v Morton
[2022] VCC 1159
•25 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02421
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD MORTON |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2022 | |
DATE OF SENTENCE: | 25 July 2022 | |
CASE MAY BE CITED AS: | DPP v MORTON | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1159 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Make threats to kill – Attempted kidnapping – Causing Injury Recklessly
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Saenz v The Queen [2011] VSCA 154; R v Sumner [2016] SASFC 59; Smith v The Queen [2014] VSCA 268; DPP v Causon [2017] VCC 881; DPP v Zakeri [2015] VCC 104; Worboyes v The Queen [2021] VSCA 169
Sentence: Convicted and sentenced to a total effective sentence of 3 years and 4 months’ imprisonment, with a non-parole period of 2 years.
Section 6AAA declaration: Conviction and total effective sentence of 5 years imprisonment, with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G.Hayward | Office of Public Prosecutions |
| For the Accused | Mr A.Shwartz | Slink & Keating |
HER HONOUR:
1Richard Morton, you have pleaded guilty to one charge of making a threat to kill, one charge of attempted kidnapping and one charge of recklessly causing injury.
2These offences were committed on 29 October 2012, in Noble Park North. At this time you were living in Dandenong North. The 13 year old victim of your offending, Ms McLachlan, was walking home from a friend’s house between 9 pm and 9:50 pm. Her route home passed through a nearby park, called Oakwood Park. As she was walking down the street leading to the park, she noticed you standing on the other side of the road, staring at her.
3She kept walking towards her home and entered the park. Having done so, she noticed something behind her and turned to see you running towards her.
4You placed your hand over her face. You told her “If you scream, I’ll kill you.” Despite your threat she screamed and called out for help. Ms McLachlan escaped your hold by biting your hand, pulling out some of your hair, and kneeing you in the leg. As she ran away, she dropped the hair she had pulled out onto the grass.
5Ms McLachlan suffered swelling, an abrasion to her lips and abrasions to her neck. These injuries were caused either by you or by her fingernails in her attempts to get free from you. In either instance your conduct was a substantial contributing cause of her injuries.
6Ms McLachlan immediately complained to her family about what had happened, and police attended the scene that evening. A search of the area found the hair she had pulled from your head.
7You were not immediately identified as the perpetrator of the attack on Ms McLachlan. In March 2013, you went back to Queensland where you had previously lived. In 2017 Victoria Police received a sample of your DNA from a National DNA database. A test of your sample revealed a match with the hair left in Oakwood Park, and with DNA found on Ms McLachlan’s cheek.
8You were arrested on 7 March 2018. When interviewed you denied committing these offences. You said that you could not recall any offences occurring in the parkland of the relevant area in October 2012. You said that you had never tried to abduct anybody. You said that you had never been to the area where Oakwood Park is located, and that there was no way your DNA would be at the crime scene.
Personal circumstances
9You are now 31 years old. You were born in 1991 in Queensland. You did not experience abuse or neglect growing up. Your counsel described your relationship with your family growing up as “of the warmest nature” and described your behaviour to your family as “extraordinary”. Despite these encomiums, forensic psychologist Ms Bovenkerk noted that you reported having a strained and conflictual relationship with your father, who at times exhibited controlling tendencies and passive-aggressiveness.[1]
[1]Report of M Bovankerk, forensic psychologist, dated 16 June 2022 [20]
10During your high school years, you felt awkward when socialising and being in large crowds, due to your lack of self-confidence and poor self-image. Nevertheless, you were school captain in high school. You have reported that between the ages of 18 and 20, you drank alcohol excessively and consumed illicit substances in order to feel more relaxed in social settings. Alcohol and drugs are not ongoing issues for you.
11After high school you went on to complete a diploma of film and television. It was difficult for you to get work in that industry so you worked in other areas to make a living.
12You had commenced working at 16 years of age, at Nando’s, and over time progressed in that business, becoming a shift manager. You have worked at Nando’s and also for your father, although you did not enjoy that line of work, and in other jobs from time to time.[2] You have a solid employment history.
[2]The CV you provided sets out in detail your work history
13You moved out of your family’s home at 18, having obtained financial independence.
