DPP v Morley Corrin [2016] VCC 1559

Paragraphs 8 to 11 of the Crown opening state particularly your role in

Charge 1, kidnapping. I quote, "For the purpose of enforcing payment of the debt, Patris engaged Morley-Corrin and St Mart to capture Findlay and bring him to Patras' house at 16 Georgetown Way, Officer, where he lived with Whitbourne.

1. "On 13 May 2015, Findlay was lured to a park in Cranbourne and made by Morley-Corrin, whom Finlay knew, and St Mart to get into a car belonging to Patras.
2. "During this episode, St Mart also punched Finlay in the face. St Mart and Morley Corrin then took Findlay to Patris and Whitbourne's house at Officer. St Mart was the driver. Patris and Whitbourne were home when Findlay arrived and was taken inside by St Mart and Morley-Corrin. He was quizzed and told to write down names and amounts owed et cetera for repayment."
3. After communication with Patris, Brett Audsley and his nephew, Ben Johnson, came to the house. They arrived at about 2.40 pm. With them was an associate of Findlay named Stephen Hurley. It is apparent that he also owed money. He has not been charged.
4. It had been or was decided that Audsley and Johnson take Findlay to Traralgon to collect moneys. Driving Patris' motor vehicle, a Statesman, they set off at about 3 pm. Paragraphs 14 and 15 of the Crown opening state as follows. "Findlay was forced to travel with Auddley and Johnson to Traralgon in order to collect moneys owed at approximately 3 pm. He was made to get into Patris' white Statesman to be driven to Traralgon. However, the trip was aborted about halfway due to Audsley's and Johnson's suspicions that Findlay was attempting to contact people on his phone and suspicions concerning possible surveillance.
5. "The car was stopped. Findlay was assaulted by Audley and Johnson, had a loaded gun pointed at him by Audley, accompanied by threats to be killed because he was setting them up. He was also searched and personal items taken from him - jewellery and phones."
6. You are not charged nor to be sentenced for what happened on the Traralgon trip. It is, however, a relevant background or context to the offences of which you are guilty.
7. It seemed to be the agreed position and, in any event, I find that your commission of Charge 1, kidnapping, ended at the point you brought Findlay to Officer. Your further involvement in events makes out Charge 2.
8. Upon the return of Audsley, Johnson and Findlay to Officer at about 4 pm, Findlay was taken to a garage, tied, gagged, a balaclava placed over his head. He was punched, kicked and threatened by Audsley and Johnson in the presence of Patris. He was taken into the house and further assaulted.
9. A man named Marino came to the house and he assaulted and threatened him.
10. Neither you nor St Mart were directly involved in these things.
11. There was a deal of submission at plea about when you two left. I find that you left by at least 4.30, perhaps earlier at 3 pm. St Mart left with Patras at about 5 pm.
12. More significant than the timing of it, I find, that you were not active after bringing Findlay to Officer, prior to the Traralgon trip, in the physical mistreatment and intimidation of him. Your role as to the offence of false imprisonment was your presence, availability and willingness to be called upon; thus maintaining Finlay's imprisonment in its circumstances and for its purpose.
13. After Patris left, Findlay was kept at the premises by others. Police who had been conducting surveillance throughout the day surrounded the Officer premises at about 7 pm and arrested persons there not long after.
14. Nathan Findlay was treated for his injuries. The Crown summary states "bruising, lacerations, bleeding, swelling to the head and face, sore and bruised back, chest and redness." There is little doubt that he suffered great and developing fear over the day. He has not made a victim impact statement.
15. St Mart was arrested with Patris at about 9.30 pm. As stated earlier, you, Morley-Corrin, were arrested in Queensland in October.
16. You, Morley-Corrin, are a 27-year-old man presently placed in remand custody awaiting this sentence. You are the oldest of three children. Your family has resided in Queensland since 2013 and, upon release from prison, you plan to re-join them.
17. Your parents separated before you were born. Your mother re-partnered but separated again when you were 12. At school, you did not complete Year 12. I am a bit troubled by that. I think that might understate it. But you might - you can correct me later, Mr Backwell, if it is important.
18. MR BACKWELL: Yes, sir.
19. HIS HONOUR: You left home at about 14. You have worked, although not consistently, in labouring jobs. You have, without qualification, developed experience in the plumbing trade.
20. Your mother's letter to the court describes the instability of your early life, featuring the lack of support of your natural father, mental illness of your stepfather and difficulties at school, such as bullying. She describes your remorse, regret and assistance to her.
21. You boxed as an amateur from 12 to 17. That seems to have led to your interest and involvement in martial arts.
22. I was told that you began using drugs and particularly have used methylamphetamine since 2013. You seem to have become entrenched in that culture. It was in such a context that you knew your co-offenders and came to participate in this offending.
23. You had known Nathan-Finlay over a number of years - originally not, I was told, in a drug context. That you knew him and played the role of luring him to the Cranbourne park, utilising a woman who seems to have been a friend of his, is a significant matter adverse to you.
24. I would also find that your boxing and/or martial arts background was a factor in recruitment of you and your role
25. The criminal record filed with your indictment states five prior court appearances between June 2009, when you were aged 19, and March 2015. They are offences of violence including what seem two periods of custody for causing serious injury and causing injury and drug convictions. There are two convictions for trafficking.
26. In March 2015, you received a community corrections order for that. Subsequent to this offending, you were re-sentenced for breach of that community corrections order and, in late 2015 to early 2016, served a sentence of 90 days.
27. Accordingly, you have been in custody since your October 2015 arrest. Given that sentence, you have served 275 days of pre-sentence detention related to this matter.
28. Mr Backwell made the point that you have used that custody time well. You work in horticulture and teach boxing. Given your family now lives in Queensland, you have suffered some isolation. Your partner visited, but that relationship ended in September.
29. I had intended at this point, had St Mart been on time, to deal with his personal history. I will not do that now.
30. One of the difficulties that has been caused by his late attendance is that I have prepared reasons relating to the sentence of both and I have attempted to apply parity between the two. So it may be necessary for me to just state in this sentence, the personal history of

