DPP v Mort

Ms Lexi had separated around a month prior to your offending after a relationship which had lasted around 2 to 3 years. You have one child together, Ben,[3] who was aged around 1 year and 10 months at the time of your offending. 5. On 6 December 2023, a full exclusionary family violence intervention order (FVIO) was issued at the Werribee Magistrates' Court against you. Ms Lexi and Ben were the protected persons. 6. You were served with this order on 8 December 2023. 7. On 13 January 2023 you were subject to a firearm prohibition order. 8. On 24 March 2024 at about 8 pm you picked up Ms Lexi to go shopping in your car. Instead of going to the local supermarket, you told Ms Lexi that you wanted to go for a drive, and you drove to the Point Cook town centre. This is part of

Charge 2 which is the contravention of the family violence order. 9. You had been to Ms Lexi's house the previous day and had found out she had planned to go out on a date with another man, which you made her cancel. In the car you started an argument about her use of Snapchat. 10. At the town centre you were approaching a pedestrian crossing. Ms Lexi told you to slow down and to stop because you were driving too quickly. You pulled up at the very last minute, avoiding a collision with 3 pedestrians, a man and 2 women. They made their displeasure known and you retaliated by producing a firearm from the left-hand side of the driver's footwell. (Charge 1) 11. Ms Lexi describes the firearm as being 30 to 40 centimetres in length with green speckled rubber bands on it. She had previously seen you load this firearm with gold bullets with green tips, but she had not seen you use it. 12. The male pedestrian pointed his finger at you, and then you pointed the firearm in his direction. When the pedestrians saw the firearm, they walked away. You told Ms Lexi that you were going to shoot the male pedestrian, and she would be your accomplice. CCTV footage from the pedestrian crossing shows that you remained there for about 10 seconds rummaging through your car. Ms Lexi believed that you intended to shoot the male pedestrian. 13. You drove off and continued to abuse Ms Lexi about her Snapchat account. You pulled up at an intersection and Ms Lexi attempted to get out of your car. You pulled her back by her jumper and yelled at her 'what the fuck are you doing, get the fuck back in the car' and you drove off. (Charge 3) 14. You drove on the Princes Highway, still abusing Ms Lexi, telling her she was a dog who wanted to see you back in prison. You repeatedly told her she had ruined your life, and that she was going to die. You screamed at her, 'I am going to bash you and leave you in ditch'. (Charge 4 - threat to kill). You repeatedly told Ms Lexi that you would both die. She believed that you would carry out this threat and that she would die. 15. You turned off the Princes Highway at an exit where you came to a complete stop at a dead-end where you turned your car off. You took out your firearm, you pointed it at Ms Lexi's head, and you said, 'the safety is off' (Summary charge 9).

Ms Lexi ducked her head down away from the barrel of the gun. You were startled by the approach of another car and put the firearm away and started your car and drove off. 16. In an attempt to escape, Ms Lexi asked you to stop at a McDonald's for a hot chocolate. You agreed and pulled up at the Werribee Ampol Foodary carpark. You began checking Ms Lexi's phone, looking at her Instagram account and berating her for following males. Ms Lexi got out of the car and ran into the store. She was visibly distressed, and staff called emergency services. 17. You got out of the car and began waving her phone around and demanding she return to the car. When she refused, you threw her phone to the ground and drove off. 18. You were arrested two days later at an address in Albion. Police located a single ammunition round in your left shorts' pocket, and a single spent shell casing ammunition round was located at the front of the premises. 19. Located in the kitchen and living area were: * A loaded centre fire rifle .204 Ruger. The safety switch was off. * A rifle loaded with a magazine containing four ammunition rounds with green tips matching Ms Lexi's description of the firearm used in the incident two days prior. * A sheath attached to the rifle containing three ammunition rounds. 20. You were transported to the Sunshine police station where a small Ziploc bag containing methylamphetamine was found in your jumper pocket. (Charge 7) 21. You were found to be unfit to be interviewed. You told police you had not slept in seven days and had consumed methylamphetamine. 22. You were interviewed on 27 March 2024, and you remained mute throughout the interview. 23. This matter resolved on 24 January 2025, and you were arraigned in this court on

