Morrison v R

Case •

[2022] NSWCCA 158

•

20 July 2022

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Morrison v R [2022] NSWCCA 158
Hearing dates: 15 June 2022
Decision date: 20 July 2022
Before: Leeming JA, Garling J, Lonergan J
Decision:

1. Refuse leave to appeal against conviction.

2. Grant leave to appeal against sentence.

3. Allow the appeal against sentence.

4. Quash the sentence imposed by the District Court on 16 April 2021, and in lieu thereof, sentence the applicant to an aggregate sentence of 10½ years imprisonment commencing on 22 August 2019 and expiring on 21 February 2030, with a non-parole period of 7 years expiring on 21 August 2026.

Catchwords:

CRIME – appeals – appeal against conviction – applicant charged with sexual offences upon 13 year old girl – absence of consent an element of two of the counts – oral and written jury direction identified five pathways Crown could establish knowledge of absence of consent – fifth pathway was lack of reasonable basis for belief that complainant was consenting – addition “not” erroneously included in fifth pathway in oral and written direction – error unnoticed during trial – whether error amounted to miscarriage of justice – where absence of reasonable grounds for honest belief removed from issues at trial – where error wholly to advantage of accused because it denied one pathway by which Crown could establish knowledge of absence of consent – no miscarriage of justice established

CRIME – appeals – appeal against sentence – aggregate sentence imposed for five sexual offences – all offences committed upon same complainant, at same location, as a single episode – extremely high level of effective concurrency required – aggregate sentence did not reflect sufficient level of effective concurrency – Evans v R [2017] NSWCCA 281 applied – sentence quashed and applicant resentenced

Legislation Cited:

Crimes Act 1900 (NSW), ss 61HA, 61HE, 61J, 66C, 66DB, 80AB, 578A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 44, 53A

Criminal Appeal Act 1912 (NSW), ss 5, 6

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Campbell v R [2014] NSWCCA 175; 312 ALR 129

Cesan v R (2008) 236 CLR 358; [2008] HCA 52

CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25

Edwards v R [2022] NSWCCA 22

Evans v R [2017] NSWCCA 281

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63

JM v R [2014] NSWCCA 297; 246 A Crim R 528

Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242

Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

Lane v R [2013] NSWCCA 317

Malicki v R; R v Malicki [2015] NSWCCA 162

McGrath v R [2010] NSWCCA 48; 199 A Crim R 527

Mehajer v R [2014] NSWCCA 167

Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59

Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Harris [2007] NSWCCA 130

R v Wheeler [2000] NSWCCA 34

Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6

Category:Principal judgment
Parties: Glenn Ian Morrison (Applicant)
Regina (Respondent)
Representation:

Counsel:
G Wendler (Applicant)
A Bonnor (Respondent)

Solicitors:
Monica McKenzie Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2019/262815
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
17 August 2020
Before:
Culver DCJ
File Number(s):
2019/262815

Judgment

  1. THE COURT: Mr Glenn Ian Morrison seeks leave to appeal from (a) his convictions on two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW), and (b) an aggregate sentence of 13 years imprisonment with a non-parole period of 8 years and 8 months. He was also found guilty of 3 counts of sexual touching of a child over 10 years of age and under 16 years of age contrary to s 66DB(a) of the Crimes Act, from which no appeal is brought. He was acquitted of a fourth count of sexual touching.

  2. The appeal against conviction has a single ground. It is that the oral and written direction bearing upon the issue of consent to the aggravated sexual assault counts was wrong, through the inclusion of the word “not”. The error is conceded, although its materiality is contested. The error was unnoticed at trial, and only picked up by the trial judge when revising her sentencing remarks following the filing of proceedings in this Court. Although leave is required pursuant to each of s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), the Crown did not oppose leave save on the basis of the underlying substantial absence of merit.

  3. Simultaneously, the Court heard an application for leave to appeal against the aggregate sentence pursuant to s 5(1)(c) of the Criminal Appeal Act. Leave is sought in relation to two related grounds. The first turns upon what is said to be the manifestly excessive indicative sentences contributing to the aggregate sentence imposed; the second is that the aggregate sentence itself is manifestly excessive.

