Morgan v The Queen

[2014] VSCA 303

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0127

ROBERT MORGAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 November 2014
DATE OF JUDGMENT:	21 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 303
JUDGMENT APPEALED FROM:	DPP v Morgan (Unreported, County Court of Victoria, Judge Cannon, 23 May 2014).

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CRIMINAL LAW — Sentencing — Sexual offences against children — Offences decades old — Ill-health of offender — Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Ms K Argiropoulos	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

1. I will ask Priest JA to deliver his reasons.

PRIEST JA:

Introduction

1. Between 1966 and 1973, when the appellant was aged 23 to 29 years of age, he committed a number of sexual offences against three siblings, LF, DF and PF, whose ages at the relevant time ranged from seven to 12 years.

1. The appellant’s offending first came to light in the mid-1980s, when LF reported his misconduct to police.  No charges were laid, and the appellant was not apprised of the report when it was first made.

1. PF made his own report to police on 26 October 2011.  LF once again made a report two days later, on 28 October 2011.  DF reported his allegations on 14 November 2011.

1. On 6 March 2012, the appellant was interviewed by police.  He claimed to have no recollection of the events, having suffered a stroke which affected his memory. 

1. Following pleas of guilty in the County Court, on 23 May 2014 the appellant was sentenced to a total effective sentence of two years and one months’ imprisonment, upon which a non-parole period of 12 months was fixed, according to the following table:

Charge	Offence		Sentence	Cumulation
1	Indecent assault on a girl under 16[1]		12 months	Base
2	Indecent assault on a male person[2]		10 months	4 months
3	Indecent assault on a male person		4 months	1 month
4	Indecent assault on a male person		10 months	4 months
5	Indecent assault on a male person		10 months	4 months
Total effective sentence		2 years and 1 months’ imprisonment
Non-parole period		12 months’ imprisonment
Section 6AAA statement		3 years and 6 months’ imprisonment with a non-parole period of 2 years
Other orders		· Sentenced as a serious sexual offender on charges 1 to 5 pursuant to s 6F of the Sentencing Act 1991 · Registered as a sex offender for life pursuant to s 34 of the Sex Offenders Registration Act 2004 · Forensic sample pursuant to s 464ZF(2) of the Crimes Act 1958

[1]Crimes Act 1958, s 55(1). The maximum penalty was imprisonment for three years.

[2]Crimes Act 1958, s 68(3A). The maximum penalty was imprisonment for five years.

1. The appellant appeals against sentence pursuant to leave granted by a judge of this Court on 16 September 2014, on a single ground which asserts that, ‘The total effective sentence and non-parole period are manifestly excessive’.  Having now had the benefit of full argument on the appeal, however, I would dismiss the appeal.

The offending

1. The appellant was born on 16 July 1943 and is now 71 years of age.  He was a trusted friend of the complainants’ family, and offended against the three child complainants in their family home, their holiday home and in his own residence.  The appellant met the family in 1965, when the family bought a holiday home in country Victoria.  He would regularly look after the complainants or take them on camping trips.  The three complainants are PF, a male, who was born on 14 April 1961, and is now aged 53 years;  his sister, LF, who was born on 2 January 1959, and is aged 55 years;  and their brother, DF, who was born on 3 September 1957, and is 56 years old.

1. Charge 1 was an indecent assault on a girl under 16, and involved LF.  Between 2 January 1966 and 7 November 1967, when LF was aged between seven and eight years, she was on top of the appellant when he put his hand down the back of her pants and inserted a finger into her vagina.  This activity caused pain and bleeding, and LF cried.  The appellant tried to quieten her down, cuddling her and promising her a reward if she did not tell anyone.  He said it was a ‘special secret’, and if she told anyone she would get into trouble.  This offence occurred in LF’s family holiday home, when the appellant was aged between 22 and 24 years.

1. Charge 2 was a representative charge of indecent assault on a male person, and concerned DF.  On a weekend between 8 November 1967 and 2 September 1969, when DF was 10 or 11 years old, he and the appellant went alone to DF’s family holiday home.  They slept in the same bed.  In a position described as ‘doggy style’, the appellant rubbed his penis between the cheeks of DF’s buttocks.  DF recalls that he was uncomfortable and the activity hurt.  The event in charge 2 is representative of a number of similar occasions which occurred over a two year period.  DF said that the offending occurred every time he and the appellant went to the holiday home.  The appellant was aged between 24 and 26 when this offending occurred.

