R v Morgan

District Court of NSW|2021-03-11

Solicitors: Maguire McInerney Lawyers (for the offender) File Number(s): 2019/00299830

Introduction

On 11 December 2020, after a 4 day trial at Wollongong District Court, a jury found Brittany Morgan guilty of an offence, commonly called kidnapping, but more formally of; detaining the victim without his consent with the intention of intimidating him. The offence was aggravated because she was in company with three others and the victim was injured and suffered actual bodily harm. This offence carries a maximum penalty of 25 years: s 86(3) Crimes Act 1900. That maximum penalty is one of the many guides to the exercise of my sentencing discretion in this matter.

Objective seriousness

I have already sentenced Chambers, Earnshaw and Taylor: R v Mark Chambers; R v Raynor Earnshaw [2019] NSWDC 848 and R v Taylor [2020] NSWDC 430. There was some debate during submissions in those earlier cases whether the offence was planned. There is only one inference I could draw beyond reasonable doubt; what occurred was not a coincidence.
While the car was being driven by Morgan, Chambers was waiting only a short distance down the road; Earnshaw was with him. The vehicle stopped where Chambers was. Chambers had a perceived, if groundless, grievance against the victim. The others joined him in his crime. Chambers' motives are at best obscure and can be explained by his intoxication by the drug methamphetamine; so too I suspect the others.
The facts indicate a degree of planning. It is clear however that nothing was well thought out and not one of the offenders considered the potential consequences either to their victim or themselves.
Courts are enjoined by the legislature in the appellate courts to consider the principle of general deterrence in matters such as this. The maximum penalty here, 25 years, indicates how Parliament on behalf of the community views offences of this type. Crimes which carry a maximum penalty of 25 years more often than not end up with the participants being sent to gaol if caught. Proper application of legal principals demands such sentences. However, general deterrence principles did not stop this offence occurring. I suspect no one thought they would end up in gaol. While planning is an aggravating factor, the level of planning shown here must fall at the very bottom of the range.
Here, the victim was kidnapped and subject to a serious assault by four persons acting together. A weapon was used by one of the offenders. He was injured. It was intended he be intimidated, and undoubtedly he was. He was detained by first being held in a chokehold and then bundled into the boot of a car. He was detained for about half an hour. That period of detention and the nature of that detention are significant matters in assessing objective seriousness. Whatever was intended to be done to him was foiled by his escape. There is no suggestion his attackers allowed this escape to happen. To the contrary, as the jury and verdict makes clear, each of them, including this offender, was involved in attempting to prevent his escape.
The victim's desperate measures prevented a more serious level of offending occurring, but in order to do so he had to jump from a moving vehicle. Despite Morgan's assertions to the jury, she was not a passive participant. She is responsible for the acts of the others with whom she joined in this criminal enterprise. Even though she did not actively participate as much as them she did join directly in the assault upon the victim.
On any measure each of the offenders was participating in a serious offence, not just against their victim, but against the community. This calls for a measure of retributive punishment.
There is some room for distinguishing between each of the offenders as their roles differ. Morgan was responsible along with Taylor for stopping of the car. I find the logic of events compels a conclusion that she knew Chambers and Earnshaw were in wait at the spot down the street. While she was not in the rear seat when the victim tried to escape, her continued attempts to prevent his escape make her equally criminally liable with Taylor. While their roles differ slightly, there is little if anything to distinguish her role from that of Taylor. Morgan's individual actions had an immediate and continuing impact on the victim, as did, of course, the combined actions of each offender involved in this criminal enterprise.

Victims Impact Statement

The victim read his Victim Impact Statement to the Court today: exhibit C. In it he spoke of the impact of this offence on his life and his continued anxiety and suspicion of others. His ability to lead a normal community life and participate in community life has been restricted. He spoke of both the physical and psychological scars that still remain, including the re‑traumatisation that occurred while having to give evidence at this trial late last year. The impact upon him is what one would expect given the serious crime committed against him. Any sentence in such a matter must attempt to vindicate his dignity as well as recognising the harm done to him and to the community in general.

