Director of Public Prosecutions v Morris

[2016] VCC 409

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01998

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT MORRIS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 March 2016
CASE MAY BE CITED AS:	DPP v Morris
MEDIUM NEUTRAL CITATION:	[2016] VCC 409

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McWilliams	Office of Public Prosecutions
For the Offender	Mr P. Smallwood	Stary Norton Halphen

HIS HONOUR: 

1Robert Morris, you were a teacher at two primary schools, one in Ringwood East between 1971 and 1973 and the other in Cranbourne North between 1975 and 1977.  In those years six ordinary young boys went to those schools.  They were entitled to expect that their days at primary school would involve being educated and generally being encouraged to flourish and enjoy each day of their precious childhood.  You, however, embarked on sexually abusing these six young boys, students left in your care, as their teacher.  Each of them has been left with lifelong scars.  You, Robert Morris, must now face the consequences.

2You have pleaded guilty to six charges of an indecent assault upon a male under the age of 16.  Each charge is a representative charge, one charge for each of the victims. 

3Victim 1 went to the primary school in East Ringwood.  You were his teacher for two years, commencing in either 1971 or 1972.  He was as young as six and no older than nine.  Your sexual abuse was in the classroom when other students were present.  You sat beside the young Victim 1 asking him if he played with himself.  His pants were then undone and you masturbated his penis.  In understandable fear he said, "Others will see."  You said, "No they wouldn't," as you touched him.  You then asserted your obvious power over him saying that this was "our secret" and if he told anyone he would be in trouble.  With this threat made you went on to repeat this vile conduct up to five more times.

4You later escalated your conduct by having the young child undo your pants and masturbate you.  This was done when he was made to stay after other students had left the classroom.  You subjected the victim to this behaviour on five occasions.

5On another occasion when the victim and another young child came to you to report a problem in the boys' toilets, you took just the victim into the toilets and into a cubicle.  You undid your fly, saying, "Do you want to see what you have been playing with?"  The victim in fear said, "No" and ran out of the toilet.  While this was a one-off event, it is revealing of your perverted ways and shows that you quickly would take or convert an opportunity if it presented itself to sexually confront the child.

6Victim 1, now a 51 year old father of three sons, has had to deal with the mental scars caused by your sexual abuse.  He has never forgotten your threatening words that your sexual abuse of him was "our secret" and if he told anyone he would be in trouble.  This has wrongly caused him to feel that he was somehow to blame.  Feelings of guilt, shame and distress have remained with him as he has remained silent and has affected him year upon year. 

7The events were not some dimly or barely remembered childhood occurrence for Victim 1.  Barely a day goes by without what you did to him intruding into his thoughts.  He anxiously contemplates what his life would have been like if you had not scarred him.  His psychologists over the years have helped him to try and achieve mental wellbeing and not allow what you did to dominate or rule his life, but that is no easy achievement.  He is, it seems, hypervigilant with regard to his own sons.  He is suspicious of the intent of other males around his sons.  This causes marital difficulties but he cannot help it.

8In 1975, you were a teacher at Cranbourne North.  Victim 2 was a young student but he was not in your class. 

9Can I just pause here for a moment to say what I should have said at the start, that I intend to refer to the complainants, out of politeness to them, by their name, but I will ensure even though some have said that they do not have a difficulty with the publication of their names, on reflection I think they will be referred to in writing by some anonymised form.

10To return to Victim 2.  He was a young student but he was not in your class.  He was on a bus returning from a swimming lesson on one occasion.  You were seated next to him and took the opportunity to rub his penis over his pants until he was erect.  You asked him, "Does that feel good?"  You rubbed his penis over his clothes at lunch time when he was on the school oval and a number of times when he was behind the shelter shed. 

11The impact of what you did to Victim 2 has been dreadful for him.  He wrote of how so many important, indeed fundamental aspects of his life have been ruined.  His mental health has been fragile as he tries to cope with his childhood memories of abuse.  He has had to take antidepressants.  He has attempted suicide as recently as Christmas 2012.  His marriages have been badly affected by his incapacity to feel comfortable with intimacy.  His
self-esteem is, to his mind, poor and he is easily thrown by ordinary events of meeting new people.  He has struggled with his sexual orientation, identifying openly as a gay man in 2007, but rather than that enabling some relief it was another period of emotional turmoil for him.  Important relationships that he had with his children have been adversely affected.  He still has haunting flashbacks of your abuse.  He feels you stole his childhood but what happened has affected him and still does as an adult.