14Your first significant intimate relationship commenced around 2012, when you were approximately 20 years of age. Your then-partner indicated that she wished to move from Queensland to Melbourne, and you moved with her. That relationship broke down approximately three to four months before the offending, while you were living in Melbourne. The circumstances of this relationship and its ending were distressing for you.
15You report that at the time of the offending you had lost your employment with Nando’s, and a best friend with whom you lived in Melbourne had unexpectedly moved out of the share house in which you lived. You say that at this time everything was starting to crumble away and fall apart. You say that these stressors caused you to lash out and offend in the manner you did.
16Following the offending you moved back to Queensland and lived with your parents for several weeks. You then got a job on the Gold Coast with the employer you had worked for before moving to Melbourne.
17In approximately 2014 or 2015, you commenced another significant intimate relationship which you say was harmonious. Whilst that relationship was in existence, beginning in 2015 and ending in 2017, you committed criminal offences by masturbating in public parks on a number of occasions.[3] You report that due to the sexual issues in your first relationship, sexual activity was a significant part of your next relationship, and that you engaged in the public exhibitionism “in an attempt to manage [your] sexual urges” and to obtain sexual gratification.[4] You were arrested and spent 10 months on remand, between February and December 2017, for some of this conduct. Four of the six offences involved you masturbating in view of a child. One of the offences involved you following the victim for a time.
[3]See description in CV, exhibit D9 page 7
[4]Report of M. Bovankerk [46], [52]
18Your arrest prompted your then-partner to end her relationship with you. I wish to make it clear that you are not sentenced for the offending in Queensland, although it is relevant to your prospects of rehabilitation. I will address this later in these reasons.
19You are currently engaged in full-time study at the Queensland University of Technology. You are undertaking a double degree in science and engineering. You report having a year-and-a-half remaining of your studies. You have an excellent academic record, as indicated in the academic records from that university, from 2018 to 2021. In 2018, 2019, and 2020 you were on the Dean’s list of Students with Excellent Academic Performance. You have been involved in a program where students with excellent academic results assist students who are not doing well.
20You have been living with your parents. Your father is not well, and was previously subject to dizzy spells during which he could fall over and need your assistance to get up. On the plea hearing I was told that his blood pressure medication has been adjusted, so that these spells are less common.
21Whilst your mother relies on your help, she is not dependent on you. She and your father live in Ipswich, Queensland, and you have a brother who lives in that state and who visits your parents regularly.
Mental state
22A report by Ms Bovankerk, a Forensic Psychologist, was tendered on the plea. When she assessed you in May this year you did not present as depressed or anxious. On personality testing your scores did not reach the level of being clinically significant and you did not exhibit any entrenched personality disorder. You did have elevations of scores related to the Schizoid, Avoidant and Masochistic scales.[5] Reports from Dr Cunningham were also provided, which were consistent with Ms Bovankerk’s assessment.
[5]Report of M. Bovankerk [70]-[83]; See also Report of Dr Aaron Cunningham, Psychologist dated 25 August 2021, pages 2-3
23A report was also provided from Mr Topping, a psychologist whom you attended for three years in association with your offending in Queensland. You had been referred to him for treatment in October 2016 following your sentence for the first offending committed in Queensland in 2015. After your arrest and remand in February 2017, treatment ceased but resumed when you were sentenced to time served and probation, in December 2017.
24You had 29 sessions with Mr Topping, over the course of three years.
Gravity of Offending
25The victim of this offending provided a Victim Impact Statement to the court. Your offending has had a significant impact on her. She was fearful of leaving her home and became anxious and depressed. She had panic attacks and was scared of being followed. This all affected her ability to succeed at school, and she dropped out early. She says that her relationships with family and friends suffered, and that she was beset by fear in public places, for example on public transport. She still struggles with the depression and anxiety.
26The offence of making a threat to kill carries a maximum penalty of 10 years’ imprisonment. Attempted Kidnapping has a maximum of 20 years, and recklessly causing injury a maximum of 5 years’ imprisonment.
27By your plea you have admitted that you attempted to deprive the victim of her liberty, by force, against her will, and without justification. The kidnapping was an attempt only, and you did not actually carry her away, but the offence was not completed because the victim was able to fight herself free from you, not due to your decision to desist.