  4. The most efficient course, in light of the narrowness of the scope of the first ground, is to address the background only insofar as is necessary to address the submissions on that ground, and then to return to the matters pertaining to the appeal against sentence.

Background

  1. On 19 August 2019, the complainant was aged around 13 years and 3 months. She cannot be named or otherwise identified, by reason of s 578A of the Crimes Act 1900. After an altercation with her mother, she had planned to sleep at a friend’s house on that evening, and after school she went to Manly Wharf to meet her friend. She was wearing a hoodie with the name of a high school on it. The friend did not arrive.

  2. While waiting at the wharf, she met the applicant. The pair had never previously met. He was aged 52 and carried a guitar. He offered her a cigarette, which she accepted. She was cold, and he offered to take her back to his home. CCTV footage at Manly Wharf at 9.18pm may show the pair walking holding hands, although it is not entirely clear from the footage. A deckhand gave evidence that he saw the pair, asked the complainant whether she was OK to which she nodded her head and that the applicant reeked of alcohol.

  3. The pair travelled by ferry to Circular Quay, and thence to the public bar of a hotel located at Circular Quay. A security guard and a bar attendant gave evidence that the applicant described the complainant as his daughter, and that she waited outside while he had a beer. The pair then travelled by train to Mascot and then to the applicant’s home, a room in a shared house in Mascot.

  4. The sexual touching and sexual assaults found by the jury took place in the applicant’s room in the early hours of the following morning. The applicant accepted that much of the sexual touching occurred. He accepted that he had engaged in a kiss and put his tongue in the mouth of the complainant, and had made two “hickeys” on the complainant’s neck and chest, of which there was photographic evidence (the same conduct was described as “sucking or love-biting”). The applicant also accepted that penile-vaginal intercourse had occurred; this was the 6th count on the indictment. The applicant volunteered committing an act of cunnilingus which became the other count of aggravated sexual assault (the 4th count on the indictment), which had not been mentioned in the complainant’s accounts. He maintained that the kissing, biting and acts of sexual intercourse were consensual, and that he believed that the complainant was 16 or over. He denied that he tapped his penis upon the complainant’s lower torso, which was charged as the 5th count, of which he was acquitted.

The elements of the offences giving rise to counts 4 and 6

  1. The misdirection which is the subject of ground 1 only applied to the convictions on counts 4 and 6. It is important to be clear what the issues were in relation to those counts, and the position is quite complex.

  2. Section 61J(1) of the Crimes Act provides:

“Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.”

  1. The conduct giving rise to each of counts 4 and 6 fell within the definition of sexual intercourse in s 61HA. The circumstance of aggravation for each of those counts was that the complainant was under the age of 16 years: s 61J(2)(d).

  2. The elements of consent and knowledge of consent were affected by s 61HE(2) and (3). Those provisions were repealed and replaced by new subdivision “Consent and knowledge of consent” by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW). But s 61HE(2) and (3) were in force when the conduct giving rise to counts 4 and 6 took place, and provided:

“(2) Meaning of ‘consent’ A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.

(3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if:

(a) the person knows that the alleged victim does not consent to the sexual activity, or

(b) the person is reckless as to whether the alleged victim consents to the sexual activity, or

(c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.”

  1. Critically for present purposes, the three paragraphs of s 61HE(3), any of which was sufficient to establish knowledge that the complainant did not consent, gave rise to five “pathways” or subparagraphs in the direction given to the jury.

  2. Section 80AB(3) provided that if the jury were not satisfied that an accused was guilty of the offence under s 61J, but was satisfied that an accused was guilty of the offence under (relevantly) s 66C, the jury could find the accused guilty of the latter offence. Sections 66C(1) and (3) created offences of sexual intercourse with a child over 10 and under the age of 14, or over 14 but under the age of 16. Those offences carry lesser maximum sentences (of 16 years and 10 years’ imprisonment, respectively) than the offence created by s 61J (which carries a maximum sentence of 20 years) and do not include as an element the absence of consent of the child complainant.