12Victim 3 was in your class in 1975 at Cranbourne North Primary.  He was seven.  What you did to him was particularly humiliating.  You had him come to the front of the class and sit on your knee.  The purported reason was for him to read a book, but your real intent was a dreadful and cruel sexual abuse of him.  You held the book in such a way as to allow you to undo his fly and masturbate his penis as he read or tried to.  This occurred five times. 
It only has to be said for your perversity and abuse of power to be evident.  Also, you had the young Victim 3 stay after class to write lines as punishment from time to time.  In those circumstances you again took the opportunity and had him sit on your knee to read a book while you masturbated his penis.  This happened five times. 

13Victim 3 has an overwhelming sense that what you did turned him away from school and upended his capacity to gain a complete and beneficial education.  He wanted to learn, get the most from himself and have a career, he hoped, as a police officer, but rather he left school as soon as he could and scraped by.  He has endured panic attacks, abused alcohol, felt angry and bitter, rather than having a happier life.  Holding what happened to him a secret from others, his family especially, has been terribly hard for him and it has taken a toll.  He, too, wrongly is made to feel somehow guilty and to blame and that is an added level of cruelty that a childhood sexual abuse leaves with adults as they survive on. 

14Hopefully things will improve as it seems he has gained some strength from engaging with the police investigators in this matter.  He is now strong enough to tell his family doctor who has treated him for depression over many years without knowing of the sexual abuse. 

15He writes with admirable courage and strength, "I am not going to hide what happened any more.  All the time I've lost hiding a crime and not thinking I could do anything about it is over.  I can't turn back the time but I will let family and friends know to speak up before it consumes your life and thoughts.  The years that I have left in the future I will make more of an effort to believe in myself, that I didn't cause this and I deserve to live a happier life in work and play.  Ever since the police rang, I have been steadfast in getting my happiness back and not hiding behind the terrible time in my life."

16In 1976, you were still at Cranbourne when Victim 4 was in your class.  You again deployed what would ordinarily be an appropriate teaching method of having a child read, but you used that as a cover for sexual abuse.  You had Victim 4 on your knees and rubbed his penis over his clothes on two occasions.

17In 1977, Victim 5 was in your class at Cranbourne North.  On a day when children bought a pet to school, you had Victim 5 come into a class room and sit on your knee on the pretence that you would show him how to hold a stray cat that he had bought with him.  You took the opportunity to fondle the young Victim 5 penis and testicles.  You added the threat that he may be failed and kept down a grade.  You repeated this after a football game when you announced Victim 5 was the best player and that he had to sit on your knee.  The room was full of other football players but you positioned yourself and him behind your desk so your abuse of touching him was not seen.  You also touched him in this way at the desk when he was made to sit on your knee to read a homework story on another occasion.

18Victim 5 remembers being utterly confused when you asked him to sit on your knee.  When you fondled him he felt dirty, contaminated and in need of being clean.  He felt the overwhelming need to be rid of the clothes that he was wearing when you abused him.  He had been, up to your abuse, living an ordinary child's life.  Your abuse changed him and he has not been the same since.  He developed a debilitating obsessive-compulsive disorder, needing to wash over and over and to throw away clothes as he felt they were contaminated. 

19His treatment with expert psychologists over many years has led to the conclusion that his OCD and post-traumatic stress disorder are linked to your sexual abuse of him.  He is very restricted by his mental health difficulties, unable to live with others and as such he lives with his elderly parents.  He now, after a number of years of struggling with work, cannot work and he survives on a pension with excessive bills for the water he uses for cleaning and for replacement of the clothes he throws out.  The life battles he now has he wishes would be over.  His predicament is truly an unfortunate one.

20Victim 6 was also in your class in 1977.  You had him come to your desk and sit on your knee.  Again you ensured no-one in the class could see what was happening.  You took the young Victim 6 hand and put it into your pants and forced him to masturbate you.  You said you would fail him if he did not do as you wanted.  You repeated this in the yard when Victim 6 was sitting behind the shelter sheds having his lunch.  You forced him to masturbate you and, when erect, you forced your hand down his pants and masturbated him.  When the class went on a camp, you came to where Victim 6 was sleeping.  You touched his leg and testicles and masturbated yourself as you did so. 

21Victim 6 is now unable to write his own victim impact statement.  That was done by his carer, Mr Grant Coward, in the sense that Mr Coward provided a copy of a letter that he had written to some authorities endeavouring to get psychiatric help for Victim 6 who has significant psychological and psychiatric problems. 