St Mart which is not directly relevant to you but I think may be necessary for a proper understanding of what I decide.

31. Joshua St Mart is 33 years of age. He has served 223 days of remand custody until granted bail in December 2015. That bail is strictly conditioned including a daily curfew between 9 pm and 6 am.
32. He lives with his father. His only sibling and brother died in 2002 at 22 years. He was born and raised in Melbourne. His parents separated, I was told acrimoniously, when he was 14. He has a good relationship with both. His mother is in poor health, suffering a heart disease. He left school at about 15, Year 9, and commenced but did not complete a tiling apprenticeship. He has since also begun an apprenticeship in bricklaying. That ran for about two years. He continues to work in that trade. He has resumed that on bail. He chose to leave both apprenticeships to work for better money.
33. He was in a relationship with a young woman for 14 years. That ended in 2013. He has two children aged 14 and ten and has regular contact. His present relationship, which is two years old, has suffered the stress of these proceedings. Its present status is not clear.
34. He started using drugs in mid-teenage. Leading to and at the time of this offending he was - in Mr Gwynn's words - significantly addicted. He smoked methylamphetamine daily and also used prescription drugs and the substance, GHB. He knew Patris and other co-offenders in that context although, it was said, not well. I was told that it was not a close association with you, Morley- Corrin. His bail also prohibits association with co-offenders.
35. Mr Gwynn, for him, stated that he does not now use methylamphetamine but has battled with cannabis use over time. He appears to have used his time in remand in a rehabilitative way. The tendered letter of Diane Salewski of Prison Fellowship Australia supports this. Medication for depression assisted him in prison.
36. His criminal record filed with the indictment states ten prior court appearances between September 2002 when he was 19 and August 2014. I note there is some distortion in that given, on my interpretation, three appearances relate to non-compliance with prior orders. There are offences of dishonesty and drug offences. A significant number are for driving offences. There are offences of violence, including recklessly causing serious injury in 2004. He has served prison sentences.
37. This was to be addressed to both of you so I address it to you.
38. This was serious offending. You were involved in a quite sinister, ongoing episode. On instruction of Patris, you initiated and, in so doing, committed the crime of kidnapping which attracts a maximum sentence of 25 years. You continued involvement albeit somewhat passively into the period of Nathan Finlay's false imprisonment.
39. You are to be sentenced for your individual actions; but, as raised in the plea, there must be some reference to the overall enterprise you assisted. During that, Findlay was significantly injured and suffered, I have no doubt, great fear. Your offending occurred in the dark context of drug trafficking.
40. Both you and St Mart have a significant criminal history. In such circumstances, the sentencing considerations of deterrence - both specific and particularly general deterrence - your moral culpability, the need to sentence in a way to state condemnation of what you did and to impose proportionate punishment are important. There must be sentences of imprisonment.
41. I also take into account factors which go to moderate that sentence and, in the case of St Mart, affect the structure of sentence. As to you, Mr Morley Corrin, such matters include the following. (1) Your plea of guilty and cooperation - I accept that you are remorseful. (2) Your personal history and circumstances, (3) The prospects for your rehabilitation must be considered with caution. As stated, you have a significant criminal history. However, I do not discount such prospects. You have family support when you return to Queensland and work capacity. You have spent considerable periods in Queensland since late 2013, have worked there and, I was told, not offended. You can return to that work.
42. The benefit of that may to some extent be compromised by the fact of you leaving for Queensland very soon after this offending and of course, after the arrest of others. Mr Backwell put a component of family context to that. Your sister was having a child. I do not accept that this offending and the arrest were not the main reason for your leaving.
43. However, I bear in mind that you had lived with family there before and the benefit of living there upon release to your chances of rehabilitation remains.
