DPP v Morgan [2016] VCC 841 (17 June 2016)

County Court of Victoria

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DPP v Morgan [2016] VCC 841 (17 June 2016)

Last Updated: 30 June 2016

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00735

DIRECTOR OF PUBLIC PROSECUTIONS
v
DANIEL TROY MORGAN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2016
DATE OF SENTENCE:	17 June 2016
CASE MAY BE CITED AS:	DPP v Morgan
MEDIUM NEUTRAL CITATION:	[2016] VCC 841

REASONS FOR SENTENCE
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Subject: Criminal law-sentence

Catchwords: Plea of guilty to one charge of attempted armed robbery – planning - use of disguise, in possession of kitchen knife – demand for money – offender aged 33 – very limited criminal history – heroin addict – sole parent of young child – previous good character – awards for bravery after Black Saturday fires – PTSD – offence just above lower range of seriousness – genuine remorse – very early plea with full admissions to police.

Legislation Cited: Sentencing Act 1991

Cases Cited: Verdins v R [2007] VSCA 102, Boulton v R [2014] VSCA 342,

DPP v Durr [2016] VCC 603, DPP v Donahue [2016] VCC 363

Sentence: 2 year CCO ---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy – plea	OPP
	Ms A. McClure – sentence
For the Accused	Ms C. Beissmann	VLA

HER HONOUR:

1. Daniel Troy Morgan, you have pleaded guilty to one charge of attempted armed robbery, which occurred on 2 February this year. You have been assessed as suitable for a community correction order, and I have concluded that, in all the circumstances of this case, a term of imprisonment will not be necessary.
2. The circumstances of the offending are as follows. You planned to rob a milk bar for money to spend on heroin, as you were in the grip of a dependency, and wearing bulky clothes and hooded jacket, you entered the shop in the early afternoon. You had a kitchen knife in your possession. You waited at the back of the shop until a customer left, and then you walked towards the front of the shop, looked around, and retreated to the back of the shop again, where you placed a mask over your face. The mask covered your whole face with two holes cut out for your eyes.
3. You approached the owner, Hui Yang He, who was at the counter, and, holding the knife so it was visible to her, you said "Money, money". The victim told you she did not have any money, and she moved away from you and pressed the alarm button. When the alarm sounded, you left the shop. The victim was in a state of shock, and her son, who had seen you leave the shop, called an ambulance. She was shaking and feeling numb, and she later reported that these symptoms persisted for some time. It is apparent that this was a very frightening experience for her.
4. You were arrested later that day and interviewed, during which you made full admissions, and expressed your remorse and regret, and your sorrow that the victim had been subjected to your actions. You also explained that you had taken large amounts of the drug Valium, which your doctor has prescribed for anxiety in the context of your heroin dependency. You said the Valium had given you "Dutch courage", and that that made the plan for an armed robbery seem like a good idea.
5. You had been feeling an extremely desperate need for heroin for three days, and you had been feeling very sick. You told police "I never thought I'd be the type of person that would try something like this, but I did and I have to cop it". You said you had been using heroin for many years, but only occasionally, and it had not been a problem until after the Black Saturday fires, when your family home had been destroyed, and you and your family had played a significant role in helping other victims of the fires.
6. This brings me to your background. You are age 33, and you were 32 at the time of the offence. You had lived all your life with your family in the house at Kinglake, which was destroyed in the fires on Black Saturday in 2009. On that day, together with your father Raymond and brother Shaun, you helped people who were burned or otherwise in danger, and took them to safety. For your efforts, you each received a medal for bravery from the Royal Humane Society of Australia, bestowed by the Governor General, and a bravery medal bestowed by the Governor of Victoria. The citation for the bravery medal reads as follows, and I quote it in full:

"In the midst of the Black Saturday bushfires, Mr Raymond Morgan and his two sons, Daniel and Shaun, assisted many local people survive the firestorm which struck Kinglake. Driving in the dark and smoky conditions, and passing burnt-out vehicles, the family drove towards Kinglake central. They stopped at a four-vehicle accident which had been caused by a fallen tree. Shaun and Daniel pulled a man suffering from burns out of the vehicle and placed him and his dog into their car. Meanwhile, Raymond also helped several other people who were in shock into the vehicle. With nine people and four dogs in their car, they drove to nearby church grounds where they briefly took refuge. During that time, Shaun and Daniel used the church water tank to provide water to the group, and took off their shirts to provide wet wound coverage for the burnt man. After the church caught fire, Raymond, Daniel and Shaun took the group to a safe house. Raymond and Shaun searched for more survivors, directing a number of people to the safe house. During their searches, the three men had to pass the remains of their own house, which had been destroyed by the fires. By their actions, Raymond, Daniel and Shaun displayed considerable bravery".

