Director of Public Prosecutions v Morris (a pseudonym)
[2022] VCC 1955
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HENRY MORRIS (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 July 2022, 12 July 2022 & 21 September 2022 |
DATE OF SENTENCE: | 10 November 2022 |
CASE MAY BE CITED AS: | DPP v Morris (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1955 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty - Incest – Delay – Degree of genuine remorse - Chronic health conditions – Advanced age – Long procedural history - Very good prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 s 44(1); Crimes (Sexual Offences) Act 1991; Sentencing Act 1991 ss 6AAA, 18, 44; Sex Offenders Registration Act 2004 s 34(1)(c).
Cases Cited:DPP v Walsh (a Pseudonym) [2018] VSCA 172; Worboyes v The Queen [2021] VSCA 169.
Sentence:Imprisonment for a period of 3 years with a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo (Plea) Ms L. Watson (Sentence) | Office of Public Prosecutions |
For the Accused | Mr R. Edney (Plea) Ms M. Crouch (Sentence) | David Luscombe & Associates |
HIS HONOUR:
1Henry Morris,[1] you have pleaded guilty to two charges of incest, contrary to s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, which each carry a maximum penalty of 25 years imprisonment
(Charges 1 and 2).[1]A pseudonym.
2You have no prior criminal history.
Procedural History
3This matter has had a long procedural history. The matter was originally listed for trial on 7 March 2018. On 7 and 8 March 2018 the Special Hearing for Ella Morris[2] was conducted and a jury was empanelled on 9 March 2018. That jury was discharged and a second jury was empanelled on 15 March 2018. You gave evidence at that trial and on 20 March 2018 you were convicted on four charges. On 22 March 2018 you were sentenced. You appealed conviction and sentence.
[2] A pseudonym.
4On 6 March 2019 the Court of Appeal granted leave to appeal and allowed the appeal, ordering a retrial. The prosecution gave notice that they intended to adduce your previous sworn evidence and that of your wife as part of the prosecution case at the retrial. You applied to exclude part of your evidence and that of your wife’s evidence from the previous trial, however, that application was refused on 15 April 2020. You further applied to have the charges severed in relation to each complainant, which was refused on
20 July 2021. You appealed that decision. Leave was granted; however, the appeal was dismissed by the Court of Appeal on 15 October 2021.5The matter was then listed for trial on 8 February 2022 before me. A jury of 12 were empanelled on that day and you pleaded not guilty to what was then four charges. On 10 February 2022 the matter resolved and the jury were discharged. A new plea Indictment was filed on the same day and you pleaded guilty to the two charges of incest.
Circumstances of the Offending
6A prosecution opening was tendered on the plea and may be summarised as follows:
7The first victim, Danielle Morris,[3] was born in May 1996 and is now 26 years old. She was aged 16 at the time of the offending.
[3] A pseudonym.
8The second victim, Ella Morris, is the sister of the first victim and was born in March 2001. She is now 21 years old and was aged between 13 and 14 years at the time of the offending.
9You were born in October 1942. You are the paternal grandfather of both the victims and you were aged between 70 and 72 at the time of the offending.
The Offending – Danielle Morris
10On 7 April 2013 you and your wife were at the family home of the first victim, Danielle Morris. Danielle was alone with you, showing you pictures of, ‘horses for sale’, on the internet in her bedroom. Elsewhere in the house was your wife, Danielle’s father, Steven Morris,[4] his partner, and Danielle’s sister, Ella Morris.
[4] A pseudonym.
11You stood on Danielle’s left-hand side and began to touch her upper inner thigh, putting pressure on her thigh then releasing it. You were kissing Danielle and moved her towards her bed. You inserted one of your fingers into her vagina while your other hand rubbed her hip. You asked Danielle if she liked it and she replied, 'No'. You left the room. It is these facts that relate to Charge 1, Incest.
12The following morning you approached Danielle in her bedroom and told her that if she told anyone it would upset them and that it must not happen again. Danielle said that that she did not want it to happen and you replied, 'It was both of us'.
13Danielle told her ex-boyfriend that her grandpa had sexually assaulted her the night before on a private message through Facebook.
14Danielle also disclosed to her friend that her granddad had touched her sexually.
15About a week later Danielle told another friend about the offending. This friend encouraged Danielle to tell her parents.
16In about late September 2015 or early October 2015, Danielle returned a missed telephone call from her grandmother; your wife. In that conversation your wife arranged to deliver a table to Danielle’s house. Approximately two days after the telephone conversation you and your wife delivered the table to Danielle’s house.
17While at Danielle’s house you and Danielle had a conversation in which you insisted that what had happened to Danielle was not your fault and that she had wanted it to occur. You told her not to tell anyone what happened.
18A couple of days later Danielle disclosed the offending to her father,
Steven Morris, via text message.The Offending – Ella Morris
19Between 28 and 30 August 2015, the second victim,
Ella Morris, went to your home for the weekend. At about midday, having slept in, she was sitting on the floor in the lounge room, eating toast. Her grandmother had gone to the shops.20You sat on the couch behind her and grabbed the bottom of her pyjama top, pulling her back towards you. You put your hand down Ella’s pants and inserted your finger into her vagina. It is these facts that relate to Charge 2, Incest.
