The State of Western Australia v Morgan
[2022] WADC 95
•12 DECEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MORGAN [2022] WADC 95
CORAM: PRIOR DCJ
HEARD: 24 OCTOBER 2022
DELIVERED : 12 DECEMBER 2022
FILE NO/S: IND 37 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
CELWYN DENNIS LEE MORGAN
Catchwords:
Criminal law and procedure - Sentencing Act 1995 (WA) s 124E - Declaration that a person is a Serial Family Violence Offender
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 3F
Criminal Code (WA), s 298, s 317, s 338B, s 401(2)(a)
Sentence Administration Act 2003 (WA), s 30, s 57, s 74G
Sentencing Act 1995 (WA), s 4, s 33HA, s 67A, s 76A(1A), s 84CA(1A), s 124E(1), s 124E(1)(a), s 124E(1)(b), s 124E(2)(g), s 124E(4), s 124G
Result:
Application granted
Offender declared a Serial Family Violence Offender
Representation:
Counsel:
| The State of Western Australia | : | Mr M G Hunter |
| Accused | : | Ms C P Brennan |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Aboriginal Legal Service of Western Australia Inc |
Case(s) referred to in decision(s):
Nil
PRIOR DCJ:
Serial Family Violence Offender application
On 14 October 2022, Mr Morgan was convicted after trial of:
(a)one count of aggravated assault occasioning bodily harm;[1]
(b)one count of home burglary;[2]
(c)strangulation;[3] and
(d)aggravated threat to kill.[4]
[1] Criminal Code (WA) s 317.
[2] Criminal Code s 401(2)(a).
[3] Criminal Code s 298.
[4] Criminal Code s 338B(1)(a).
Mr Morgan was also convicted of home burglary following his guilty plea on 10 October 2022.
The victim of each offence was LAL.
Subsequently, the State applied for Mr Morgan to be declared a Serial Family Violence Offender pursuant to s 124E of the Sentencing Act 1995 (WA) (Sentencing Act).
Criteria for a Serial Family Violence Offender declaration
There are several mandatory criteria that must be met before such a declaration can be made.
First, 'a court' must convict an offender.[5] The State and counsel for Mr Morgan agree that Mr Morgan was convicted in the District Court when judgments of conviction were entered on 14 October 2022 for four offences and on 10 October 2022 for one offence.
[5] Sentencing Act s 124E(1).
Second, the offender must have been convicted of a family violence offence. 'Family violence offence' comprises two parts. One relates to the relationship between the offender and the victim; the other relates to the offence itself.
1.With respect to relationship, the offender and the victim must be in a designated family relationship with each other at the time of the commission of the offence. It is not in dispute that Mr Morgan and LAL were in a family relationship at the time of the commission of the offences.[6]
2.The offence must be a prescribed offence.[7] Offences pursuant to s 298, s 317 and s 338B of the Criminal Code are all prescribed offences. Only one is required.
[6] Sentencing Act s 4.
[7] Sentencing Act s 4.
Third, the offender must have, on conviction, been convicted of at least three prescribed offences, with at least three of those offences having been committed on different days.[8] Each offence relied upon in the application must have been committed within a period of 10 years of each other unless the court is satisfied that exceptional circumstances exist that make it appropriate to make a declaration.[9] The State relies on three separate incidents of offending.
1.The offending for which Mr Morgan was convicted of on 14 October 2022. On the written materials provided, Mr Morgan's aggravated assault occasioning bodily harm and strangulation convictions are the only convictions relied upon. The State have not expressly relied on the conviction of aggravated threat to kill. Each offence was committed on 15 August 2021. Only one offence can be considered for the purposes of satisfying the three convictions required. It is immaterial which conviction from that date is used. I will refer to these convictions as the 2021 offences.
2.Mr Morgan's previous conviction of breach of family violence restraining order. This offence was committed on 1 September 2020. Mr Morgan was convicted on 10 September 2020. LAL was the victim. I will refer to this conviction as the 2020 offence.
3.Mr Morgan's previous conviction of aggravated assault occasioning bodily harm. This offence was committed on 16 November 2011. Mr Morgan was convicted on 5 July 2012. LAL was the victim. I will refer to this conviction as the 2011 offence.
Each conviction is a conviction of a family violence offence. Each conviction relied upon relates to offending that occurred within a 10‑year period.
[8] Sentencing Act s 124E(1)(b). There is another pathway towards a declaration being made outlined in s 124E(1)(a). The State relies on s 124E(1)(b) for this application.
[9] Sentencing Act s 124E(2)(g).
The criteria has been satisfied. It is not in dispute that my discretion has been enlivened and I am able to grant the State's application.
Discretionary considerations
Without otherwise fettering my discretion, I must consider:
(a)the level of risk that Mr Morgan may commit another family violence offence;
(b)Mr Morgan's criminal record; and
(c)the nature of the prescribed offences for which the offender has been convicted.[10]
[10] Sentencing Act s 124E(4).
State's submissions
The State predominantly relies on the convictions I have described in its application.
