R v Morgan

[2013] VCC 1332

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-11-02299

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN JAMES MORGAN

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 February 2013
CASE MAY BE CITED AS:	R v. Morgan
MEDIUM NEUTRAL CITATION:	[2013] VCC 1332

REASONS FOR SENTENCE
---

Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. McWilliams
For the Accused	Mr M. Gumbleton

HIS HONOUR:

1       Darren James Morgan, you have pleaded guilty to one count of aggravated burglary, one count of theft and one count of making threat to inflict serious injury.  Those crimes carry maximum penalties of 25 years, 10 years and 5 years respectively.

2       You have pleaded to the matters back on 24 September last year and this process has taken a considerable period of time.  I accept, in the ultimate, that your plea of guilty is accompanied by appropriate remorse and you must also get the utilitarian benefit of that plea.

3       You have a very extensive criminal history.  It commences, certainly insofar as documentation is concerned, though clearly must have been matters in the Children's Court as well, when you were gaoled at around about the age of 17.  Since then you have never been given a community disposition and you have been gaoled, on my calculation, on 21 separate occasions, the sentences ranging up to three and a half years.  You are now 42 years of age.  It would appear from the record, and from what you have told your counsel, that the most time you have ever spent out of custody since you were a young teenager, is ten months.  Prior to the criminal history commencing, so far as documentation is concerned, you were also in Baltara and Turana and they are places that are well known or were well known to me.

4 Your prior convictions cover the field. They are for violence, dishonesty and driving. Firstly, pursuant to s.464 of the Crimes Act I make an order that you provide a saliva sample for DNA testing. That order having been made I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you. That order is made and handed down.

5       The circumstances of the offending are that on 22 July 2011 you attended in Gordon Grove in Preston.  One, Susanna Pranjic, was living there.  At approximately midday you went to her house.  You walked to the back of the house and looked through a window where you saw her in the house.  You also saw through the house window, a laptop computer and a table in the house.  You walked into the unlocked back door and entered the property.  At the time you entered the house you were aware that she was there.  Further, you were in possession of an offensive weapon, being a knife with a long blade.  At the time you entered you intended to steal the laptop.

6       While in the house you picked up the laptop mouse and power cord and then went to leave.  You encountered her while making your way to leave the house.  You produced the knife that you had in your possession and said words to the effect of, "If you come any closer I'll stab you", and you gestured at her with the knife, holding it at shoulder level.  You then left the house.  That is the threat to inflict serious injury.  The theft is that of the laptop and the aggravated burglary is clearly entering with the intention to steal, knowing there is a person present.

7       The complainant telephoned Triple 0 and reported the incident.  At approximately 20 past 12 you were found at an address in Albert Street in Preston.  You were arrested and spoken to in regard to these matters and you were able to give the police the property and made limited admissions.  You conceded that you knew that she was present in the house but you denied having used the knife.  In any event, you have ultimately pleaded guilty to all these matters and must get the benefit of that.

8       In this matter a victim impact statement has been filed, and which I have taken careful note of.  I do not know whether you have ever seen this victim impact statement, I cannot remember if it was read out, but it describes the consequences for this innocent woman.  She says that when she is out she is always looking behind her.  She said she has flashbacks and has nightmares about you.  She said that she is trying to recover her life but her friends think she has changed.  She used to be outgoing and now she is not.

9       This is something that I am going to read to you, because I see Keith Randall is here.  I will read this to you.  This is what an elder would say to you if this is was in Koori Court, all right, and this is quoting your victim:

"Although I've never been a racist person whenever I see Aboriginal people I freak out because I think it might be him.  I never had this fear of Aboriginal people before.  Even when I was volunteering at Salvos and Aboriginal people came into the store I could not serve them because they remind me of him.  It makes me shake with fear".

10      What elders would say to you is that that is how people see this when you offend, that your whole people cop it, okay.  When you do this stuff your people, rightly or wrongly, they cop it.  That is how people perceive black fellas, because of stuff like this, all right.  I will let you in, if there was an elder here I am sure you would get about 25 minutes worth of that but there is not so be it.

11      In any event, the offending is clearly serious.  It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  A significant active custodial sentence is inevitable.