22What Mr Coward wrote was as follows:  "I am writing to you in relation to obtaining psychiatric services for a gentleman who is renting at my premises.  His name is Victim 6.  He is 49 years old and has been on an invalid pension for the last 15 years.  He was sexually molested at Cranbourne Primary School by one of the teachers when he was nine years old.  This episode has haunted him since and appears to be the root cause of his agoraphobia, anxiety and depression."  He goes on.  "On an irregular basis the depression gets to the point that he turns to drink and seriously writes himself off.  In July of this year he was taken to the Frankston Hospital in an ambulance after oesophageal bleeding.  He was in intensive care for eight days and in the general hospital for a further four days before being released.  This is the second time he has had oesophageal bleeding with time in intensive care."  Mr Coward writes, "I am trying to break the cycle of anxiety and depression which leads to excessive drinking."

23It seems clear Victim 6 has had severe alcohol problems, perhaps for a number of years.  His predicament too is indeed a very, very sad one.

24The courts have learned by having victims articulate the effects on them of sexual abuse in victim impact statements that the psychological damage caused is deep, long lasting, if not lifelong and it affects almost every, if not every, aspect of the victim's life.  Parliament, speaking on behalf of our community, has made clear that courts must in sentencing have regard to the effect on victims of such crimes.  As required, that will occur here, but I emphasise it will be done in a balanced way.

25I am required by the Sentencing Act to assess the gravity of your crimes.  As I have already said, your offending was serious, and abhorrent to any fair minded member of our community.  What makes your crime so serious are the obvious factors: 

(1)  The comprehensive abuse of trust.  You as a primary school teacher were entrusted to look after the children in your class and care and, as is necessary, you were left as the only adult with the children for long periods. 

(2)  The very young age of the victims is particularly concerning, revealing your frank paedophilic perversion at the time. 

(3)  The duration and repeated nature of the way you offending, a new victim it seems for each year as the class groups moved on. 

(4)  The way you would use the pretence of having a child read to the class, or read while you masturbated the child.  It is a particularly concerning example of the humiliation and abuse of power that often comes with entrenched sexual abuse. 

(5)  The use in some instances of threats, that is threats to fail the child, keep the child down, or that the victim would be in trouble if they told, were all designed to hide your crimes and to make it more likely that the abuse could continue.

26I am also required by our Sentencing Act to assess the level of your moral culpability.  For many, if not most, of the reasons put forward as to why the crimes are grave examples of the offence of an indecent assault of a male under the age of 16, so too is your moral culpability particularly high.  You as a teacher, as an intelligent man, must have known what you were doing was wrong.  You simply put your perverse sexual or other gratifications above what was decent and the proper thing to do.  The proper thing to do was to look after vulnerable children not abuse them.

27You are now 70, soon to turn 71.  You were raised in the eastern suburbs of Melbourne.  Your father has residual psychological problems from his war service and died in 1970.  Family life was tense.  Your two brothers did well, one is a public servant, the other is an accountant.  The latter stands by you and you are close to him.  Your education culminated in gaining a degree in a Diploma of Education in primary teaching.  You taught at various schools from 1966 to 1977, including those schools where you perpetrated your crimes. 

28Your teaching career was suspended while you faced charges similar to those you have pleaded guilty to before me.  You were acquitted of those charges by a jury in a County Court trial in 1977.  However, in 1980, you pleaded guilty to an indecent assault, of a male under the age of 16, at the Magistrates' Court at Prahran.  The circumstances of that crime were very similar to the crimes here, the touching of a young student on his penis under his clothing while teaching at one of the schools.  That matter is not a prior conviction but it is of course relevant.

29After your teaching career was over, you joined the Commonwealth Public Service, where you had a solid career in Melbourne and in the ACT.  After retiring or being made redundant from the Commonwealth Public Service in 2001, you took up teaching of international students in Sydney, then in China.  You retired from the workforce in 2008.

30You were married in 1982.  Your wife had two children from a previous relationship, but you raised them as your own.  However, when they left the home you and your wife acknowledged the relationship was moribund and you separated in 1998.  After that you acknowledged your homosexuality, a matter that you had sensed but repressed for many years. 

31You met your current partner in China in 2006 and assisted in his migration to Australia.  You lived together in the ACT and he remains supportive.  You have a keen interest in amateur theatre in the ACT.

32You have no mental health problems and according to your GP you are quite healthy, physically that is, apart from the reasonably common western ailments of elevated cholesterol, osteoarthritis and gastric reflux, all matters dealt with by medication.

33You are understandably anxious about the prospects of imprisonment and how your partner will manage without you.  Any imprisonment will have the added burden of being in another State away from your home.

