R v Morgan
[2007] VSCA 192
•30 August 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 277 of 2006
| THE QUEEN |
| v. |
| BRADLEY JOSEPH IVAN MORGAN |
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JUDGES: | CHERNOV, VINCENT and KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 August 2007 | |
DATE OF JUDGMENT: | 30 August 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 192 | |
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CRIMINAL LAW – Sentencing – Armed robbery – Opportunistic attack on pedestrian – Aboriginal offender – Whether sentence manifestly excessive – R v Fuller-Cust (2002) 6 VR 496 – Whether judge erred in failing to place applicant in Aboriginal rehabilitation centre – Whether consideration given to alternative sentencing dispositions in light of “Victorian Aboriginal Justice Agreement Phase 2” – Parity – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr D G Just | Victoria Legal Aid |
CHERNOV JA:
On 19 June 2006, each of the applicant, Bradley Joseph Ivan Morgan, who is now aged 36, and his co-offender, Michael James Bourke, who is aged 39, pleaded guilty in the County Court at Melbourne to one count of armed robbery committed on 12 November 2005. The maximum penalty for that offence is 25 years' imprisonment. The applicant admitted numerous prior convictions, including convictions for theft, failing to answer bail and drug offences from nine court appearances between June 1990 and January 2004. After hearing a plea in mitigation of sentence, on 16 August 2006, the learned sentencing judge sentenced the applicant to three years' imprisonment and directed that he serve a minimum of 20 months before becoming eligible for parole. His co-offender was sentenced to two years and nine months' imprisonment with a non-parole period of 18 months. The applicant sought leave to appeal against sentence, and his application, which first came on for hearing before a single judge of this Court on 16 February 2007 pursuant to s.582 of the Crimes Act 1958, is now before us pursuant to his Honour's reference.
Before dealing with the applicant's arguments in support of his application, it is necessary to describe briefly the circumstances of the offending and of the applicant as they were found by his Honour. At approximately 3.10 pm on Saturday 12 November 2005 the applicant and his co-offender were in the Fitzroy Gardens in East Melbourne. The victim was a 46-year-old Asian male who was taking photographs in a secluded area of the gardens. The applicant approached him from behind, grabbed him around the neck and placed a knife to his throat for approximately 20 seconds. In the course of this he took the victim's camera and made a demand for his wallet. The victim handed him his wallet, from which the applicant removed $120 cash before throwing it to the ground. While the applicant held the knife to his victim's throat he called upon his co-offender to take the victim's camera bag which was on the nearby seat. The offenders then fled the scene, with Bourke carrying the camera bag whilst the applicant had the victim's camera and the cash. The victim started to chase after them and called for help. A 17-year-old girl who was nearby assisted the victim by grabbing the co-offender and, with others, held him until police arrived. The applicant, however, escaped.
The co-offender made full admissions to the police following his arrest. He said that he was not aware that the applicant was going to produce a knife but agreed that he had participated in the armed robbery and had stolen the victim's camera bag after the applicant had held a knife to him.
The applicant was arrested two days later. In the interim, he made an attempt to change his appearance by shaving his beard and hair. He later effectively admitted that he had done so to avoid detection. He also admitted to police his involvement in the armed robbery. He said that it was committed on the spur of the moment. The applicant told police that he had taken heroin, Valium and Serapax on the day of the robbery and consequently his memory of what occurred was impaired and that he could not remember having a knife at the time of the robbery. He said in his record of interview: "The only explanation I can give is I was really stoned from the drugs that I used on the day and I can't think of no other reason why I committed it except that. It was very out of character for me."
The applicant was charged on 14 November 2005 and was released on bail. On 11 January 2006 his bail was revoked due to his failure to report to police as required by his bail conditions. On 7 February 2006 he was again granted bail but that was revoked on 23 March 2006 and he was remanded in custody.
The applicant, as I have said, is now 36 years of age. He is of Aboriginal descent. At the time of the offending he was unemployed and had been in receipt of a disability pension for a number of years. In 2002 he was involved in a motor vehicle accident and hospitalised for an extended period. It seems that he has not been able to work as a consequence of that and because of his serious addiction to heroin during the period of some six years prior to the offending. In his report of 11 August 2006 that was tendered in evidence during the hearing of the plea in mitigation, Mr Crewdson, a psychologist, described the applicant's background as dysfunctional. He is the ninth child in an extended family of four sisters and eleven brothers, one of whom died of a heart attack at the age of 36 years. He has no contact with many of his siblings. His childhood was marred by disruption and aggression as a result of his father's alcoholism and violence towards his mother. He spent part of his early primary school years in a boys' home in Geelong, together with one of his brothers, due to the impact of domestic violence. Otherwise, he attended primary school in Mildura and Bendigo, then technical schools in Mildura and Collingwood, completing year 11. It seems that he experienced racism at school and did not continue further his education.