1. Charges 3 to 5 were indecent assaults against a male person, and concerned PF.  On an occasion between 14 April 1970 and 13 April 1972, when PF was aged nine or 10, the appellant touched and shook PF’s penis in the garage of his family home (charge 3).  The appellant told PF about a special club he was in with PF’s brothers and sisters, and said that it would be good if he joined so that they could go away on trips together on weekends.  On another occasion, between 14 April 1970 and 13 April 1973, when PF was aged between nine and 11 years, he and the appellant were in the lounge room of the appellant’s house .  The appellant played with PF’s penis, and rubbed his penis between his buttocks (charge 4).  On a further occasion, between 14 April 1970 and 13 April 1972, when PF was aged nine or 10 years old, he, DF and the appellant were all in the same bed at PF’s family holiday home.  The appellant touched PF’s penis, and put his own penis between the cheeks of PF’s buttocks, while making grunting noises (charge 5).  PF recalls having a wet backside.  The appellant was aged between 26 and 29 years in the relevant period.

Submissions on the appeal

1. Before turning to the parties’ submissions, it should be noted that, in the week leading up to the hearing of the appeal, the solicitors for the appellant asked for an order pursuant to s 317 of the Criminal Procedure Act 2009 seeking the production of documents relating to the appellant’s medical condition held by Justice Health.  As a result, on 17 November 2014, the Court made an order for production of medical records held by Justice Health.  The Court further ordered that any application to rely on fresh evidence be filed by 2.00pm on 20 November 2014.  In the result, no application to rely on fresh evidence was made, and no further material from Justice Health was put before the Court.

1. In an endeavour to make good the claim that the sentence was manifestly excessive, counsel for the appellant submitted that the appellant had pleaded guilty in circumstances where the defence had intended to make a permanent stay application which, it was submitted, was ‘not without merit’.  The offending occurred over forty years ago, at a time when the appellant had no prior convictions.  In the written case, counsel submitted that although the appellant had incurred convictions subsequently to the offending with which the present appeal is concerned, the subsequent offending took place over twenty years ago and there has been no further offending since.  Attention was drawn to the report of forensic psychologist Keith Smith, dated 28 April 2014, and the fact that the appellant had been sexually assaulted as a child

1. It was submitted that the appellant has a solid work history, having had employment as a truck driver, a boiler maker and a drug and alcohol counsellor.  He stopped working at 60 years of age because of a decline in his health.  The appellant had completed Year 12, and later obtained a degree in social science.  Prior to his imprisonment, the appellant had lived with his wife, son, daughter-in-law and grandson in South Australia.  His wife received a carer’s allowance to look after him.  He has the support of his family.

1. The appellant’s counsel referred to various medical and psychological reports, including the report of  geriatrician, Dr Veera Makkada dated 7 February 2014, which showed that the appellant had been formally diagnosed with major depressive disorder which, despite treatment, has not improved.  He remains on anti-depressant medication.

1. It was submitted that the appellant is in extremely poor physical health, suffering from a number of serious medical conditions for which he is prescribed ‘myriad medications’.  His daily mobility and functioning, counsel submitted, are severely impaired and, prior to being imprisoned, he was wholly dependent on his family (in particular, his wife) to function properly.  Among his health problems, the appellant suffers from ‘type 2’ diabetes, osteoarthritis, chronic cardiac ischemia, chronic renal impairment, gout, hepatitis C, vascular dementia and past respiratory failures.  He is confined to a wheelchair most of the time and requires an oxygen mask to breathe at night.  Currently he is being held in the hospital wing of Port Phillip Prison.  

1. Ultimately, counsel for the appellant submitted that the sentence imposed does not adequately reflect the appellant’s age, ‘and, more importantly, his significant and severe health problems’.  General deterrence, counsel submitted, must have been given too much weight by the sentencing judge.

1. The respondent submitted that the sentencing judge took into account all relevant factors, and the sentence was within an appropriate range.  There is nothing to indicate, so it was argued, that the judge gave general deterrence inappropriate weight.  Offences against children are serious.  Community denunciation was required.  Moreover, as best she was able, the sentencing judge had regard both to sentencing practices as they applied at the time of the offending and to current sentencing practices.[3]

   [3]Stalio v The Queen (2012) 223 A Crim R 261.