12      Tendered on your behalf was a Rapids Report insofar as detoxification is concerned, a report from Mr Simmonds, which I will refer to in a moment, and a letter from you, which you had the courage, at least, to read out in open court.  I understand how difficult that process can be for someone such as yourself, to stand in front of a group of people and express your feelings.  You did it and it gives me confidence in your determination to rehabilitate.  Whether you do rehabilitate is going to be up to you, with the assistance of Corrections, but that gave me more confidence than I might have had, looking at your long criminal history.

13      The outline of submissions relied upon by your counsel are sadly so typical.  You are an Aboriginal man, 42 years of age.  Your alcohol use started when you were very young.  That would seem to have dissipated to a degree.  You have used all sorts of drugs and for a number of years have been using heroin, which has taken over as your main drug.  You have had a, I think, obviously, a massive habit.  You have now been on methadone for a period of time and I accept that you have now been able to wean yourself from the methadone whilst in custody.

14      The circumstances of the offending were thieving to pay for heroin, and I accept that.  You have been in custody since the date of the offending.  You have, so your instruct your solicitor, a girlfriend, who is supportive and drug free.

15      I am well aware of the provisions relating to the sentence of Aboriginal people but I think I should, in this particular situation, just say that it is clearly understood where you have come from.  I will go through your history to a certain extent.  You were born in Kyabram.  You were raised in Shepparton.  Both your parents were Aboriginal.  They separated when you were four but then it was on again, off again for a period of years.  You are the second eldest of five children.  Two brothers died in the early years and that put a lot of stress on the family.  At the age of five you witnesses your brother, Dean, your older brother, being run over by a car.  You never received counselling.  I have seen this before.  You were made to feel like it was your fault.  You became the eldest and became responsible for the two younger ones.  They survived on their own.

16      You were raised in a Ministry of Housing two bedroom house and you and your siblings shared one bedroom.  Your father was an alcoholic.  He hosted drinking sessions at the family house on a nightly basis, extended family would crash in the living room, up late, drinking.  You witnessed, I have no doubt, a lot of fighting.  You would sleep in an abandoned car in the backyard just to get some sleep.  There was never any food in the cupboard.  You used to hide food.  You never had school lunches.  You, understandably, rebelled at school in Shepparton and your anger and violence is reflecting what you were living in at home.  You were expelled once for violence and changed school.

17      Your father was violent towards your mother and occasionally you children.  Your mother would flee to women's refuges and shelters.  You would hide with your aunty and uncles to avoid the violence.  Your mother was hospitalised on a regular basis with bruising, broken bones and a swollen face.  Sometimes she was too ashamed to leave the house.  You kids had to fend for yourselves.  Your father was in an and out of gaol.

18      At the age of 12 you were taken by DHS and made a ward.  You were placed in Baltara and Turana Boys Home.   At that period of time I know well that you would have been, as a ward, placed in with offending children as well.  The group mentality and the group morality created, and particularly Baltara, was dreadful to behold.  In any event, in those circumstances, you came to the belief that you were being programmed to think you were no good, and that is probably dead right.  You describe, in that situation, of copping floggings.  You had limited education opportunities at the boys home and basic English and maths.  You have poor literacy, though you made a great effort in reading out that letter.  I am interested in how many goes you had at it before you did it in court.  You were kept separate from mainstream schooling.  It was during those periods of time you were first exposed to cannabis, amphetamines and alcohol.

19      From the Children's Court you went straight to YTC.  You never, in the Children's Court, I am advised, received any probation or supervision.  As I have indicated, your first adult gaol sentence was about the age of 18.  Your heroin addiction commence in 2006 upon the passing of your mother.  You have never had any jobs for an extended period of time, though you have done labouring.  You, on the material before me, are, if not already, clearly very close to being institutionalised.

20      Your letter, which you read out - I am not going to read it in detail - simply one part of it which I think is crucial for your potential rehabilitation.  You indicate there that you have the support of elders, and clearly, as this matter has proceeded you have the support of a number of people who have place faith in you, that you can get yourself out of this lifestyle.  You said in that letter:

"Pride means to me today, standing tall with my head high as a black man, knowing I do have a future and I can make a difference, especially to young brothers and sisters".