44. Mr Backwell argued for a so-called straight sentence that would require my total sentence to be less than two years. Regrettably, after careful and somewhat anxious consideration, I have decided that such a sentence would not meet the requirement of being proportionate to the seriousness of offending, even given matters raised favourable to you.
45. I shall impose a head sentence with a minimum term. Parole release to Queensland will be a matter for the Parole Board. I am not entitled to consider the prospects of that. Perhaps ironically, the minimum term will be less than two years. I am obliged to impose what I see to be the proper and proportionate head sentence.
46. I am obliged again, I think, because of the need to compare sentences in a difficult situation to state what would be stated to Mr St Mart.
47. I note that Mr St Mart is sitting in the court now so I will address him in the second person.
48. As to you St Mart, I have taken into account moderating factors which include the following. (1) Also, your plea of guilty and cooperation. I also accept that you are remorseful.
49. (2) Your personal history and circumstances. This should include as raised at plea, the fact that my sentence will mean that you return to custody after about ten months on bail release. I see this is a particular hardship which should also go to moderate your sentence.
50. (3) Your prospects for rehabilitation are also compromised by your criminal history. However, similarly to Morley-Corrin, I do not discount them. You have support, work capacity and have coped well strictly conditioned bail. Such prospects will heavily depend on how well you manage your drug dependency.
51. Mr Gwynn, for you, St Mart, raised at least implicitly the question of parity. It is also a consideration in your case, Morley-Corrin.
52. In my view, argument for strict parity with the sentence I have imposed upon co-offender Andrew Marino cannot be properly sustained. The differences were raised at your plea hearing, St Mart, and include his more limited role in things and that he did not face sentence for the particularly serious crime of kidnapping. A period of imprisonment beyond what you have served is necessary to meet the relevant sentencing purposes.
53. In your case, St Mart, I am persuaded that I should impose a lesser term than otherwise with the additional punishment of a community corrections order. You have been found suitable.
54. As to parity between you two, that is St Mart and Morley-Corrin, I have ultimately come to the position that there is no major difference in the relevant circumstances of your cases.
55. For example, purely arithmetical comparison of your criminal record is not really to the point. Morley-Corrin, the circumstances of your involvement - Mr Slim raised the fact that it was you who lured Finlay to the park - are arguably more serious. However, the differences between you end up being marginal.
56. The major difficulty of comparison in this case is that, given your circumstances, Morley-Corrin, you do not seek a community corrections order in addition to imprisonment.
57. I have done my best to apply parity in the face of the necessary different sentencing structures. The comparison becomes markedly subjective and somewhat elusive.
58. Stand up, Mr Morley-Corrin, I am going to sentence you now.
59. I sentence you as follows:
60. On Charge 1 - kidnapping, you are sentenced to two years and eight months' imprisonment. On false imprisonment, to 12 months' imprisonment. I direct that four months of the sentence on Charge 2 be cumulative upon the sentence for Charge 1. That is a total effective sentence of three years.
61. I set a minimum term before eligibility for parole of 18 months. I declare - this may need to be corrected - 265 days of pre-sentence detention.
62. MR NANKIN: Two hundred and seventy-five, I believe, Your Honour.
63. HIS HONOUR: Sorry?
64. MR NANKIN: Two hundred and seventy-five.
65. HIS HONOUR: Thank you. I think I did say that, 270 - yes.
66. MR NANKIN: You did say that earlier.
67. HIS HONOUR: Yes, 275 days of pre-sentence detention.
68. I indicate that had you not pleaded guilty, I would have imposed a sentence of five years with a minimum term of three years. What are the other orders that - sit down please. What are the other orders that I need to make in relation to Mr Morley-Corrin before he is taken
69. MR NANKIN: There are no ancillary orders sought in relation to Mr Morley- Corrin, Your Honour.
70. HIS HONOUR: All right. Mr Morley-Corrin can be taken into custody.
71. MR BACKWELL: Your Honour, before that happens, he did not finish Year 8, not Year 12.
72. HIS HONOUR: Thank you. I obviously wrote it down incorrectly. Yes, thank you. Mr Morley-Corrin can be taken into custody.
73. VOICE (from body of court): So three years, yes?
74. HIS HONOUR: Sorry?
75. VOICE: Three years?
76. HIS HONOUR: Three, minimum term of 18 months.
77. VOICE: (Indistinct words.)
78. HIS HONOUR: Yes, you are excused.
79. MR BACKWELL: Thank you, Your Honour.