20 February 2024. There was a contested committal at which Ms Lexi and the informant were cross-examined, although all that occurred by way of cross-examination of Ms Lexi was that she was asked to confirm that she had nothing further to add to her statement. 24. Yours is not an early plea but it is a plea which carries utilitarian value and demonstrates that you have accepted criminal responsibility for your actions. You are entitled to an appropriate mitigatory discount. 25. Ms Lexi has made a victim impact statement which she read out in court at your plea hearing. 26. She describes her anguish at having been treated this way by you, the father of her son. She says since your offending she is 'barely holding things together'. She says she feels broken and disconnected and has to take antidepressants to manage her anxiety and depression. She now has to bring up her son up as a single parent and she says she fears that her son will struggle growing up without a father. She says, 'I don't feel safe in the world anymore. The sense of security I once had is gone, and now I live with constant fear and hypervigilance. It's like the world has become a threatening place and I never truly feel at ease'. 27. Turning now to your personal circumstances. 28. You were born in June 2001. You are 23 almost 24 years old. 29. You were born in Hamilton, New Zealand. Both your parents are Australian. You have indigenous ancestry on your mother's side. 30. Your mother, Kate Junson,[4] gave evidence at your plea. She said you left New Zealand when you were seven years old to live with your father in Darwin. When you were living with your father, she re-partnered and had three more children. You returned to New Zealand when you were 13 to 14 years old and then the family all relocated to Australia in 2015. 31. She said you were diagnosed with attention deficit and hyperactivity disorder (ADHD) when you were living with your father in 2008 and put on Ritalin. When you came back to live with her in New Zealand, she described you as a changed person. She sought alternative treatments and stopped you taking Ritalin. She says she struggled to find you adequate medical care. She said she could discipline you when you were a child, but it was a struggle. She says your stepfather physically chastised you. She says you went to school until Year 9 or 10. She says during your childhood you had to regularly change schools. She says you are able to read and write. 32. She says prior to being incarcerated you lived with her and that she had seen you when you were using drugs. 33. Ms Junson says she visits you in custody. She says she tries to get you support from Aboriginal support services but when you are moved in the prison system you lose this support. She says that upon release you will go and live with your father who is still in Darwin. She says you accept sadly that you will not be able to see your son in the future. 34. Your father, Nelson Mort,[5] wrote a reference, confirming that you can come and live with him in Darwin and that he can get you employment in the oil and gas industry upon your release. 35. There was also a reference from an Aboriginal Employment Pathway Mentor at the Wadamba Prison to Work Program. He says you were referred to the service on 5 September 2024 and that the service will support you, post-release. 36. A psychological report of Dr Aaron Cunningham, psychologist, dated 13 May 2025 was tendered at your plea. 37. Dr Cunningham assessed you on 2 May 2025. 38. You told Dr Cunningham that you grew up in a violent environment in New Zealand. You said your cousins were in gangs. You said your father left when you were young and that you did not have a close relationship with your father but that recently you have started to connect. You also describe a poor relationship with your mother and stepfather growing up. You reported having experienced physical and sexual abuse. 39. You said you looked forward to a better life in Australia when you moved here in 2015. You said your mother abandoned you when you were aged about 15 or 16 years old, and you had to steal food to survive until you found where your mother was living. You moved back in with her, but the family was evicted. At the age of 17 you moved in with a girlfriend. You experienced periods of homelessness and you lived in your car. 40. This relationship lasted a year. You were subject to a family violence intervention order in respect of that partner. Your other significant relationship was with Ms Lexi. 41. You have only ever had sporadic employment. 42. You have used MDMA and cannabis since you came to Australia. You were addicted to cannabis. You started using methylamphetamine and became addicted. You told