1. With respect to the appellant’s health problems, the respondent argued that the judge accepted that he was in poor health, and took into consideration all of the appellant’s documented ailments.  The judge also accepted that the appellant had significant medical difficulties, including a lack of mobility and mental health problems, and took into consideration that those conditions would make the appellant’s time in custody more difficult.  It was contended, however, that the appellant’s medical difficulties cannot ‘overwhelm other sentencing considerations’.  The respondent submitted that significant factors that militated against a non-custodial sentence included the gross breach of trust; the significant period of offending; the young age of the children; the objective seriousness of the offending (which included penetration); and the profound effect of the offending on the victims.  General deterrence remained important.

Resolution

1. Sentencing is a discretionary judgment.  There is no single correct sentence for an offender for an offence.[4]  On a ground claiming that a sentence is manifestly excessive, this Court’s power to intervene can only be engaged if the Court is satisfied that the sentencing judge’s discretion miscarried because in the result the judge imposed a sentence that was beyond the range of sentences that could be justly imposed for the offending consistently with sentencing standards.[5]  A finding that a sentence is manifestly excessive is a conclusion[6] arrived at after instinctively synthesising all relevant aspects, including the circumstances of the offences and the offender, and those factors going in aggravation and in mitigation.  The Court must be astute not to intervene simply because its members individually would, if sentencing at first instance, have imposed a different sentence.  It is only if it is plainly apparent that the sentence is excessive that the Court is entitled to intervene.

   [4]Bugmy v The Queen (2013) 249 CLR 571, 588–9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); Kentwell v The Queen (2014) 313 ALR 451, 462 [42] (French CJ, Hayne, Bell and Keane JJ).

   [5]Ibid. See also Munda v WA (2013) 249 CLR 600, 613 [34] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).

   [6]Dinsdale v The Queen (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

1. Having carefully weighed the competing considerations relevant to the imposition of the sentence in the present case, I am not persuaded either that the individual sentences imposed are manifestly excessive, or that the orders for cumulation have resulted in a total effective sentence which is excessive.  Further, the non-parole period fixed is, in my view, within the bounds of sound discretionary judgment.

1. There were three child victims in this case, each of whom suffered profoundly as a result of the appellant’s predations.  Although the Court must avoid acting according to an emotional response engendered by the content of the victim impact statements, and must approach the material objectively, nonetheless the very significant impact on the victims had to be given weight in the exercise of the sentencing discretion.  The offences involved a gross breach of trust over an extended period.

1. A troubling aspect of the case is the very long period which has elapsed since the offending took place and the prosecution of the appellant.  It is a profitless exercise to speculate upon what might have been the result if police had acted on LF’s complaint made in the mid-1980s.  The fact is, police did not act upon it, and it does not appear that the appellant knew of it.  In oral argument, counsel confined himself to the effect of the delay between the time when the second reports were made to police and the final resolution of the charges.  In sentencing the appellant, the judge needed to have regard to the delay and factor that delay into the sentence to be imposed.  I cannot discern from the sentence imposed that these matters were not given due weight.

1. One of the very important factors animating the judge’s exercise of discretion is the appellant’s manifold health problems.  But again, it seems to me, that the

individual sentences imposed, the total effective sentence and non-parole period demonstrate that the appellant’s medical condition — including his major depressive disorder — was afforded due weight.  Despite the appellant’s medical condition, general deterrence remained — albeit moderated — an important sentencing consideration.  It does not appear to me that the sentencing judge gave it undue weight.

1. For the sake of completeness, I should observe that it does not appear to me that the judge failed to have due regard to pertinent sentencing practices.

1. I detect no error.  The appeal must be dismissed.

NEAVE JA:

1. I agree with Priest JA that the appeal should be dismissed.  The judge's sentencing reasons were careful and comprehensive and took account of all relevant sentencing factors.  The individual sentences and the total effective sentence imposed were modest, having regard to the seriousness of the offences, their effect on the three complainants and the weight to be given to general deterrence.  The sentence clearly reflected the appellant's age and ill health and fell well within the range of sentences which could be imposed in the reasonable exercise of the sentencing discretion.

KYROU JA:

1. I agree with the reasons for judgment of Priest JA.

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