21Ella told you that she had to have a shower and left the room.
22Ella stated that she would try to ensure that she was not around you without her grandma so that you could not engage in the offending again.
23About a week after the incident, Ella disclosed the offending to her friend, and this friend told her foster mother and the school. Police were then notified.
Nature and Gravity of the Offending
24As the grandfather of both victims, your relationship necessarily puts you in a special position of trust and responsibility. Children look up to parents and grandparents to guide them and it is clear from the evidence that the victims did look to you for guidance and otherwise enjoyed the relationship they had with you. You took advantage of that special relationship, abusing the position of trust that had developed between you and your granddaughters, who were entitled to feel safe and protected in your care.
25In relation to the first victim, Danielle, your offending occurred when her sister, Ella, her father, his partner and your wife were in the home at the time. The victim was alone with you, engaged in what may described as normal interaction where she was showing you pictures on the internet. In that circumstance, you sexually assaulted her. The next day you told her not to tell anyone of the incident. Danielle was 16 at the time of the offending.
26In relation to the second victim, Ella, the offending occurred when the victim was staying at your home for the weekend. Your wife had gone out to the shops. In those circumstances while you were alone with the victim, you pulled her towards you and sexually assaulted her as described above. Ella was 14 at the time of the offending.
27Incest is an inherently serious charge which is reflected in the maximum penalty of 25 years imprisonment. As to the nature of the offence, I note what the
Court of Appeal said in DPP v Walsh (a Pseudonym)[5] as follows:'Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents'.[6]
[5] [2018] VSCA 172.
[6] Ibid at [1] (Maxwell P, McLeish JA).
28Later in the same judgment the Court said:
'Incest involving a child is, by definition, an offence of very high culpability, since it is so obviously contrary to every tenet of parental care for children and since every parent is taken to understand that sexual activity is absolutely prohibited'.[7]
[7] Ibid at [33] (Maxwell P, McLeish JA).
29Mr Edney, who appeared on your behalf, while accepting that the offending is very serious, submitted that the offending is out of character and inexplicable given you were 70 of the time of the first offending. It was also submitted that the offending in each instance was opportunistic and of short duration. However, while it may be said that the offending in relation to the first victim was opportunistic, by the later conversations with the victim, you were well aware of your wrongdoing and told the victim not to tell anyone. Despite this realisation, it seems that you took the same opportunity with the second victim some two years later.
30Your offending was a gross breach of trust and I respectfully adopt the comments of the Court of Appeal as noted in Walsh. While the offending may be two discrete episodes of short duration, in my view, in all the circumstances, it nonetheless remains very serious offending.
Victim Impact
31Vitim impact statements were prepared by Danielle Morris,
Ella Morris and Steven Morris. In relation to Danielle and Ella, each prepared victim impact statements following the first trial in 2018. In relation to the current proceeding, each victim prepared a further victim impact statement.32Both Danielle and Ella have suffered psychologically as a result of your offending. Each were diagnosed with post-traumatic stress disorder and depression. They both also describe the devastating impact your offending has had on the family constellation, resulting in a loss of relationship with your wife, their grandmother, and a further alienation as the extended family was split following the disclosure of the offending.
33The victim impact statement prepared by your son, Steven, speaks eloquently of the cost of your offending on him and his family. He speaks of the difficulty in understanding why you did what you did. He describes you as an otherwise honest and forthright person and simply cannot come to terms with what he describes as your, 'selfish behaviour'. Steven Morris also speaks of the pain he has experienced observing the impact of your offending on his daughters and the struggles they have had in the years following your offending.
34I have taken the contents of each victim impact statement into account.
Personal Circumstances
35You are 80 years of age, and as noted, you were 70 to 72 at the time of your offending. You are married and have two adult children.
36You grew up in Devonport, Tasmania. Following school, you worked in various employment including as a carpet layer and work within the building industry. In 1972 you joined the police force in Tasmania and remained in that employment until 1985, when you were forced to retire as a result of ill health. You have had poor physical health since 1983.
37A number of medical documents were tendered on the plea confirming your general poor health. You suffer from a number of conditions, including gout, diabetes, hypertension, cellulitis, peripheral neuropathy, kidney failure and benign prostatic hyperplasia. Earlier this year you suffered a heart attack and had coronary artery stents inserted. You are also on a range medication in relation to your various health conditions.
38Following the initial plea hearing on 5 July 2022, as a result of an assessment report prepared by Corrections Victoria, an adjournment was sought in order to obtain a neuropsychological assessment. Following the adjournment a joint report authored by Geriatrician Registrar, Dr Arrchananh Balachandran, and Consultant Geriatrician, Dr Jun Yew Tay, dated 26 July 2022, was tendered. The report suggested that you may have a mild cognitive impairment, however, that the major issue contributing to your recent cognitive changes is your significant depression, which appears to be reactive to recent stressors including the criminal process. An MRI was recommended in order to exclude neurodegenerative conditions such as dementia. Further, an MRI of your heart was recommended to clarify whether you suffer from cardiomyopathy.
