Morgan, Edward v D.P.P

[2010] NSWDC 289

CITATION:	Morgan, Edward v D.P.P [2010] NSWDC 289
JUDGMENT DATE:	29 September 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Pursuant to Section 11 of the Crimes (Sentencing Procedure) Act 1999 conditional bail is granted for a period of 12 months.
CATCHWORDS:	Criminal Law - District Court Severity Appeal - s.12 Bond Revocation appeal - contravene domestic violence order - assault - usefulness of "time out place" for drunk partner - full time rehabilitation place available - s. 11 conditional bail granted.
PARTIES:	Edward Morgan Director of Public Prosecutions
FILE NUMBER(S):	2010/31935; 2010/278731
SOLICITORS:	Crown: Ms S Hely Defence: S McCorriston

JUDGMENT

1. Edward Morgan appeals against the severity of sentences imposed upon on him by the Moree Local Court in respect of two offences and a call-up offence.

2. Those sentences were imposed by the Moree Local Court on 25 August 2010. On that occasion he was before the court for contravening a domestic violence order and for the common assault of LB. Those offences had occurred on 21 August, some four days before the sentence. His Honour imposed, in respect of the contravene domestic violence order, a sentence of eighteen months imprisonment and in respect of the common assault a sentence of six months imprisonment. Those sentences were to date from 22 August last and I note that the appellant has been in custody on these matters since that time.

3. His conviction on those offences required the Magistrate to consider the appellant’s position in respect to a s 12 bond he had been given for a similar offence, that is, namely contravene domestic violence order on 4 February 2010. On that occasion the Local Court had imposed a term of imprisonment of seven months but had suspended it, conditional upon him entering into a bond to be of good behaviour. His Honour obviously came to a view that the first term of the bond, namely, that he be of good behaviour had been breached by the commission of the two offences I have earlier referred to.

4. The circumstances of the offending conduct was this, that as the history would have demonstrated in August this year there was an enforceable AVO protecting LB from the appellant. The two were de facto parties who resided together in Tingha. The appellant has a long history, since 2000 even, of domestic violence matters whereby LB is always the victim and almost exclusively all of these assaults occurred in circumstances where the appellant was intoxicated. When he is intoxicated he is a “bad drunk”.

5. That is something he may want to explore because not all drunks are bad drunks. Some drunks are happy drunks and it may be a matter of some importance of him to work out why it is that when he is intoxicated he becomes a bad drunk. That means that there must be hidden anger in there about something that he has not yet addressed. Regrettably it is his partner who is the victim, it would seem, of most of his anger.

6. On 4 February he had gone to the hotel and had undertaken not to come home if he was going there to drink, if he was drunk. Not surprisingly after at least eighteen occasions LB is scared of him when he is drunk. He well knows that he is not welcome in the house if he has been drinking.

7. If he is going to continue to drink he should do what many of the Aboriginals do now in some parts of Canada which is find a place that he can go to when he is drunk, so that he can leave the house that he lives in when he is getting angry, get out of it and go somewhere else where he can either go to sleep or talk his problems through.

8. I think that one of the reasons why there is so much domestic violence in the houses is because the men have not worked out a strategy of somewhere else to go when they need to “let off their steam”. That is understandable, their house is their home. But in Aboriginal communities, particularly in Canada, they are now working out that when the men are drunk the best thing they can do is go to a mate’s place or some place neutral and come back the next day.

9. In any event, on that occasion she was assaulted and that was what he received the s 12 bond for.

10. The matters that constitute the breach are: in August he would be well aware of the terms of the bond and clearly that assault, molest, harass or threaten is prohibited. He must not engage in conduct that intimidates and he must not stalk her. He is not supposed to approach the person of premises - I think in this case he did not, he got drunk at home if I remember - they were celebrating their daughter’s 21st birthday with twelve other people. He became intoxicated and at 7.00 pm. He and LB were standing outside the residence. He started yelling and swearing at her. So she walked inside into the kitchen to be away from him. He regrettably followed, I suspect as I said a moment ago that is because he had nowhere else to go. He raised his right fist and pushed it into the left cheek of the victim.

11. Now, let us see against the Order what constituted the breach. The Orders were:

Not assault - That was an assault.

Not molest - That was a molestation.

Not otherwise interfere with - That was otherwise interfering with.

12. Was it conduct that intimidated? She has already told us that she is “scared stiff “of him when he is drunk and so it was clearly a very significant breach of the Order.

13. At 1.30 am on 22 August, which I understand is the following day, police attended the residence and spoke to LB’s mother and to her. At 2.00 am they went and searched for the appellant. They saw him inside the house. He was in the house hiding under a blanket.

14. He was so drunk that they did not even bother asking him if he would be interviewed.

15. It is not against the law to drink but there comes a time in the life of people when they really have to ask whether they really should be drinking because, while they are disinhibited, they are getting into trouble in other ways, namely, through assault.