The applicant has had a varied employment history, mostly semi-skilled labouring work, but he has also trained as an Aboriginal health worker and was employed in that capacity between 1989 and 1992. He has never married but has had three significant relationships from which he has had three children. His first son is aged 14 years and lives with his mother in Sydney but the applicant has had no contact with him since birth. He has another son and one daughter, aged about 11 and 10 years, from his last relationship. Their mother had left the children with him when the youngest was two months old and, until the death of the applicant's mother in November 2000, he, with her assistance, had been their primary carer. Following his mother's death, the applicant felt unable to care for his children and their maternal grandmother assumed this responsibility, although, prior to the commission of this offence, he had resumed being their sole carer. The children presently reside with their maternal grandmother.
As I have mentioned, at the time of the commission of the offence and the preceding six years, the applicant had a significant heroin addiction. He told Mr Crewdson that at the time of the offence he was using heroin to the value of $300 to $1,000 per day. The heroin addiction appears to have been precipitated by his mother's death, his inability to care for his children without her, and his ensuing depression. The applicant had a very close bond with his mother and the psychological effect of the death was magnified by his being present when she died of a heart attack and the subsequent loss of his children. In January 2004 the applicant was sentenced to a term of imprisonment for drug offences, burglary and theft that arose, said his counsel on the plea in mitigation, from his heroin addiction.
His Honour accepted Mr Crewdson's opinion that the applicant was well in the sense of not being as psychologically vulnerable as he had been in the past, and that personality factors predisposed him to an effective rehabilitation. The judge also accepted that the applicant was aware that he needed to make many psycho-social changes in order to avoid becoming involved in drug use in a major way. The judge also noted the report of Dr Danny Sullivan, a psychiatrist, of 9 August 2006 that was tendered in evidence, in which he referred to the applicant's previous problems arising from substance abuse, including heroin, cannabis and benzodiazapams. Dr Sullivan also stated in the context of his opinions and recommendations that he saw no medical or psychiatric issue that would prevent the applicant from accessing the Warrakoo program, to which reference will be made later.
As the sentencing judge noted, while in gaol the applicant had been taking advantage of the rehabilitation programs that are available. Thus, he successfully completed a drug education program and the Marumali Program, a rehabilitation program that is focused on the specific needs of the indigenous community. He was also enrolled at a TAFE facility where he was completing a certificate in cultural studies - Learning Pathways for Australian Aboriginal and Torres Strait Islander Peoples. His Honour accepted that the applicant can be justly proud of his progress towards rehabilitation while in prison. We were told that he has reached a position of trust in the eyes of the prisoners and the authorities by being appointed to the position of a prisoner “listener”. That involves essentially being a liaison person between the prisoner in question and the authorities. He has, by all accounts, been a model prisoner.
His Honour also accepted that the applicant has had good support from his family and friends and assessed his prospects of rehabilitation as being reasonably good. The judge said that, in considering the applicant's background and current circumstances, he took into account the comments of members of the Court in R v Fuller-Cust[1] to the effect that, although race is not a basis for discrimination in the sentencing process, in the context of a particular case, the disadvantages suffered by the offender by reason of his membership of the Aboriginal race may be relevant mitigating circumstances for sentencing purposes.
[1](2002) 6 VR 496.
I now turn to deal with the arguments in support of the grounds and do so in the order in which they were presented.
Ground 1
This ground alleges that the sentence is manifestly excessive. Although this ground was not addressed in oral argument, we were told that it was relied on as basis of the claim that his Honour erred in the sentencing disposition. Hence it is necessary for us to deal with this ground, albeit briefly. The essential question is whether the sentence in question is outside the range of sentences that was available to his Honour in the exercise of sound discretionary judgment. It is a question that does not admit of much elaboration. Once the relevant circumstances are ascertained, then the sentence upon its face appears plainly excessive or it does not. His Honour's difficult task was to fix a sentence that reflected the gravity of the offence and of the offending and the applicable sentencing principles, but also taking into account the important personal and other mitigating factors applicable to the offender. It is plain enough that the offence of armed robbery is a very serious offence carrying with it, as I have said, a maximum custodial sentence of 25 years. The offending conduct here was also a serious example of this crime, having been perpetrated against a soft target with the use of a knife held at the throat of the victim, who, unsurprisingly, was terrified and has suffered ongoing emotional and psychological consequences, including a diminution in enjoyment of his hobby of photography. And the applicant's significant prior criminal history, that includes prior convictions for dishonesty, violence and weapon related offences, is also a relevant aggravating factor[2]. In the circumstances, special and general deterrence and the denunciation of such conduct assume considerable significance in the sentencing disposition, as does the need to protect the community. The Court has said on many occasions that, because of the serious nature of attacks on small and soft targets, those apprehended for such offending must expect to receive condign punishment, and that mitigating personal factors of the offender must to a degree give way to the primary purpose of punishment for such offences, namely, deterrence.[3]
[2]See, eg, R v O'Brien and Gloster [1997] 2 VR 714, 718-719 (Charles JA).
[3]See, eg, R v Pratt [2003] VSCA 186, [20] (Eames JA).
The personal circumstances of the applicant have been briefly mentioned by me and are set out comprehensively in the sentencing remarks of his Honour, as are the other applicable mitigating circumstances, in particular, his Aboriginal background and his prospects of rehabilitation including his progress towards it whilst in prison. In all the circumstances, however, I consider that the head sentence is within the relevant range, as is the non-parole period, which, I note, is shorter than usual, reflecting the judge's conclusion concerning the applicant's positive prospects of rehabilitation.