39Some 12 references from a variety of family and friends, each of which have known you for a considerable amount of time, were tendered on the plea. All the writers of those references convey a sense of incredulity in relation to the offending. They speak of your otherwise good character as an honest, hardworking, gentle and kind man. Your eldest daughter continues to support you. Your younger sister states that she struggles to reconcile the man she knows against the charges to which you have pleaded guilty. She, together with some other referees, state that you have conveyed your regret and remorse on a number of occasions.
Sentencing Considerations
40Mr Edney highlighted number of matters in mitigation.
41First is your plea of guilty. Your plea of guilty in the particular circumstances of this case must be considered against the background of the criminal process. You initially ran a trial, denying the allegations. Having been granted a retrial and following the empanelment of a second jury, the matter resolved and you pleaded guilty. The retrial was to be run by replaying the recorded evidence of the victims. Thus, your plea of guilty has not spared the victims having to give evidence, however, it has brought closure to the victims and the family. The victims have been spared the trauma of having to wait until a further trial was conducted and your plea has ultimately vindicated the victims. Your plea of guilty has also facilitated the course of justice by bringing the matter to a conclusion, saving court time and expense.
42Your plea carries additional weight, which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[8]
[8]Worboyes v The Queen [2021] VSCA 169 at [39].
43It was submitted on your behalf that over and above your plea of guilty, you have demonstrated genuine remorse. This is primarily based on comments in some of the references tendered. However, it is difficult to ascertain from the references whether your remorse is in relation to the impact your offending has had on your family or whether it is genuine remorse in relation to the impact your offending has had on the victims. I note, however, that in a pre-sentence report prepared by Corrections Victoria, the writer notes that while you have difficulty remembering the circumstances of the offending, you spoke about the impact of the offending on the victims and the wider family. Given the history of this matter, in my view, while late, you are beginning to demonstrate a degree of remorse.
44It was submitted that delay is a relevant matter that should be taken into account as a matter in mitigation. As you ran a trial, which is your right, that process necessarily extended the time in which the matter progressed through the criminal justice system. Further delays occurred as a result of the appeal to the Court of Appeal. However, since the Court of Appeal decision in 2019, there has been a further delay, although I note that interlocutory proceedings created some of that delay leading up to the second trial.
45While some of the delay is as result of you exercising your right to plead not guilty, I accept that given your age and range of health issues, the anxiety and stress of the long criminal process has taken its toll.
46I take into account your physical and mental health conditions. It is clear that you are suffering from a number of chronic conditions as outlined above, involving a number of specialists and management by a general practitioner. Undoubtedly, a further term of imprisonment would be more burdensome to you than to someone in good health as you continue to monitor and be treated for those conditions.
47You are 80 years of age and thus any further term of imprisonment represents a larger portion of your remaining life expectancy, which I take into account.
48I assess your prospects of rehabilitation as very good. You have no prior criminal history and there has been no subsequent offending. Further, you have the ongoing support of your wife, your family and a network of long-term friends.
49In cases such as this, general deterrence, just punishment and denunciation of your conduct, are paramount sentencing considerations. A message must continue to be conveyed that the sexual abuse of children cannot be tolerated. As to specific deterrence, given your age, ill health and lack of prior criminal history, in my view, specific deterrence need not carry weight in the sentencing discretion.
50You served 350 days before you were bailed following the Court of Appeal decision in 2021. Mr Edney submitted that in all the circumstances, including the delay, your age and your ill-health, that this matter could be dealt with by way of a combination sentence pursuant to s 44 of the Sentencing Act 1991, where the prison component would be the 350 days you have served, together with a community correction order.
51Mr Teo, who appeared on behalf of the Director of Public Prosecutions, submitted that the seriousness of the offending demands that a head sentence and a non-parole period ought to be imposed.
52I had you assessed for a community correction order, and while you have been found suitable, in my view, in all the circumstances the relevant sentencing considerations are unable to be met by the imposition of a combination sentence.
Sentence
53Mr Morris, would you please stand.
54Henry Morris, on Charges 1 and 2, incest, you are convicted and sentenced to 2 years and 6 months imprisonment on each charge. I direct that 6 months of the sentence on Charge 2 be served cumulatively on Charge 1, making for a total effective sentence of 3 years imprisonment. I direct that you serve 18 months imprisonment before becoming eligible for parole.
55Pursuant to s 18 of the Sentencing Act 1991, I declare that 350 days be reckoned as the period of imprisonment already served under the sentence I have imposed.
56Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to 5 years imprisonment with a non-parole period of 3 years.
57As you have been convicted on two Class 1 offences, you are a registerable offender and pursuant to s34(1)(c) of the Sex Offenders Registration Act 2004, you must comply with reporting obligations for the remainder of your life.
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