  3. As Macfarlan JA explained in McGrath v R [2010] NSWCCA 48; 199 A Crim R 527 at [11], the key difference between the offences under (relevantly) s 61J and the statutory alternative is that the former required proof of absence of consent and knowledge of absence of consent, even though the complainant was under 16. Section 61HE did not apply to the statutory alternative, which required merely proof that the complainant was under 16 and knowledge of the complainant’s age. However, they were subject to a “defence” of honest and reasonable mistake of fact as explained in CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25: if the accused satisfied an evidential burden of establishing a belief that the complainant were 16 or older, then it was for the Crown to prove beyond reasonable doubt that the accused did not believe on reasonable grounds that the complainant was 16 or older.

  4. The conduct giving rise to counts 4 and 6 was accepted to have occurred. The real issues at trial on those two counts of aggravated sexual intercourse were consent, belief as to consent and belief as to age. However, even if the Crown failed to establish an absence of consent and an absence of knowledge of consent as defined by s 61HE(2) and (3), the jury could still convict on the statutory alternative in s 66C(1). It was uncontroversial that the applicant would satisfy the evidential burden as to his belief that the applicant was at least 16, thereby engaging the defence of honest and reasonable mistake of fact, and thus the real issue on the statutory alternative counts was a very narrow one, namely, whether the applicant believed on reasonable grounds that the complainant was 16 or older.

  5. The upshot is that the honesty and reasonableness of the applicant’s belief of the complainant’s age was central to the trial. If the Crown proved to the criminal standard that he did not reasonably believe that the complainant was at least 16, the jury would without more be entitled to convict on the statutory alternatives under s 66C(1). If the Crown went further and proved that the complainant did not consent to the sexual intercourse, and that the applicant had knowledge of that within s 61HE(3), then the jury could convict on the more serious offences under s 61J.

Overview of evidence re consent, knowledge of consent, and belief as to age

  1. There were no witnesses to any of the sexual acts save for the complainant. The applicant did not give evidence, a course he was entitled to take, but participated in an electronically recorded interview on 22 August 2019, which was played to the jury.

  2. The jury also saw an electronically recorded interview made by the complainant on 21 August 2019, as well as her evidence in chief and cross-examination which were pre-recorded shortly prior to the trial in July 2020.

  3. During the applicant’s interview, the applicant said, repeatedly, “she told me she was 19” (answers 47, 119, 120, 706). Most elaborately, he said:

“Well I asked her, I said, How are old are you, ‘cause you know, she said to me, well I can make love to you and I said, How old are you, she said, 19, and I said, well, like, I do believe that you are 19, I didn’t say, show me your ID, I had not reason to ask her, you know what I mean” (A120).

  1. He said she looked “18 or 19 at, at the max” (A223). He said he would know if the complainant was 13, because he had a 24 year old daughter (answers 709-710).

  2. Concerning consent, the applicant said that she was the “more dominant one”, and said “Please make love to me” (A287), and “Can you make love to me” (A125) and “And then she said after that, Do you want to make love to me and that, like, she just went intimate with me and yeah, that was it” (A249) and “she asked me to make love to her so I did, you know” (A262).

  3. It is necessary to provide a little more context from the complainant’s evidence in order to explain what was said about consent and her age.

  4. The complainant said in her interview on 21 August that she had accepted a cigarette from the applicant, and said “I think he was a bit intoxicated though cause he kind of seemed like it” (A129). She said she had a few small sips of liquid from a bottle the applicant had, which she said had a weird taste, which she had never tasted before (A246-255). She said the applicant had not asked her how old she was (A131). She said that on the ferry trip “He went around to talk to randoms and then he was just going on about the same things” and then “he kept talking to me about the same exact things and he kept, he like kept repeating everything and that” (A189-190). She said that the applicant was next to her when security declined to let her into the hotel at Circular Quay without ID, and that she told them that she didn’t have ID “Cause I’m not 18”.

  5. The complainant said that the applicant asked “Can I kiss you” to which she replied “No” and then when he asked “Why” she said “Just cause”, and that he still kissed her. She said she told him “Stop, stop” when he was taking off her top but that he continued.

  6. The complainant was cross-examined at a pre-recorded hearing on 14 July 2020. She accepted that she could have left when the applicant was in the hotel at Circular Quay, or obtained assistance from the security guard. She accepted that she could have left the house after the applicant had (according to the complainant) forcibly kissed her and had left the room to have a shower. It was common ground that after the kissing but before the hickeys, the applicant left the room to have a shower and was gone for some minutes.