28As to the injuries suffered by the victim, these appear to have been caused by the physical struggle, not because of any additional acts of violence by you. They are properly charged as a separate offence since causing injury is not an element of either of the other two charges.
29All three offences were committed after dark, against a young female who was alone. You followed her to the park from where she had seen you across the road, a little distance before the park. The threat to kill the complainant was made whilst you were holding her around the mouth or face. Your offending was terrifying for the complainant. You report that you were not aware of her age.[6] I cannot find, beyond reasonable doubt, that you were aware that she was as young as 13, but it must have been apparent to you that she was a younger female.
[6]Report of M. Bovankerk [57]
30I am mindful that characterising offending as low, medium or high gravity is apt to distract from sentencing on the facts of each individual case. I will not, therefore, apply such a label to your offending, save to say that it is well above the lower range of gravity, in respect to Charges 1 and 2.
31As to your culpability, you have said that at the time you were in a difficult and distressing situation. You were only 21 and away from your usual support network of family and friends. Your relationship with your girlfriend, which had brought you to Melbourne, was over. Your housemate had left to return to Queensland, and your employment situation was unhappy. You say that because of all these stressors you “lashed out”. Even accepting that is so, it does not explain why you “lashed out”, to use your phrase, in this manner. This was a random attack on a young female, in a park, after dark. Whilst I make no finding as to your reason for attempting to kidnap this girl, bearing in mind the prosecutor’s position on this, it is very concerning that your acting out on your mental and life distress was of this nature, and severity.
Delay
32Charges were filed for these offences in early 2018, and you interviewed in March 2018. The contested committal was conducted on 22 November 2018. The victim was not cross-examined at the committal, but the DNA expert and police witnesses were. The matter was first listed for trial in January 2020, but was not reached. Thereafter the trial was delayed due to the pandemic. You report that the ongoing proceedings, and the delay in finalising them has caused you frustration, but denied any impact on your mental health.[7]
[7]Report of M. Bovankerk [37]
33The passage of time between the offending and now is also relevant to my assessment of your prospects of rehabilitation, which I will address shortly.
Plea of guilty
34Your initial position in the record of interview, and in the defence response filed in this court in November 2019, was that you were not the offender. In January 2020 a defence response was filed in which you admitted you were the alleged offender. In addition, a detailed set of admissions was provided. The issue in the trial was to be whether you did attempt to kidnap the victim, and whether the injuries were caused intentionally or recklessly. You indicated that you would plead guilty to making a threat to kill and recklessly causing injury.
35Following a sentencing indication hearing in November 2021, at which the judge declined to give an indication, the matter finally resolved on the basis before me, with you being arraigned in January 2022.
36Whilst you did not plead guilty at an early opportunity, your plea nevertheless has real utilitarian value. This is particularly so in light of the impact of the pandemic upon the operations of the Court. Furthermore, you entered a plea in circumstances where you must have known that it was a real possibility that you would be sentenced to a term of imprisonment, and where there has been a significant impact on the circumstances of prison, due to the pandemic.[8]
[8]Worboyes v The Queen [2021] VSCA 169
Remorse
37Ms Bovankerk considered that you minimised your offending, describing it as “just a grab”. She reports:[9]
He stated that it was “unfortunate that it happened” and expressed a desire to put the events of the past behind him, both so that he and the victim may move forward. … in the apology letter that Mr Morton wrote to the victim, he stipulated that his actions were wrong and recognised his conduct likely had a traumatic impact on the victim.
[9]Report of M. Bovankerk [61]
38As noted by Ms Bovankerk, you have written a letter of apology to the victim, which expresses your awareness of the wrongfulness of your actions, and that you understand that your offending will have had a significant impact upon her.
39I accept that you are remorseful, and note your plea, letter, and statements to Ms Bovankerk about your remorse. I do consider that your insight into the cause of your offending is not deep.
Prospects of Rehabilitation
40One aspect of delay is that it gives me the opportunity to assess your behaviour in the nearly 10 years since this offending.