34Your counsel, Mr Smallwood, in his comprehensive written oral plea emphasised a number of matters in mitigation which I accept.  Firstly, your early plea of guilty.  I can assure you, Mr Morris, that as a consequence of your plea of guilty your sentence will be less than it otherwise would have been.  Importantly, you have relieved the victims of the added and significant trauma of a trial, something you well appreciate.  They are now publicly vindicated and their childhood experiences were not challenged.  It may well be, or it may well allow for them to recover more readily.

35Your plea of guilty is evidence of remorse and your acceptance of responsibility and acknowledgement of your criminal conduct over 40 years ago.  Your partner and your friends in Canberra also attest to your remorse.  You have been law-abiding for many years and through work have made a contribution to the community.  This is to your credit.  Your partner remains supportive, as I have said.  That, along with your age, your stability and the time since you offended makes it very likely you will not offend in like manner again.  The experienced forensic psychologist, Mr Cummins, who saw you at the bequest of your lawyers, was of the opinion that you are in the low risk category for sexual offending. 

36Thus all these matters, together with your proper sense of the real harm you have caused to the victims, allows for your full rehabilitation to be consolidated.  Thus deterrence to you and ongoing protection of the community are not matters of concern.  I make clear that these matters that were put in mitigation are not given mere lip service because the crimes you committed are abhorrent ones committed against small children.

37However, what must be understood is that denunciation of your appalling conduct and deterrence to others remain as prominent sentencing considerations.  Your counsel conceded as much but submitted that with legislative changes and the guideline judgment in Boulton & Ors v R, I could and should impose an onerous community corrections order alone or at worst combined with some incarceration.  The prosecution submitted immediate gaol was the only just and appropriate sentence. 

38I have thought carefully about Mr Smallwood's submissions, but in the end I am compelled by all the relevant considerations to take the always grave step of imposing imprisonment.  In my view, only a prison sentence could properly and justly satisfy the sentencing purposes of denunciation and deterrence, while at the same time that I say this I remain mindful of your rehabilitation.

39I have said I hope plainly enough that for right minded members of our community your sexual abuse of children in the class room and in the yard, on the bus and at the school camp is bewildering and sickening.  It must be denounced, not only in words of condemnation but in the practical way that your liberty is to be taken from you as punishment for the wrong and the harm caused.  Also I must, with the sentence I impose, endeavour to deter others.  The message must be unequivocal, if you enter the dark realm of sexual abuse of children, then imprisonment for a long time awaits.

40I am well mindful of the maximum term of five years and will apply the principles as articulated by a Court of Appeal in Stalio v The Queen in dealing with offences from decades ago.  In this case the years that have passed have revealed your reform and your law abiding ways, but you have been able to get on with your life without the stain of these convictions, although you did have the good behaviour bond from Prahran Magistrates' Court that had some impact.

41This general point was made by our Court of Appeal in R v Murray when they reviewed a sentence of three years with a minimum of 22 months for a football coach, who on one weekend alone, fondled the genitals of two young players and had them fondle him, giving rise to seven charges.  He was 29 at the time and thereafter led a blameless life until pleading guilty as a man who was then nearing 70.

42I also take into account each of your six charges as representative of multiple incidents.  It is not an aggravating circumstance, but I am entitled to consider the full circumstances of what you did ensuring that your punishment is for the single charge and is punishment proportionate to your offending.

43The question of cumulation requires consideration at a point where I have imposed a sentence of imprisonment for two offences and then move to the other charges.  Cumulation generally is a matter that I must consider, but there are the provisions of the statute such that by reason of the statute you will at a point be a serious sexual offender.  The serious offender provision require I regard protection of the community as the principal sentencing purposes.  I am required to impose cumulative terms unless I otherwise direct.  I cannot ignore parliament's intent in this regard, but I also must ensure the total sentence meets the totality of your crimes no more and no less. 

44In compliance with the Court of Appeal requirements I will indicate that my reasons for not ordering complete cumulation is that to do so would create an out rider sentence which is not in any sense in accord with the principles of consistency in sentencing.  Also to order full cumulation would impose a crushing sentence on you at your age.  There must of course be some cumulation so as to mark the different crimes on the different victims.

45Doing the best I can, I impose the following sentences of imprisonment which, in my view, are the just and appropriate sentences:

46Charge 1, for committing the indecent assault on a male person, that is the indecent assault of Victim 1, you are sentenced to two years and three months' imprisonment.

47Charge 2, for committing the indecent assault on the male person, Victim 2, a male under the age of 16, you are sentenced to one year imprisonment.

48Charge 3, for committing the indecent assault on the male person, Victim 3, who was under the age of 16, you are sentenced to two years and three months' imprisonment.