  7. The complainant said that at around 3.00am she started to fall asleep, and noticed that the applicant came onto the bed with her and started taking off her top. She said “Stop, stop”. She was asked questions about the hickeys on her neck and on her chest just above her breast, but had only limited recollection about how the applicant had come to perform those acts. In relation to the first, she gave this evidence:

“Q419. And what have you got on your neck there?

A. That’s like a hickey it was when I was like half asleep and I wasn’t like, I wasn’t actually mentally there and he was like, yeah.

Q420. OK.

A. It’s kind of blurry too as well, everything.

Q421. And what makes you say you weren’t mentally there?

A. ‘Cause when I’m tired, I was, I was like ready to fall asleep, I was like, I’m not, I’m like, my brain doesn’t like keep going, kind of like shutting down already without, but I’m still like awake,

Q422: OK. And so how did you get that hickey on your neck there?

A. From him.

Q423. Yeah. And where were you when he did that?

A. I think I was, I was still on the bed definitely I think. I was laying down though.

Q424. Yep. And were you laying on your back, on the front or something else?

A. My side.

Q425. On your side. OK. And which way were you facing?

A. This way.

Q426. OK. All right. And so tell me where Glenn was when he did that?

A. I don’t know. I was just like, I was just laying there ---

Q427. Yeah

A. --- really like just tired like really tired.”

  1. The evidence concerning the second hickey was similarly vague.

  2. The complainant said she went to sleep, and woke up to find herself naked in the applicant’s bed. She described the applicant tapping her body with his penis. The complainant gave evidence of feeling pressure into her vagina, that she didn’t feel comfortable, that there was an in and out motion, that she didn’t remember how long that lasted, and that she felt pain afterwards.

  3. The complainant gave evidence that she never told the applicant her age, and that there was no discussion about that. She was asked in cross-examination whether she told the applicant that she was 19 when she was at his home, and she said she did not.

  4. The following morning, the applicant said that she had to go, dressed, left and caught public transport to school. That evening, she was medically examined, which showed bruises consistent with counts 2 and 3, a small laceration to the labia minora, and a laceration to the hymen which indicated a recent penetrating injury. The following day she participated in her electronically recorded interview. The applicant was arrested the day after, and was interviewed at that time.

The erroneous direction to the jury

  1. On the sixth day of the trial, the judge provided an “elements document” to counsel, who reviewed it in some detail. Each had the chance to review it overnight.

  2. On the seventh day of the trial, the primary judge confirmed with each counsel that they approved of the document going to the jury. Thereafter, the jury was handed the document which became MFI 16. The relevant paragraph (paragraph 3(e)) was read verbatim. The elements for count 4 were as follows:

“1. The Accused had sexual intercourse with [the complainant] by kissing her vagina; and

2. that was without the consent of [the complainant]; and

3. whilst the Accused:

(a) knew that [the complainant] was not consenting to the sexual intercourse; or

(b) was reckless in that he failed to consider whether or not she was consenting at all and he just went ahead with the sexual intercourse, even though the risk that [the complainant] was not consenting would have been obvious to someone with the Accused’s mental capacity if he turned his mind to it; or

(c) was reckless in that realised the possibility that [the complainant] was not consenting, but he went ahead regardless of whether or not she was consenting; or

(d) did not honestly believe that [the complainant] was consenting; or

(e) if he did not honestly believe [the complainant] was consenting, had no reasonable grounds for believing that she consented to the sexual intercourse; and

4. at the time, [the complainant] was under the age of 16 years, namely 13 years old; and

5. the Accused either did not:

(a) honestly believe; or

(b) have reasonable ground to believe that [the complainant] was at least 16 years old.” (emphasis added)

  1. The elements for count 6 were relevantly identical.

  2. The word “not” was, wrongly, included in paragraph 3(e) of the elements for each of counts 4 and 6. The word has for convenience been reproduced in bold above, although it was not given any emphasis in the document given to the jury. The transcript records that when paragraph 3 was read verbatim, the word “not” was included.