Co-offenders

Chambers was sentenced for two offences. I indicated a sentence for the s 83 offence of three years and nine months. His aggregate sentence was four years, a non-parole period of two years and six months. I took into account an early plea and reduced the otherwise appropriate sentence for the utilitarian value of that plea by 25%.
Earnshaw pleaded guilty to one s 86(3) offence. The facts before me on that occasion indicated he was involved only at the beginning, something that was not supported by evidence at this trial. His sentence was one year and ten months with a non-parole period of one year and one month. I took into account the early plea and gave him a reduction of 25% of the otherwise appropriate sentence to recognise the utilitarian value of that plea. Both Chambers and Earnshaw had significant criminal antecedents.
Taylor was sentenced to a term of two years and three months with a non‑parole period of one year and one month. I took into account her early guilty plea and reduced the sentence further for s 23 Crimes (Sentencing Procedure) Act 1999 assistance. My starting point of three years and six months.

Parity

This sentence has to be determined having regard to the circumstances of each of the co‑offenders and their respective degrees of culpability. Like must be compared with like. Different personal and criminal histories can justify a real difference in sentence and how that sentence is to be structured.
The principle I apply is known as parity. It is a classic example of the need so far as possible to ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246. While every offence and every offender is individual and requires independent consideration, no offender who plays a part in a criminal enterprise such as this should have cause to be aggrieved because they are being treated disproportionately harsher than others. That principal can also encompass the structure of a sentence and its non‑parole period: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271.

Guidance

While every offence and every offender requires individualised treatment, courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include here the maximum penalty prescribed, the decision of other courts to which I was referred in the comprehensive submissions of counsel. They include, of course, the purposes of sentencing; which here importantly included deterrence of this offender and others from committing similar crimes, and as I have said, proper recognition of the harm done to the individual victim and the community.

COVID 19

There is no evidence before me in relation to the impact of COVID‑19 on this offender, but I do take into account that the current practice still is that visits from family members are restricted, and are presently prohibited. I am told that electronic access visits are allowed and facilities for them are in operation. Not having visits, particularly for a mother, can have a detrimental impact on a person's capacity to cope with a custodial sentence. It is necessary if at all possible that an offender maintain contact with prosocial members of the community. If, and one hopes it will not, COVID‑19 gets into the gaol there is nothing in Morgan's background or the crime committed which would disqualify her from early release.

Criminal record

Morgan does have a criminal record but most of the offending occurred after the commission of this offence. It is clear from all the material before me that she has a longstanding problem with illicit drugs. The reasons underlying that problem will be referred to by me shortly. She can be treated as a first offender and this is her first time in custody.
Although a submission was made that the sentence could be dealt with by way of intensive correction order in the community, in discussion with defence counsel, Mr Roff, who appeared today and the trial I indicated that that option was not available.
Nevertheless, it is important to note that in the matter when the jury returned their verdict I refused a Crown detention application to give her time before she was imprisoned to continue her drug rehabilitation program and to put her affairs in order. Sadly, she breached her bail and she has been in custody since 16 February. Given her prior custody her sentence should start from 11 February 21. The breach of bail is not otherwise a fact that I take into account. It was notional, but given I had already indicated a full time sentence was inevitable I saw no option other than to refuse bail, despite her entreaties to me on the 16th.