The State also provided details that there have been eight reported incidents of family domestic violence involving Mr Morgan since 2016. Children were present on half of these occasions. Mr Morgan was the alleged perpetrator for each reported incident. Absent further information as to the details of the reported incidents and details of the complainants, I do not give these incidents any weight.
Defence submissions
Mr Morgan opposes the State's application.
Mr Morgan concedes that the 2021 offences are serious. However, it is submitted that they were not premeditated and did not involve a weapon.
Mr Morgan submits that the 2020 offence was not violent. It involved his attendance at a place he was not permitted to be at. It did not involve any interaction with the protected person, LAL.
Mr Morgan submits that facts supplied by the State in relation to the 2011 offence cannot be relied on as an accurate basis for Mr Morgan's conviction. There is no transcript of the sentencing hearing. It is conceded, however, that the penalty imposed was significant, namely a conditionally suspended imprisonment order.
Mr Morgan submits that no reliance can be placed on the State's allegations of reported family violence incidents. As previously outlined, I accept this submission.
In relation to Mr Morgan's criminal record, it is submitted that there were no convictions for violence between November 2011 and August 2021.
Each conviction that gives rise to the State's application involves LAL as the victim. Mr Morgan submits that he has not exhibited any violent tendencies in any other relationship he has been in.
Mr Morgan submits that the consequences of granting the State's application would be unduly burdensome. Upon his release from custody, Mr Morgan intends on returning to Wyndham, a remote town in the Kimberley. There are consequences for an offender once a declaration is made, including:
(a)the disqualification of holding a firearms license;[11]
(b)the presumption against bail if an offender is accused of another family violence offence;[12]
(c)a court sentencing an offender for a further family violence offence must consider whether to require electronic monitoring of the offender before sentencing to some community‑based dispositions;[13] and
(d)a requirement for the Prisoners Review Board to give specific consideration to imposing conditions for the electronic monitoring of the offender when considering their early release.[14]
[11] Sentencing Act s 124G.
[12] Bail Act 1982 (WA) sch 1 pt C cl 3F.
[13] Sentencing Act s 33HA, s 67A, s 76A(1A) and s 84CA(1A).
[14] Sentence Administration Act 2003 (WA) s 30, s 57 and s 74G.
Disposition
I am satisfied that it is appropriate to exercise my discretion and grant the State's application for the following reasons.
1.The State Attorney General, Mr Quigley, during the second reading speech for the Family Violence Legislation Reform Bill 2019, the Bill that introduced into law Serial Family Violence Offender declarations, stated:[15]
[15] Western Australia, Parliamentary Debates, Legislative Assembly, 27 November 2019, 9432 (Mr J R Quigley, Attorney General).
This bill is comprehensive. It puts victims of family violence first. It introduces measures to improve the safety of victims of family violence, hold perpetrators of family violence to account, and makes it easier and less traumatic for victims to obtain protection from violence.
It is evident that Parliament intended for such declarations to be burdensome and restrictive for offenders.
2.Mr Morgan's 2021 offences are a significant escalation in seriousness relative to his previous convictions. In my view, this increases his likelihood of committing further family violence offences.
3.Although I can only take into account family violence offences that occurred on different dates for the purposes of considering whether the State's application satisfies the mandatory criteria for making such a declaration, I am able to consider Mr Morgan's criminal record more broadly. He committed three different family violence offences on 15 August 2021 during the course of a home invasion against LAL.
4.There are striking similarities between Mr Morgan's 2021 offences and his 2011 offences. Mr Morgan received a high sentence for one count of aggravated assault occasioning bodily harm. This is particularly the case given that sentences for domestic violence have firmed up in recent years. Mr Morgan attacked and strangled LAL for both the 2011 and 2021 offences. She required hospital treatment on both occasions. I consider there is a real risk that, without adequate protection, Mr Morgan may offend against LAL in a similar manner again.
5.Notwithstanding the fact Mr Morgan's 2020 offence was a relatively minor breach, breaching a family violence restraining order is considered to be serious by Parliament. This is reflected by the increase in penalties for such breaches introduced by the Family Violence Legislation Reform Bill 2019.
6.Mr Morgan submitted that there is no evidence of domestic violence against any of his other previous partners. In my view, this only supports the requirement for a declaration to be made. LAL has been the victim of several family violence offences perpetrated by Mr Morgan. The requirement for protection of LAL is a significant factor.
7.I accept Mr Morgan's submission that the consequences of granting State's application may be generally more burdensome for Mr Morgan than would be the case for an offender who lives in the metropolitan area. However, should Mr Morgan return before the courts, the magistrate or judicial officer dealing with him will maintain their discretion. The consequences for a declaration being made impose mandatory considerations but not outcomes. In the circumstances of Mr Morgan's case, it may be appropriate to, for example, consider electronic monitoring an unnecessary requirement for any community‑based sentencing disposition.
I grant the State's application. I order that Mr Morgan be declared a Serial Family Violence Offender.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
12 DECEMBER 2022
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