Ground 2
It was next argued under cover of ground 2 that his Honour erred in not dealing with the applicant by "placing" him in the Warrakoo Life Skills Rehabilitation Centre ("Warrakoo") or failing to give adequate consideration to other appropriate sentencing options in light of the publication of the Victorian Aboriginal Justice Agreement Phase 2 ("AJA2"). As I understand it, Warrakoo is located in New South Wales and is a place to which indigenous offenders from the country, who are typically brought before the Magistrates' Court, may be bailed so that by the time they appear on the adjourned hearing they can produce positive evidence of their rehabilitation. It was also argued that, although the same sentencing principles apply to an Aboriginal offender as to any other offender, there are particular disadvantages that are associated with the offender's membership of the Aboriginal race that must be taken into account in the sentencing disposition, as was pointed out by Batt and Eames JJA particularly in Fuller-Cust. It was said that his Honour failed to consider sufficiently the principles that arise out of that case. The basis for that submission was that, in his sentencing remarks, the judge did not in terms deal with the principles arising from that case. But it is plain enough that his Honour had regard to them for sentencing purposes – he introduced them into discussion during the hearing of the plea in mitigation and gave the applicant's then counsel the opportunity to add to what the judge said in that regard, an opportunity that was not taken up. It was also said that in rejecting the proposal by the applicant's counsel that he be placed in the Warrakoo facility or receive a sentence that did not involve further imprisonment his Honour failed adequately to apply the principles in Fuller-Cust or those referred to in AJA2, essentially because he did not in terms refer to them in his judgment. In my view, these arguments should be rejected for these reasons. First, his Honour did not have the jurisdiction or power to order the applicant to be placed in Warrakoo, or tailor a sentencing disposition on condition that he go there. As his Honour said, correctly, I think, during the hearing of the plea in mitigation, the Sentencing Act 1991 did not empower him to place the applicant in Warrakoo. His Honour was obliged to sentence the applicant and could not could have properly granted him bail on condition that he attend Warrakoo (or any other condition). In any event, the offender can only gain access to Warrakoo by agreement with its management and such agreement had not been secured here. I put to one side the fact that the facility is in another jurisdiction, which would have created problems for the sentencing judge to have committed him to that institution. Unsurprisingly, counsel conceded that there were "difficulties" in his Honour being able to make any meaningful order that would place the applicant at that location and accepted that, in the circumstances, the appropriate sentence was a term of imprisonment.
Secondly, as I have already indicated, his Honour plainly did take into account the principles in Fuller-Cust in tailoring the sentence for this particular applicant. Furthermore, the claim that his Honour failed to give adequate consideration to what is said in AJA2 concerning the court's sentencing options in respect of indigenous offenders is also not without difficulty because that document was not brought to his Honour's attention. Be that as it may, the sentencing options that are described on page 14 of the document do not suggest any definitive sentencing disposition for such offenders. The document states only in general terms that sentencing options should be "culturally appropriate and relevant to Aboriginal offenders". And, for the brief reasons I have given, his Honour did have regard to that principle when sentencing the applicant.
In summary, I think it is plain that his Honour considered all the sentencing options that were reasonably available, and recognised that imprisonment was the last sentencing resort, given the applicant's aboriginality but, in the circumstances, he felt compelled to impose the sentence he did. In that regard I consider he made no relevant error.
In the circumstances, as I have said, I would reject ground 2.
Ground 3
It was argued under cover of ground 3 that the sentence offends the principle of parity given that there is significant disparity in the respective sentences imposed on the applicant and his co-offender Bourke such as is likely to engender a justifiable sense of grievance in the applicant. More specifically, it was pointed out that the difference in the sentences was not warranted, given that both offenders acted on the spur of the moment and that Bourke, who had a much longer and more relevant criminal history, had not experienced the same degree of disadvantage or emotional difficulty as the applicant and that his Honour found that his prospects of rehabilitation were more doubtful.
I consider, however, that this ground is also without merit. There were material differences in the respective conduct and the personal circumstances of the two offenders such as to justify his Honour not imposing identical sentences on the two offenders (which his Honour was not obliged to do in any event). For example, Bourke's role in the offending was less than that of the applicant and, while Bourke had a lengthier criminal history, the applicant had a prior conviction for violence. Furthermore, Bourke passively surrendered when first confronted close to the scene, whereas the applicant escaped and altered his appearance in order to avoid detection. Also, Bourke had never previously been sentenced to an immediate term of imprisonment, whereas the applicant had served three such sentences. I consider that, in the circumstances, the disparity in the sentences is not of such magnitude as to lead to an objective sense of relevant grievance indicating that justice has not been even-handed.[4]
[4]See, eg, R v Galea [2001] VSCA 115, [13] (Winneke P).
Conclusion
Consequently, in all the circumstances, I would refuse the application for leave to appeal against sentence.
VINCENT JA:
I agree.
KELLAM JA:
I also agree.
CHERNOV JA:
The order of the Court is that the application for leave to appeal against sentence is refused.
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