Subjective case

Born in 1991, Morgan grew up with her family in the local area and also Queensland. She became pregnant at 14 but was able to finish her school certificate and obtain work. She was married to the father of her children for some time, but the relationship involved domestic violence towards her.
Since she was 16 she has suffered mood swings, depression and anxiety. A number of self‑harm incidents are reported. A second relationship was even more violent. Her mental health deteriorated and her children were taken into care.
She has been in the care of a psychiatrist and taking medication since February 2018. Although the reports before me mention bipolar disorder, there is no evidence of any diagnosis. And that history may even go back to when she was a child. In January 2019 she had a short admission in a local psychiatric hospital. She reports early take up of cannabis, well before the age of rational choice. She took up using methylamphetamine (ice) in 2017. It appears that she used this drug while she was on remand until about mid‑2020.
Until her bail was revoked she was in a stable relationship with a man who she was helping get his own life in order. She had a job at a local take‑away. Her eldest daughter had come to live with her. Morgan had also engaged with a local drug treatment agency, although her attendance appears sporadic.
In a letter to me she pleaded to be allowed to return to the community and continue with the Illawarra Drug and Alcohol Service Program (IDAS). She noted she has a home, a partner and a daughter who needs her: exhibit 3. Morgan's four children are in the care of their grandparents, but she has regular contact with them.
Her eldest daughter who had been living with her prior to her returning to custody wrote a letter about the impact of the mother's various problems on the family. She said that her recent contact with her mother had helped with her own recovery from a variety of problems. She urged me to consider "the real Brittany Morgan".

Sentence Assessment Report

There is a Sentence Assessment Report prepared for the Court. It notes Morgan's; history of drug abuse, her deteriorating mental health condition and her association, particularly during the period when this offence occurred, with negative peers.
While she has expressed appropriate remorse for what happened to her victim, she still maintains, as is her right, that she was trying to help him and was not involved in the offence. She is not to be punished for maintaining that position, but it may make her subsequent rehabilitation more difficult.
All the material before me indicates she will require extensive assistance, both in custody and on release. A treatment plan can be put in place by Community Corrections which will on release include engagement with locally based drug intervention programs and cognitive behaviour therapy to address a number of particular problems that she has. They are detailed in the Sentence Assessment Report.
Dr Furst in his report sets out Morgan's personal and psychiatric history: exhibit 4. It is uncontroversial. His opinions are not based upon the offender's version of events, and he was aware of the facts on which I would sentence. He notes that she saw her treating psychiatrist two months prior to the offences about anxiety, anger and loss. Her medication regime which had been continuing for much of her teenage years and in her adult life was augmented.
Dr Furst diagnoses three conditions;

mixed anxiety disorder,
borderline personality disorder associated with childhood trauma and
substance use disorder; with daily use at the time of offending.

In his opinion at the time of her offending she was more likely than not suffering from drug addiction and high levels of anxiety, mood swings and instability. These resulted from her longstanding emotional instability. In Dr Furst's opinion a combination of mental disorders, unstable medical condition and negative social influences all contributed to the poor choices she made and the poor judgment she exercised on 24 April 2018. Having heard the evidence trial and having reviewed all the material before me that opinion seems, on balance, a sound one.
Dr Furst makes specific recommendations regarding future treatment, which if implemented could reduce Morgan's prospects for reoffending and enhance her reintegration into the community. A copy of the report should accompany the warrant so that Community Corrections can do what they can do to put those recommended programs in place before and after parole is granted.
Any risk of reoffending is largely dependent on Morgan continuing her abstinence from methylamphetamine use. Dr Furst concluded his report by reminding the Court that the custodial environment in New South Wales is a harsh one, with frequent exposure to violence, threats and intimidation. He says that as a victim of domestic violence Morgan is likely to be more sensitive than many others to such violence, threats and intimidation. Custody is likely to exacerbate her existing depression and anxiety, making the custodial environment more onerous for her than the theoretical inmate who does not suffer such entrenched problems. I note it is rare in women's prisons for such a theoretical inmate to exist, but nevertheless it is a principle I take into account.
It is clear that her background contributed to the commission of this offence. While it is not determinative, I note that drug addiction and drug use and abuse at the time of the commission of the offence cannot and does not mitigate. At best it helps me explain what occurred and helps me formulate a sentence with both the offender and the community interest in mind. It is imperative that she get assistance to deal with that problem.

