DPP v Morris [2016] VCC 2087

Lilsa Jade aged nine and Araminta Lael aged five. Tragically, Renee died following your arrest on 26 April 2016. She died as a consequence of a previously undiagnosed heart condition.

19. Renee had earlier left Victoria to establish herself in Queensland and it was intended that you would be reunited with her at some time. Since her death, you have travelled to Queensland and have taken up the role of sole carer of the two young children.
20. I have had regard to your previous working history. You have got a good work history in terms of having been usefully employed as a carpet cleaner over many years, working as a floor technician and also working in an office. In addition, you have a real passion for music, which you have encouraged through teaching your daughters.
21. I have had regard to the mitigating factors that were put forward on your behalf by Mr Madden. I am satisfied that there is a unique combination of features in your case, which leads to the conclusion that a Community Correction Order is an appropriate disposition. I have had regard to the following - :
    1. You are a first time offender. You have no prior criminal history and there is nothing pending. You are aged 43 and you are entitled to have your good character taken into account, in your favour, and I do so. I have also had regard to the reference that was provided by Steve Cooke, which supports you being a person who is of good character. He is aware of your troubled family history and background, but he states that you have managed to make a courageous change to break the cycle. He speaks of you as being a wonderful father and he says that you have managed to raise two beautiful intelligent and well-rounded children.
       1. I also have regard to the fact that you entered an early plea of guilty at committal mention on 3 August 2016, once suitable charges were identified. The prosecution accepts that the plea was entered at the earliest stage and that you are entitled to a full discount on your sentence. I accept through your plea of guilty, that you have facilitated justice. You have saved the state the expense and unnecessary inconvenience of a trial.
       2. I accept that there is remorse evidenced by your early plea of guilty, but also through your cooperation with the police and the fulsome admissions made at the time of your arrest in the formal record of interview.
       3. I consider you have excellent prospects of rehabilitation. You no longer use Cannabis L. Your arrest has had a salutary effect on you and it is unlikely you will reoffend in the future.
       4. I am satisfied that hardship to your family has been established. It is not normally a mitigating factor, however, I have a discretion to mitigate sentence because of the family hardship where I am satisfied that the case reveals exceptional circumstances. I consider that this is a case where exceptional circumstances have been made out. You are the sole carer who is responsible for the upbringing and care of two especially vulnerable, dependent young girls. They are currently settled and doing extremely well at school at Queensland. I have had the benefit of reading the Coolum State School reports concerning both your daughters and that is a tribute to your care.
22. I have noted the comments of Julie Cattanach who is the sister of your late partner. She has known you for over 12 years and she states that you are a loving and caring father to your two daughters and that is evident from your actions since the death of her sister.
23. She states you have taken on the sole parenting of your girls and you have been wonderful in providing them with a consistent supportive environment in which to grow and their resilience at this time is a testament to your parenting.
24. In all those circumstances, I consider that the hardship requirements as is articulated in the case of Markovic[1] have been made out and that this is a case where the court can exercise its mercy discretion.
25. Finally, I have had regard to the fact that there has been an order made in respect to the property at Sandon under the Confiscation Act 1997. An order was made on 30 August 2016, pursuant to s.16, restraining the property. Charge 1 on the indictment is an automatic forfeiture offence. I have taken into account the fact that you have lost that significant asset as a consequence of your criminal acts, pursuant to s.5(2A)(ab) of the Sentencing Act 1991 (Vic).
26. I noted that there was a net equity in the property of approximately $145,000 after deducting the mortgage and arrears payments. Given your current age, the fact that you are not in the workforce, you have no independent means of support and you are now in receipt of government assistance, that is the carer's pension, it is unlikely that you will be able to amass sufficient funds in the future to be able to secure another home and therefore that loss is significant and I have taken that into account.
27. Overall, I consider that you have excellent prospects of rehabilitation, having regard to your post-offence conduct which I have outlined in these remarks.
28. I have had regard to the guideline sentencing judgment in Boulton and I consider that this is an appropriate case to impose a Community Correction Order, for relatively serious offending that would have previously have attracted a medium term of imprisonment.
29. I note that such an order is intrinsically punitive and having regard to the nature of the conditions imposed, I consider that it will provide for you to take personal responsibility for your own self-management and self-control in the future and ensure that you pursue treatment and rehabilitation and refrain from further offending in the future.
30. I consider that such an order can provide for general deterrence and specific deterrence and in those circumstances, I consider it is an appropriate disposition. I am also satisfied that the Community Correction Order will enable all the purposes of punishment to be served simultaneously, in a coherent and balanced way.
31. In all the circumstances, I propose to make the following order in respect to the charge of cultivate a narcotic plant in a commercial quantity and the charge of possess a drug of dependence -: You will be convicted and placed on a Community Correction Order for three years. Such order to commence from today's date and ending on 19 December 2019.
32. I have already explained to you the mandatory conditions and also the additional requirements, that is supervision and treatment and rehabilitation for drug abuse and dependency and also assessment for mental health treatment and you have indicated that you understand the effect and conditions of the order and consent to it being made.
33. In addition, I have explained to you the consequences of breach of any conditions and you acknowledge that you understood those.
34. I make the Disposal Order sought in relation to the materials that were located at your property at Sandon.
35. Finally, I do not propose to make an order with respect to s.464ZF(2) of the Crimes Act 1958, having regard to the particular circumstances of your offending. There was no issue in terms of the police identifying you as the offender, you freely admitted your involvement in the offending therefore I do not consider that there is any basis upon which an order could be made that warrants the making of the order, so that order will be refused.
36. MR CORDY: Does Your Honour propose to make a 6AAA - no?
37. HER HONOUR: No.
38. MR CORDY: Thank you.
39. HER HONOUR: I do not do that where I am imposing a CCO.
40. MR CORDY: Yes I understand that, Your Honour.
41. HER HONOUR: Yes.
42. MR CORDY: I was just making an enquiry.
43. HER HONOUR: No, no, that's all right. I'm not having a go at you.
44. MR MADDEN: And Your Honour, is there an order in relation to Charge 2?
45. HER HONOUR: Charge 2 is part of the CCO.
46. MR MADDEN: Thank you.
47. HER HONOUR: Yes, you can make one CCO for both.
48. MR MADDEN: I understand that, but is
49. HER HONOUR: Yes, I said both.
50. MR MADDEN: I'm sorry, I missed that.
51. HER HONOUR: Yes. No, that's all right. That covers everything. Can you accompany my associate