21      The best thing you can do for young brothers and sisters is never let them see you or hear of you offending again, all right.  I accept that that letter is genuine and I accept that you are genuine in endeavouring to fulfil it.

22      The report from Mr Simmonds essentially confirms what I have already referred to.  The violence and the like that occurred in the house and the ultimate and somewhat unavoidable, I suspect, addiction to drugs.  He also points out the difficulties of you with institutionalisation, drug dependency and general lack of life skills.

23      He indicates, as have many others, that you would benefit from the Wongala Ngalu Program.  I am very aware of that program.  I know that you have indicated that it is not something you want to do.  I indicate to Corrections, who will have the responsibility of you for the next two years, that my personal view is that you would get great assistance from that if you are genuine in terms of your pride in who you are and where you are from.  I think that the assistance of the people up there and the assistance of your brothers in that sort of environment would be of great help to you and give you a sense of security.  I think it is a situation that people such as yourself have no real idea who you are until you spend a significant period of time with your brothers and make sure you know who you are.

24      As I indicated, a significant custodial sentence is inevitable in this situation.  In your particular circumstance I think that has reached the stage as described in DPP v. Leach:

"It's particularly important that this court should not devalue or deny the right of the sentencing judge to act mercifully in a case where it seems to the judge to be an instance of an opportunity for reformation of an offender ought be grasped.  That, after all, may be the decision which rebounds very much to the benefit of the community".

25      In the DPP v. Tokava the President of the Court of Appeal said:

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of serious offence, if in the long term the community's interest will be best served by that course.  This court should seek to promote public understanding of the fact that apart from the interest in the individual whom it has sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime".

26      I think your situation is that.  This, in some regards, will be the first attempt at community disposition, community treatment for you, and I fear very much that the institutionalisation of you now at 42, being of Aboriginal descent, that you have not got much longer to go if you do not stop using the drugs.  It is a common thing for people in your circumstances with your abuse of yourself over those years to die pretty soon, and you know how many brothers go in their forties.

27      As I have indicated, you have been on methadone whilst in custody and it has now been reduced to zero.  You have been in custody for something approaching 19 months.  Had you not done such a significant period of time in gaol already, and had you not been able to detoxify, I make it clear I would not be imposing this disposition.

28      You have already been allocated to a Koori liaison officer, Shirley Anagi, and she will take care of you from the moment of your release.  I think it is important that there be a few days more custody so that things can be put in place so that when you are released you can be released to stable accommodation and have the assistance available to you that you need.  I think that the prospects of your rehabilitation, of course, must be guarded.  The risk of you re-offending is totally dependent upon that rehabilitation.  It reaches a stage with people, however, that even if there is a risk of re-offending, that simply imposing additional gaol on you is not ultimately going to remove that.  It is to the community's benefit as much as yours if you can achieve it.

29      I do not propose to impose work hours but what I do propose to include within the Community Corrections Order is judicial monitoring.  All right, what will happen is every few months you will come back here and I will see how you are going.  This is a new type of sentencing.  Judges never used to do this.  I have got three of these going at the moment. One for Craig Morgan, I think was from Shep.  I do not know if you know Craig or not.  He might be a cousin, and he is the same position as you, right.  Years of offending, years of it, and he has now been out for something like ten months on one of these.  He has been back and he is doing really well, all right, and he sees himself as a bit of a role model, that it can be done.  He came to me the other day and said that - called me a parrot.  He said every time he looks in the mirror I am sitting on his shoulder saying, do not do it, all right.  That is what is going to happen with judicial monitoring.  I hope I am a cockatoo and not a galah but that is another matter.  So that is what is going to happen, okay.  If you start to wander you get brought back, right, you will be coming back, I am having a yarn to you when you do come back and Corrections make a report about you, all right.

30      It is all up to you, okay.  I think you can do it and I have been given confidence by how a couple of other fellows have been able to do this with the judicial monitoring and with the - I think, I might be wrong about this, but greater assistance black fellas seem to get these days from Corrections, okay.