Submissions

Mr Coulton, solicitor advocate for the Director of Public Prosecutions, and Mr Roff of counsel who both appeared at trial have provided comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised, but I have considered them and addressed them in coming to my determination as to the appropriate sentence.
Ultimately, Mr Roff submitted that given this offender's role and the subjective material relating to her background and mental state a sentence of less than two years could be imposed. He, as did Dr Furst, urged that the community interest would best be met if the sentence was served subject to intensive correction in the community. As I indicated in discussion with counsel, that option is not and could not be made available to me where I could do justice to all the purposes of sentencing.
That does not mean that I ignore the individual interests of the offender and the community. Her time in custody will be hard. She attempted from a very low base to demonstrate during her period on remand that she could engage with services. She obtained work and achieved some stability in her life, which stability she was able to utilise to assist her eldest daughter. She will not be able to meet those obligations or prove herself in the community while she is serving the minimum term necessary to meet the purposes of sentencing.

Synthesis

When I sentenced the others I noted that sentences must reflect many purposes of sentencing, and that those purposes point in different directions. There must be appropriate punishment for an offence of this severity and in matters such as this there is a need for retributive sentences. A proper sentence marks the Court's view of the seriousness of the crime and should let others know the retribution that will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203. Sometimes the terms retribution and general deterrence are used interchangeably. There has been considerable criticism of the principle of general deterrence, particularly for crimes as here which so far as this offender is concerned were not thought out at all. It was noted in cases such as Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 that heavy sentences are likely to be of little utility in reducing the general incidence of crime, particularly those that were not well thought out.
It is clear that this offender was not thinking about the consequences for herself, let alone the consequences for her victim. While the Court cannot mitigate a sentence because of drug use, it is abundantly clear to me that she was, as were others, not thinking clearly because of that drug use.
This case has many similarities with that of Taylor's. When I sentenced her I indicated that I must fix a sentence appropriate to the crime and the offender. The sentence must adequately reflect and have some proportion to what was done.
The purposes of sentencing for which a Court include, as I have said many purposes, and any custodial sentence must attempt to protect the community, and as the evidence before me indicates, and the opinion of Dr Furst which I respect indicates, community protection can be set back if an offender's progress towards rehabilitation is interfered with by the harshness of a custodial sentence. Nevertheless a custodial sentence must be imposed.
Morgan took part in a very serious crime that left her victim bloodied by the side of a road. Her methylamphetamine use cannot excuse her crime. I believe she may now genuinely believe that she was not an active participant in this crime. But that belief has to be put aside. I have to sentence in accordance with the jury verdict and the facts that logically flow from that verdict.
Her various mental conditions and drug use, her background of domestic violence and her attempts to rehabilitate herself are all matters I can and do take into account. As she has got older and attempted to come to grips with her drug problem; as she has accepted responsibility to herself, her partner and her children she has gained some insight.
All assistance should be given her to reduce the risk she will relapse into drug abuse and lose control of her life and her will to live. There is a strong community interest in promoting the rehabilitation of every offender, and for a woman in her position facing a custodial sentence for the first time, a mother who is attempting to restore contact with her children and take responsibility for her children this gaol sentence will be particularly hard.
Her restoration to the community is of particular importance. There is scope in the community for treatment for both her mental health and drug problems. Gaol will cause a significant risk of relapse.
While significant leniency can be extended to the offender by finding of special circumstances, the minimum period in custody must properly reflect the gravity of the offence and the other purposes of sentencing. I realise that gaol will be a setback and may cause considerable problems on her path to rehabilitation. But mitigating circumstances can go only so far.
This crime was planned to some degree. Although a secondary player, Morgan participated throughout. Considerable violence was involved; harm was intended and harm was done. Only a full time custody can properly reflect what was done and vindicate the dignity of the victim and express the community's disapproval of what occurred.
Although not be punished for going to trial, as she offered no guilty plea Morgan's sentence cannot be reduced as were the others.

Orders

In accordance with the jury verdict you are convicted. There will be a sentence of three years and six months. The formal orders of the Court are: a non-parole period of one year and nine months. It will commence on 11 February 2021. The non‑parole period will expire on 10 November 2022 on which date you will be eligible for consideration for release to parole. There will be a parole period of one year and nine moths reflecting a considerable finding of special circumstances. The total sentence will expire on 11 August 2024.
Dr Furst's report will accompany the warrant to Corrective Services.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2021

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