41Whilst the charges upon which I must sentence you do not include a sexual offence, and it is not put that you were attempting to kidnap the victim for sexual purposes, it is relevant to me to consider your subsequent offending. In respect to the 2012 matters you describe your behaviour as “lashing out” and in respect to the Queensland offending you describe the motivation for your offending as attempting to manage your sexual urges. I note your comments regarding the lack of deterrent effect upon you of the first sentence you received, in 2015, after which you continued to commit offences of a similar nature.
42It is a matter of real concern that the manner in which you attempted to deal with your stress and your urges was unlawful.
43On the other hand, it is now more than 5 years since your last offence, and you have had the benefit of treatment from Mr Topping. He has expressed his willingness to treat you again, and notes that the stability of study and employment lowers the risk of reoffending.
44Ms Bovankerk assessed your as presenting a low risk of violent offending, noting the protective factors of your studies, good family supports and stable accommodation. You did not display antisocial attitudes, nor do you have a mental illness or personality disorder.[10] On the other hand you minimise your offending, and do not have good insight into the factors that contributed to it.[11]
[10]Report of M. Bovankerk [92]
[11]Report of M. Bovankerk [101]
45I accept that you have good prospects of rehabilitation, but you need to take further steps to understand and address the causes of your offending. Life presents stressors and obstacles and unless you really grapple with your fundamental motivation for offending there remains a risk of further misconduct.
46I consider that specific deterrence carries real weight in this sentencing exercise.
Other Sentences
47I was referred to four cases involving Attempted Kidnapping, with somewhat similar facts. These were Saenz v The Queen [2011] VSCA 154, R v Sumner [2016] SASCFC 59, Smith v The Queen [2014] VSCA 268 and DPP v Causon [2017] VCC 881. In the last matter the sentencing judge referred to DPP v Zakeri [2015] VCC 1041.
48In those cases, the sentences ranged from 10 months, for Attempted Kidnapping, to 6 years. I note that the offence in Smith was incitement to kidnap with a maximum of 25 years, and that the sentence in Sumner was an aggregate. There are a number of differences between those cases, and yours, but I agree with the view expressed by the Full Court in South Australia in Sumner that “[t]here can be no doubt that offences of attempted kidnapping, even when the offender has no prior record, are to be treated as grave crimes.”[12]
[12]The Queen v Sumner [2016] SASCFC 59, [45]
Totality
49All three of the offences before me were committed in the one incident. They are properly charged separately, but in order not to impose a sentence that exceeds the totality of the offending, I will only order a degree of cumulation between the charges.
50I do not consider that the sentences you received in Queensland are relevant to totality. Those offences were of quite a different character, committed years after the offences before me.
Parsimony
51I have considered whether it would be possible to achieve the sentencing purposes by the imposition of a non-custodial disposition, or a combined sentence of imprisonment and a community correction order. Your counsel submitted that a suspended sentence, in combination with a bond, would be appropriate.
52The prosecutor submitted that an immediate term of imprisonment was called for.
53I note that a suspended sentence of imprisonment is not available in respect to Charge 1.
Other Sentencing Factors
54General deterrence, denunciation and just punishment are important sentencing considerations, in offending of this nature. As I have already said, I consider specific deterrence must also be given weight in the sentencing discretion.
55Whilst you were only 21 at the time of these offences, you are now 31 years old. Your rehabilitation is still relevant and important, but I consider that only a sentence of imprisonment immediately to be served is appropriate, in all the circumstances.
56The sentences are:
(i)Charge 1 – 9 months imprisonment
(ii)Charge 2 – 3 years’ imprisonment
(iii)Charge 3 – 3 months’ imprisonment
57The sentence on Charge 2 is the base sentence. I direct that 3 months of the sentence on Charge 1 and 1 month of the sentence on Charge 3 be served cumulatively upon each other and on the sentence on Charge 2. This leads to a total effective sentence of 3 years and 4 months’ imprisonment.
58I set a non-parole period of 2 years.
59Pursuant to s6AAA of the Sentencing Act 1991, I state that had you not pleaded guilty I would have sentenced you to 5 years’ imprisonment, with a non-parole period of 3 years.
60There is no pre-sentence detention to declare.
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