31      In any event, doing the best I can, on all the charges there is an aggregate sentence of 580 days.  I direct that 574 days be reckoned as having been served under that sentence.  On all the charges you are also sentenced to a Community Corrections Order with conviction for a period of two years.  An assessment has been sought from Corrections and you have clearly been accepted and that acceptance is on the court file.

32      They recommend a number of conditions.  As was indicated, I do not propose to do unpaid community work.  However, there will be treatment and rehabilitation, assessment and treatment for alcohol and drugs, offending behaviour programs, supervision and judicial monitoring, all right.  So far as judicial monitoring is concerned I think three months, Mr Gumbleton, is about sufficient time to see how he is travelling.  Yes.  So what I might do - what is it now?  I might do it in early June.  Look, actually, what I will do is I might make it a bit shorter than that.  I will make it eight weeks.  So that will be April, 12 April.  We will make it at 9.45 and I just want to know basically when that happens how he is travelling, all right.  There are no other orders I need to make or I have made everything, have I not?

33      MR McWILLIAMS:  6AAA.

34      HIS HONOUR:  I forgot about that.  Do I do that when I have got a sentence that a CCO?

35      MR McWILLIAMS:  Yes.  Any sentence without - yes, any sentence where there is a plea.

36      HIS HONOUR:  I have not even thought about it.  They are the things you do not guess about either because later on you always look silly.  Hang on just a sec, just two secs.

37      MR McWILLIAMS:  I can tell you what we were asking for.

38      HIS HONOUR:  What were you asking for, if it helps?

39      MR McWILLIAMS:  I think it was a six with a four, I think, was it not, Mark?  Sorry, a five with a three.  It is so long ago I cannot really remember it.

40      HIS HONOUR:  Maybe that is right.  Maybe after a trial I would have done that.

41      MR GUMBLETON:  I do not think (indistinct) ever asked.

42      MR McWILLIAMS:  No, I was not.  That is what I am saying.  I just thought after a trial maybe that - - -

43      HIS HONOUR:  It is probably about right actually.

44      MR McWILLIAMS:  I will let them know.

45      HIS HONOUR:  Have you got anything to say to that, Mr Gumbleton?  That does not mean that if he breaches that is what he will be getting either, because he is - I make that very - - -

46      MR GUMBLETON:  On that basis I feel like I am making an intervention order without admissions, Your Honour.

47      HIS HONOUR:  No, it is something along those lines.

48      MR GUMBLETON:  But, yes, I think that is the range I was given.

49      HIS HONOUR:  Yes, okay.  Look, it is an ag burg and there are very serious consequences to the complainant so I have got no trouble.  I will say that but for the plea of guilty it would have been a sentence of five years with a minimum term of three, and I add for the record, that that is intellectual because I have no doubt this man will never be granted parole again.  So in that circumstance I may have had to reconsider it but that is an indication to him as to the value of his plea and what he has done since.

50      All right, we will see you in April.  You have got to print it off, do you not?  Yes.  That is all right (indistinct) he has got to print it off.  That order does not start today, does it?  It starts - no, it does not start today.

51      MR GUMBLETON:  On his release, yes.

52      MR McWILLIAMS:  21st.

53      HIS HONOUR:  It starts on the 21st and ends on 21 February 2015.  All right, you want to get Mr Gumbleton to sign that.

54      MR GUMBLETON:  Thank you, Your Honour.

55      HIS HONOUR:  All right, that is your signature, Mr Morgan.  All right, the CCO is made.  All right, you have got a lot of people can help you, okay.  No one wants you banged up effectively for the rest of your life, all right.  You can look in the courtroom.  You have got people who care about you and reckon you can do it, all right.  So if people like Keith, if you are in strife and it is not going well, talk to him.

56      OFFENDER:  Yes (indistinct).

57      HIS HONOUR:  I can tell you this.  There have been three great Keiths in the last hundred years, Keith Miller, the cricketer, Keith Richards, the guitarist, and Keith Randall, the black fellow.

58      MR GUMBLETON:  Legends.

59      HIS HONOUR:  Legends, all legends, yes.  I am serious.  I know this is really offending.  That lady is going to live with this for the rest of her life, okay, so you understand how serious all this is, but no one wants you to fail, you have got people who will give you a hand.  Use them, all right.  Okay, we will see how you go and see you in April.

---