7. Clearly, your actions that day constitute a very considerable contribution to the community. Unfortunately, the following day your father suffered a stroke and continues to be unwell. Out of concern for his health, you have not told him about this charge. All the members of your immediate family have worked as carers in the area of disability, but neither you, nor your father or your brother have been able to work since the fires.
8. A report was obtained from a forensic psychiatrist, Dr Shannon Reid, who diagnosed post-traumatic stress disorder with the possibility that symptoms may persist into the long term. It has not been put that this condition affected your judgment at the time of the offending, although Dr Reid considered that your consumption of benzodiazepines probably did.
9. Your counsel, Ms Biessmann, submitted that the fifth limb of the decision in Verdins applies in your case, that because the symptoms of post-traumatic stress disorder are associated with considerable anxiety, you would be at risk of deterioration of this disorder if placed in custody. The prosecution takes no issue with that, and it is a matter to be taken into account.
10. To return to your background, I note that your criminal history is limited to two driving charges in 2010, for which you were fined without conviction. You had an uneventful childhood, and it seems you are close to your parents and brother. You completed school to Year 11 and then worked at the chicken farm where your parents worked. You then worked for several years as a builder's labourer, following which you obtained a certificate in aged care and disability, and worked in that field.
11. You are the sole carer of your five-year-old son, and you are on good terms with his mother, who sees her son regularly. She has written a letter describing you as a dedicated father, and a person of good character in general, as does your brother in his letter.
12. A serious crime such as attempted armed robbery ordinarily warrants a sentence of imprisonment, and will usually be imposed. The maximum penalty is 20 years' imprisonment. It is a crime of violence, notwithstanding the absence of physical injury. The victim in this case was vulnerable, such people are often described as "soft targets", and there is no doubt that in this case the victim was very frightened. You yourself acknowledged that when speaking to the police, and Dr Reid confirmed that in noting your empathy with the victim.
13. You found it hard to accept that you had committed such a crime, as I remarked earlier. Your frank admissions and very early plea of guilty to the charge have expedited the progress of the case through the courts, and you are to be given credit for that in the form of a discounted sentence. Your plea has avoided a trial, and no person has had to give evidence. That amounts to important assistance to the system of criminal justice.
14. In this regard, I should add that you have written a letter of apology to the victim, which has not yet been delivered to her through the informant, but as your counsel said, it could be done. It is consistent with your early expression of remorse, and with that reported by Dr Reid.
15. As to the objective seriousness of this particular example of the crime in question, opinions differ. Ms Beissmann submitted that it sits at the lower end of the range of seriousness, but the prosecution places it close to the middle of the range. In my discussion with counsel, I stated that the degree of planning and the use of the knife place it higher than the lowest end of the range, but when compared with many other similar cases, although all with different circumstances, the brief duration and your relatively quick exit from the shop when the alarm sounded mean that objectively a minimum of harm was done, and so its seriousness can be described as lower than middle of the range.
16. As to the need for specific deterrence, the only risk of further offending would be in the context of your continued abuse of drugs, and failure to address the symptoms of post-traumatic stress disorder. Appropriate treatment for both should be undertaken in the community rather than in prison. Drug treatment in custody may only be available after a long wait because of the demand, and psychological counselling is most unlikely to be available to you there. Treatment and punishment can be provided by means of a community correction order for which you have been assessed, as suitable.
17. During submissions as to an appropriate sentence, I was referred to two sentences imposed by judges of this court dealing with charges of attempted armed robbery. In one, a term of imprisonment rather than a community correction order was imposed^[1], and in the other, the reverse^[2]. In each case, the circumstances were different from the other, and both differed from this case. It is very difficult to use a comparison of cases to arrive at a satisfactory conclusion. I will only add that in the eyes of the law you are not a young man, and the inference is that you should have known better and exercised better judgment. Your remorse and frankness indicate that you knew that very well. That is largely why the risk of you reoffending is so low, and your prospects for rehabilitation are good. That must never be lost sight of, regardless of the age of the offender, because it is so clearly in the interests of the community that you be rehabilitated.
18. In considering the applicability of the decision in the case of Boulton, I also take into account s.5(3) of the Sentencing Act, which states that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Subsection 4 goes on to provide that the confinement of the offender must be avoided unless the purposes of the sentence cannot be achieved in any other way. Of course, an important purpose of the sentence is general deterrence, but it is not the only purpose, and in this case, the broad circumstances to which I have referred, and the burden that imprisonment would likely impose upon you because of your anxiety state justify me in avoiding sending you to prison. Would you stand now please, Mr Morgan?
19. Accordingly, I shall impose a community correction order which begins today and will last for two years. You must perform 100 hours of unpaid community work over six months, and be subject to supervision. You must undergo drug assessment and treatment, and also assessment for any possible mental health treatment. An appointment has been made for you to attend the Greensborough Corrections office, which is at 4/18 Sherbourne Road, Greensborough, next Monday, that is Monday 20 June at 3 pm.
20. I am not obliged to state what sentence I would have imposed if you had pleaded not guilty, but in this case, because I have given you a significant discount for your plea of guilty, you might like to know that otherwise, if you had pleaded not guilty, I would have sentenced you to eight months' imprisonment, with a 12-month community correction order.
21. The prosecution seeks a disposal order in relation to a number of items, is that with consent, Ms Beissmann?
22. MS BEISSMANN: It is, Your Honour.
23. HER HONOUR: All right, and I make that order. Are there any other matters?
24. MS BEISSMANN: No, Your Honour.
25. HER HONOUR: All right, well the order is ready for signature, do you want to have a look at it, Ms Beissmann?
26. MS BEISSMANN: Thank you.

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^[1] DPP v Durr [2016] VCC 603

^[2] DPP v Donahue [2016] VCC 363