Dr Cunningham you used as much MDMA, alcohol, cannabis and cocaine as you could obtain. You have experienced withdrawals in custody. You said you have had some telephone drug and alcohol counselling, but you would like 'in-person' treatment. 43. You told Dr Cunningham you were diagnosed with ADHD at the age of 10 and that you were expelled from school in Year 9. Dr Cunningham conducted testing which placed you in the average range for intelligence, but your scores indicated a verbal learning disorder which was consistent with your reported history of childhood trauma, and a diagnosis of ADHD and school-based learning problems. 44. Dr Cunningham assessed you as a high risk for future violent offending. 45. On your offending, you told Dr Cunningham that you and your partner argued about seeing other people. You expressed no remorse. 46. Dr Cunningham gives the opinion that you meet the diagnostic criteria for post-traumatic stress disorder (PTSD) referrable to your history of childhood disadvantage and trauma. He says, 'in my opinion this background impaired his moral, psychological and emotional development and contributed to the formation of anti-social personality traits'. He refers to your poor and unsupportive relationships with your parents and stepfather and your exposure to sexual abuse and gang violence. 47. Dr Cunningham says you are prone to paranoia and mistrust of others. He says your abuse of drugs would exacerbate these feelings. He says ceasing drug abuse would be the main factor in decreasing your risk of reoffending and that you would benefit from treatment. He gives the opinion that incarceration would aggravate your symptoms and that your untreated PTSD would increase your risk of violence in the community. 48. Certificates were tendered demonstrating you have completed a number of vocational and lifestyle courses while in custody. 49. You have a criminal record mainly consisting of appearances in the Children's Court. In the adult jurisdiction you have an appearance in this court on 12 April 2022 appealing a Magistrates' Court sentence on charges of being a prohibited person in possession of a firearm, assault with a weapon, being a prohibited person possessing an imitation firearm, theft, unlicensed driving and possession of cartridge ammunition. The appeal was allowed, and you were sentenced to a total effective sentence of 11 months' imprisonment in combination with an 18-month correction order. 50. I am told you were a prohibited person at the time of this offending because you were subject to a personal safety order in respect of your previous intimate partner in October 2017. 51. You breached your community correction order by further offending in May 2024 for which you were sentenced to 42 days' imprisonment, and you have one further matter involving two charges of robbery and one charge of threat to destroy property for which you received a sentence of 45 days' imprisonment in the Sunshine Magistrates' Court on 12 December 2024. 52. Turning now to the submissions of the parties. 53. In mitigation of sentence, Mr Pearson of counsel relied upon the following matters. 54. First, your plea of guilty had utilitarian value and demonstrated an acceptance of criminal responsibility. He further submitted that 'although not particularly starkly drawn the court should still proceed on the basis that the accused is remorseful for offending the way he did'. 55. Secondly, at 23 you are still a youthful offender, and your rehabilitation should be prioritised. Mr Pearson submitted your criminal history although relevant is limited. 56. Thirdly, you are not an Australian citizen and although the issue of potential deportation is complicated given your indigenous heritage, I should have regard to the anxiety you experience given the uncertainty around your right to remain in Australia. 57. Fourthly, that your deprived upbringing enlivened Bugmy[6] considerations. 58. Fifthly, on the basis of Dr Cunningham's report and opinions Verdins[7] limbs 5 and 6 are engaged in sentencing you. 59. On your rehabilitation, Mr Pearson submitted that you have the support of your mother and father and are motivated to rehabilitate. You are doing as well as you can in custody, taking courses and seeking to gain insight into your Aboriginal heritage. 60. Mr Pearson submitted the incident involving Ms Lexi was of short duration (around an hour), she did not sustain injury and it was not premediated. He acknowledged it was aggravated by being in breach of court orders. He submitted it was a mid-range example of serious offending. 61. He submitted all the various sentencing objectives could be met by a combined sentence of time served with a correction order, or further and alternatively by a sentence of imprisonment involving a head sentence and a non-parole period in the range of time served. 62. Ms Paganis on behalf of the Director of Public Prosecutions submitted that your offending was objectively serious and your moral culpability high. She submitted the following features were relevant to my assessment of the objective gravity of your offending. 63. Your offending was against your former intimate partner and the mother of your child. It occurred when you were subject to a family violence order. She submitted the offending was premeditated and was of some duration. It involved a firearm and was in flagrant breach not only of the family violence order but also the prohibition order on your possession of a firearm. 64. She accepted there was some application of Verdins[8] limbs 5 and 6 and that Bugmy[9] principles were enlivened in sentencing you. 65. She submitted, notwithstanding matters in mitigation, the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period. 66. Turning to my own assessment of the objective gravity of your offending and your moral culpability. 67. In my view, your offending against Ms Lexi constitutes a very serious example of intimate partner violence. In the first place it involved a firearm. I cannot be certain beyond reasonable doubt that the firearm was actually loaded, but what is certain and was undisputed at your plea, is that Ms Lexi having seen you load this weapon in the past, believed it to be so. I have no doubt that she feared on this occasion that you intended to take her life. 68. I accept the defence submission that notwithstanding the presence of the firearm in your vehicle this incident was not planned. However, as has been observed by the courts:

'a lack of planning at the outset may be accepted but it is difficult to see how it could mitigate an offence which was typified by irrational jealousy brought about by insecurity and manifested by the taking of control, unlawful detention and physical assaults of the victim and threats to kill her.'[10]