16. If I looked at the appellant’s criminal antecedents I see that he has been before the courts off and on since 1976 but more importantly the adult courts since 1988, and very early amongst his offences is one in January 1988, assault female. I suspect that would be a domestic violence. Thereafter, there are a number of other offences some for criminal matters outside the home but most of them are for friction within the home. The driving offences, some of them are also alcohol related.

17. The appellant has, as I see it, been in custody from time to time since 1990, counting this time, nine times for any substantial period in custody. I should imagine most of those were related to the very same thing we are talking about and really he cannot be all that dumb. He must know what is happening. He should have enough self-discipline to accept responsibility and do something about it.

18. When he is sober apparently people think relatively well of him. He has two references to me relating to his employment doing the major building renovations to sixteen properties belonging to the Anaiwan LALC in 2005 and 2006, which I think is an Aboriginal Land Council. The Director has known him for the last six years and found him to be pleasant and very much a family man. That is not the man, I think, who is like that when he is drunk. That is the man who is like that when he is sober.

19. To the Magistrates credit I really would not be much inclined to interfere with the sentence. I might have reduced it a bit, but in the absence of a real fair dinkum effort to rehabilitate it seems to me that the partner is entitled to such protection as the law can give her. If that protection really requires that she be alone without a partner for a period of time, then that is what we have to do. But he has been offered a place at the Roy Thorne Rehabilitation Centre if he is able to get bail.

20. I will be giving him bail on the following conditions:

• That he be of good behaviour.
• That he reside at Roy Thorne Rehabilitation Centre and abide by all directions of his case manager with the Rehabilitation Centre.
• That he accept supervision by Probation and Parole and accept all reasonable directions of his case manager with Probation and Parole.
• A failure to attend Roy Thorne and/or Probation and Parole counselling, training and meetings will be deemed breach of the condition of bail. He must abide all directions of his case manager and attend all counselling, training and meetings as required. Any failure to attend those, is a breach of bail.
• Upon discharge from Roy Thorne he is to reside at--

MCCORRISTON: He will be residing at 10 Copes Creek Road, Tingha.

HIS HONOUR: I read somewhere that she didn’t want him back, has that changed?

MCCORRISTON: Well your Honour she is certainly here in support of Mr Morgan today and it seems that if he accepted some help that she would be happy to have him home with the family.

HIS HONOUR:

• He is to abstain from the consumption of alcoholic beverages not only during the period at Roy Thorne but also for the period of the bail, the whole period of the bail.
• If he is arrested, in the event of an arrest when he is in a state of intoxication that will be deemed a breach of bail.
• He is to lodge with Probation and Parole a "time out place" that he can go to it when he is drunk, so that when the bail is finished if he should get drunk, he has a time out place to go to.

21. HIS HONOUR:

• Detection of alcohol or drugs during the bail period will be deemed a breach of bail.
• He is to submit to all random urine and other testing, I do not mean blood testing, random urine or breath testing for the detection of illicit drugs.
• Upon discharge from Roy Thorne Rehabilitation Centre he is to do all he can to obtain and maintain employment.
• During any period that he is seeking to obtain employment he is to spend three hours weekly in some community based activity, that can be as a sports coach or it can be working with Salvation Army or St Vincent’s De Paul or finding a mowing machine and going and mowing all your neighbours lawns. I do not mind what it is, so long as it puts you in contact with people who are not alcoholics and are living useful lives. I do not mind what your community activity is but you are going to have to prove to me when you come to bail reviews that you are doing a community activity for not working.
• Upon discharge from Roy Thorne and at Roy Thorne he is to continue to submit to a random breath and urine tests as required by Probation and Parole.
• He is to attend at court at such times as required including 10 December at the Sydney District Court, 11 March and 10 June 2011, and 9 September, at courts to be advised. He will attend I think at this court so that those attendances can be via AVL.
• Bail may be entered by the officer-in-charge of the Corrective Services Institute here at Moree or his delegate provided he is released to an approved person for the purposes of transferring him to Roy Thorne. Tom French or his authorised delegate is to be regarded as an approved person.

22. I order a pre-sentence progress report to be prepared by 10 December 2010.

HIS HONOUR: What is going to happen Mr Morgan is this, that for the next year you and I will see each other even if it is only over the TV three or four times, probably four times, so that I can assess what progress you are making. Do you understand that much?

APPELLANT: Yep.

HIS HONOUR: In the event that you are successful I will reduce the sentence to one of twelve months and suspend it. If you are not successful I will simply return you to custody to serve the sentences you are currently serving. Whatever I do you will be given credit for the time you have already served. Now, have you understood all of the bail conditions?

APPELLANT: Yep.

HIS HONOUR: Is there any bail condition that you could not perform?

APPELLANT: No.

HIS HONOUR: Do you agree with me that in the event you fail to perform a bail condition, now that you have told me that you can perform them all, that would indicate a failure to comply with the bond and in those circumstances you deserve to go back to gaol. Do you agree with that?

APPELLANT: Yep.

HIS HONOUR: I want you to understand that that is the option.