49On Charge 4, committing the offence of indecent assault on a male person under the age of 16, being Victim 4, you are sentenced to one year and three months' imprisonment.

50On Charge 5, committing the indecent assault on a male person under the age of 16, being Victim 5, you are sentenced to one year and three months' imprisonment.

51On Charge 6, committing the indecent assault on a male person under the age of 16, being Victim 6, you are sentenced to two years and six months' imprisonment.

52The final sentence, Charge 6, will be the base sentence as it is called.  I make the following orders for cumulation.  I order that 12 months of Charge 1, four months of Charge 2 and in doing the best I can with the serious sexual offending provisions, 14 months of Charge 3, six months of Charge 4 and six months of Charge 5 will be cumulative.  That brings a total effective sentence of six years and I order that you not be eligible for parole before the expiration of four years.

53I declare that you are a serious sexual offender pursuant to the provisions of the Act for Charges 3, 4, 5 and 6. 

54There are other consequential orders being the request to the Crown or applications of the Crown, firstly that you provide a forensic sample.  I intend to grant that order.  I do so because the seriousness of the circumstances warrant the offending; you have a prior matter, although it does not loom large in the sentencing, it was relevant, it was not a prior conviction for the other matters, nonetheless it is relevant to this order; and I consider the granting of the order is in the public interest.

55I need to make clear to you that when the authorities come to take the forensic sample from you, you must co-operate as if you do not co-operate they are authorised to use reasonable force to get the forensic sample taken.

56I declare that, Mr Morris, you have served, is it two days?

57MR SMALLWOOD:  Three, Your Honour.

58MR McWILLIAMS:  Three, Your Honour.

59HIS HONOUR:  You have served three days of imprisonment.  That has now been reckoned and I declare that those three days will be part of the sentence that I have just imposed and I will ensure that this declaration is entered into the records of this court, meaning that the prison authorities will be left in no doubt that you have already done three days of the sentence that I have just imposed.

60Any further orders?

61MR McWILLIAMS:  Sex offender's register and 6AAA.

62HIS HONOUR:  I am sorry.  I am apologetic.

63Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of eight years with a minimum of six. 

64What is the length of the sex offender's register?

65MR McWILLIAMS:  It is life, Your Honour.

66HIS HONOUR:  By reason of the provision of the statute for the sex offender's register, you must go onto that register, as it were, and remain on that register for life.  Those things are mandatory under the statute, there is no discretion.  It seems to me there is a process, as I understand it, where I must give you a document that indicates to you that you have obligations under the sex offender's register.  I must give you that document now.  I sign that I have given it to you, you sign that you have got it, but it is the contents of it that counts.  Mr Smallwood will explain what the consequences are if you fail to abide by the sex offender's register, requirements upon your release.

67Is there one of those documents here, or do we have them?

68MR McWILLIAMS:  I am told it is a document that the court ordinarily produces, Your Honour.

69HIS HONOUR:  Mr McWilliams, I received your information regarding the publication of names.  I have reviewed the legislation that governs that and of course the complainants can authorise it.

70MR McWILLIAMS:  Yes.

71HIS HONOUR:  I think on balance that it might, having thought it through, I will anonymise my sentence so that if any particular complainant wishes to have the name published or in some other way they can make that choice themselves and apply for that to be done, but I will just describe each of them as Victims 1-6, or something like that.

72MR McWILLIAMS:  Yes, Your Honour, or initials.  Your Honour will no doubt ‑ ‑ ‑

73HIS HONOUR:  What class are they, Class 1 offences, or?

74MR McWILLIAMS:  They are Class 2 offences, Your Honour.

75HIS HONOUR:  Mr Smallwood, Mr Morris has to go through this process whichever it is.  It looks like it has changed so my associate can sign it, but he has got to sign that I have given it to him and I have got to sign that he got it.

76MR SMALLWOOD:  Yes, Your Honour.

77HIS HONOUR:  There it is.  Just take that.  He keeps the bulk of it and gives me back the top page.

78MR SMALLWOOD:  Yes, Your Honour.  May I approach with Your Honour's associate?

79HIS HONOUR:  Yes, of course.  Is there anything further required?

80MR McWILLIAMS:  No, Your Honour.

81HIS HONOUR:  Again I thank counsel for their particular assistance,
Mr Smallwood made a comprehensive plea.  I thank the people in court for the dignity that they have shown.  Mr Morris, now can you take him.  Please, dignity, dignity.  Just dignity.  Thank you.  I now adjourn for other matters.

82(Section 464ZF order signed and acknowledged.)

83(Sex offender's registration signed and acknowledged.)

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