1. Your offending was in breach of two court orders and was of some duration.
2. There is no charge in respect of you pointing your firearm at the pedestrian, but in my view this evidence about your behaviour is indicative of your high level of aggression and frankly terrifying and intimidatory behaviour, and which of course must have added to Ms Lexi's growing fear which must have culminated when your pointed the firearm at her head in a secluded location.
3. In respect of your possession of the firearms on the 24 March 2024, and later found at your residence, it was the joint submission of the parties that I should not be satisfied that you possessed these weapons for unrelated criminal offending, and I will sentence you on that basis. However, in respect of both charges, your possession of firearms in breach of a prohibition order is serious offending. On 24 March 2024 you produced the firearm in a public place and used it to menace pedestrians. In respect of Charge 6, you were in possession of two loaded firearms.
4. I regard your offending in all its manifestations as objectively serious and your moral culpability as high.
5. Turning now to the application of sentencing principles.
6. I have already stated that you are entitled to an appropriate mitigatory discount for your plea of guilty and that by virtue of your plea you accept criminal responsibility for your actions. I stop short of making any finding of full and insightful remorse of your part. You said nothing to indicate remorse to Dr Cunningham, nor have you presented any material to the court which would allow me to conclude that you are remorseful.
7. On the basis of evidence given by your mother, and the report of Dr Cunningham, I find that your moral culpability is moderated pursuant to Bugmy[11] principles in a general sense, in that I find that your offending can be explained to some extent by your early experiences of violence and neglect which have contributed to your anti-social behaviour and have left you susceptible to drug use, which in accordance with Dr Cunningham's report, is a contributory factor to your anger and aggression.
8. However, weighted against these considerations is the objective seriousness of your offending and the significant weight which must be given to the sentencing principles of specific deterrence and community protection in sentencing you.
9. You remain in my view a high risk of reoffending if you do not address your drug abuse and anger and, given the entrenched nature of your addiction, you remain vulnerable to relapse upon release from custody.
10. I take into account there is some uncertainty about your immigration status, and this will be a source of anxiety for you in custody.
11. Verdins[12] limbs 5 and 6 apply in your case. Your mental health conditions make prison a difficult place for you and there has been some worsening of your mental health in custody. Having said this, you are taking courses in custody and doing what you can to use your time productively.
12. You are a youthful offender, and your rehabilitation remains an important objective of sentencing, and you have the support of both your parents upon your release.
13. These mitigatory considerations cannot however assume too great a prominence in a case involving such serious intimate partner offending. Male violence against women is a scourge of our society, and the community wants it to end.
14. The court plays its role by imposing sentences that clearly denounce male violence and seek to deter those who engage in or contemplate engaging in such behaviour by sending a clear message that this kind of offending will attract heavy sentences. Victims must also be protected and as the Court of Appeal said in Pasinis:

"The key to protection lies in deterring the violent conduct by sending a clear and unequivocal message to would be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm." [13]

1. In respect of your possession of firearms, general and specific deterrence and community protection are at the forefront of the sentencing exercise.
2. I take into account the principles of totality and of parsimony.
3. Your offending against Ms Lexi was one incident, but it involved several discrete serious criminal acts and notwithstanding the principle of totality there will need to be some cumulation between offences, although I must be careful to avoid double punishment.
4. Your possession of the firearms on 26 March 2024 also calls for a period of cumulation.
5. I take into account the time you have spent in custody which is not directly referable as presentence detention in the application of the principle of totality.
6. Taking into account all the matters I am require to I intend to sentence you as follows.
7. You are convicted and sentenced as follows.
8. On Charge 1, you are convicted and sentenced to 1 year imprisonment.
9. On Charge 2, you are convicted and sentenced to 6 months' imprisonment.
10. On Charge 3, you are convicted and sentenced to 2 years' imprisonment.
11. On Charge 4, you are convicted and sentenced to 2 years and 6 months' imprisonment.
12. On Charge 5, you are convicted and sentenced to 6 months' imprisonment.
13. On Charge 6, you are convicted and sentenced to 20 months' imprisonment.
14. On Charge 7, you are convicted and sentenced to 1 month imprisonment.
15. On summary charge 9, you are convicted and sentenced to 1 year imprisonment.
16. Charge 4 is the base charge. I direct the following cumulation upon Charge 4 and upon each other: 10 months of the sentence on Charge 3, 8 months of the sentence on Charge 6, 6 months of the sentence on Charge 1 and summary Charge 9.
17. That makes a total effective sentence of 5 years. I direct you serve a non-period of 3 years' imprisonment.
18. Pursuant to s 18(4) of the Sentencing Act 1991 (Vic),[14] I declare you have served 357 days of the sentence I have imposed upon you, and I direct that be entered into the records of the court.
19. I make the orders sought by the prosecution.
20. Pursuant to s 6AAA of the Sentencing Act,[15] but for your plea of guilty, I would have sentenced you to 8 years' imprisonment with a non-parole period of 5 years.

[6] Bugmy v The Queen (2013) 249 CLR 571.

[7] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[8] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[9] Bugmy v The Queen (2013) 249 CLR 571.

[10] Kennedy v R [2022] NSWCA 215 at [51].

[11] Bugmy v The Queen (2013) 249 CLR 571.

[12] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[13] Pasinis v The Queen [2024] VSCA 97 at [57].

[14] Sentencing Act 1991 (Vic).