Mr Madden and get your client to sign the CCO. Once he's done that we'll get him a copy and then he'll be free to go. But he'll have to make arrangements with Community Corrections about what happens from here on in.

52. It might be a good idea that the matter be the subject of a mention perhaps, just to ensure that the transfer to Queensland takes place.
53. MR CORDY: I beg your pardon, I missed the last part.
54. HER HONOUR: It might be that it's appropriate for a mention to be arranged in Melbourne perhaps, given that it's anticipate it might take until 6 January 2017 for the interstate transfer of the order.
55. MR CORDY: Yes.
56. HER HONOUR: I can make a mention date, just to ensure that that happens. But in the event that it has happened
57. MR CORDY: Yes.
58. HER HONOUR: there'll be no need for the parties to attend.
59. MR MADDEN: Sorry I missed the
60. HER HONOUR: Very well. Corrections Victoria are now going to put in place a request to transfer the order to Corrections Queensland.
61. MR MADDEN: Yes.
62. HER HONOUR: They anticipate that it may take up until 6 January 2017 before that's confirmed. What I was proposing is that there be a mention in the general list in Melbourne on 6 January 2017, just to ensure that that transfer takes place
63. MR MADDEN: Yes.
64. HER HONOUR: and that's all confirmed. In the event that it is, the parties won't be required to attend the mention.
65. MR MADDEN: Yes, I'm just on leave until the 9th, Your Honour, that's my only issue.
66. HER HONOUR: Very well. Well the 9th is a Monday is it?
67. MR MADDEN: Yes.
68. HER HONOUR: So we could make the mention on the 9th then.
69. MR MADDEN: Yes, that'll be fine.
70. HER HONOUR: Very well. What I'll do is I'll ask - is Judge Taft in charge of the General List at that time or is it Judge Morrish?
71. ASSOCIATE: (Indistinct words).
72. HER HONOUR: Very well. What I'll do is I'll list it for a mention before His Honour Judge Taft on 9 January 2017 at 9.30 in the General List. I believe he's the Judge responsible. Just so as to ensure that we get notification from Bendigo Community Corrections Services that the application for transfer to Corrections Queensland has been completed and is authorised, all right?
73. MR MADDEN: Thank you.
74. HER HONOUR: Yes.
75. MR MADDEN: If that occurs, we don't need to appear?
76. HER HONOUR: Sorry?
77. MR MADDEN: If that's occurred, we don't need to appear?
78. HER HONOUR: And if that is the case, I'll just ask that the associate notify the parties to confirm. Once that confirmation is received, it will mean that there'll be no need for the mention.
79. MR MADDEN: As Your Honour pleases.
80. MR CORDY: As Your Honour pleases.
81. HER HONOUR: Very well. I'll make sure that my associate liaises with - is it Patrick Stanton here in Bendigo, CCS? Just to confirm that that's the arrangement, all right. That Patrick is to notify Judge Taft's associate once the transfer has taken place. So has that been signed, the order? It can be copied and provided to Mr Morris. Mr Morris can come out of the dock now. I think that completes the matters for today.
82. (At this stage the court proceeded with another matter.)

[1] Markovic v R [2010] VSCA 105.