  3. The entitlement of an accused to a trial in accordance with law is directly impacted by any error in the directions given to the jury in framing the issues for their determination. Mr Wendler, who appeared in this Court but not at trial, for the applicant, gave attention to the oral direction. The written document was more important. The primary judge herself acknowledged when she read from it that there was a lot of information which was difficult to absorb, and reassured the jury that they would have the written document in the jury room. The effect of the written document, present in the jury room during their deliberations over some four days, at the very time the verdicts were being reached must have been far more palpable than the recollection of a very long sentence read out to them days earlier: see Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242], Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 at [70] and Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [86].

  4. Mr Wendler maintained that the error in both the oral and written directions went to the “root” of the trial. The purpose of that submission was to fend off the Crown’s submission that this was a case for the application of the proviso: see for example Wilde v The Queen (1988) 164 CLR 365 at 373; [1988] HCA 6. There is no rigid formula for determining the circumstances in which a misdirection caused such a miscarriage of justice so as to render the proviso inapplicable: see Mehajer v R [2014] NSWCCA 167 at [134] and the cases there cited. However, before reaching any consideration of whether the proviso applied, or was capable of applying, it is first necessary for the applicant to establish a miscarriage of justice. For present purposes, as the Crown submitted, establishing a miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act 1912 (NSW) will subsume the issue of leave pursuant to r 4.15. If the applicant can establish a miscarriage of justice, there should be a grant of leave, and if there is no miscarriage of justice, there is no basis for granting leave.

  5. Mr Wendler submitted that the pathway by which some or all of the jury reached their guilty verdicts on counts 4 and 6 was obscure. Of course that is so. But the question of whether there has been a miscarriage by reason of the misdirection is not a merely theoretical one. It is grounded in actual prejudice or a non-negligible risk of real prejudice. As French CJ said in Cesan v R (2008) 236 CLR 358; [2008] HCA 52 at [64]:

“The first question in these appeals is whether there was a ‘miscarriage of justice’ within the meaning of s 6(1) of the Criminal Appeal Act. The second question is whether, if there were a miscarriage of justice, it was nevertheless not ‘substantial’ within the meaning of the proviso to s 6(1).”

  1. The same point was made by the joint judgment at [112]-[122], and more recently in Edwards v R [2022] NSWCCA 22 at [4]:

“consideration must be given to the question of whether the jury’s verdict could have been affected by what was said to have constituted an error or miscarriage of justice. If that conclusion is reached there is no room for the operation of the proviso.”

  1. Immaterial errors in a direction to the jury, whether in oral or written form, do not constitute a miscarriage of justice. The error which was made in the oral and written directions was immaterial for two reasons. The first is that it was far removed from the issues calling for resolution. The second is that it was favourable to the accused, in the sense that it removed a possible pathway which, in principle, was available for the jury to reach a conclusion of guilt on counts 4 and 6, and accordingly could not have contributed to the guilty verdicts.

Paragraph 3(e) was well removed from the issues for the jury to resolve

  1. The issues to be resolved by the jury concerning consent on the s 61J offences charged as counts 4 and 6 were whether the complainant consented to the acts of sexual intercourse which the applicant accepted occurred, and whether his knowledge or recklessness or belief satisfied s 61HE(3). Consistently with their verdicts, the jury must have found to the criminal standard that the complainant had not consented. That necessarily involved a rejection of the applicant’s account that the complainant told him “Please make love to me” and “Can you make love to me” and his other variants to that effect reproduced above.

  2. The rejection of that evidence did not, of course, entail that the Crown had made out the mental element of these offences. It was also necessary for the Crown to establish either knowledge of the lack of consent, or recklessness as to consent, or absence of reasonable grounds for believing consent, thereby satisfying one of the paragraphs in s 61HE(3).

  3. Except for the fact that the direction which was read to the jury and contained in the document provided to the jury included paragraphs directed to s 61HE(3)(c), that basis of proving knowledge of absence of consent was well removed from the issues presented to the jury.

  4. This is most clearly seen from the defence address to the jury. There was no fallback case, to the effect that if the applicant’s clear evidence was insufficient to give rise to a reasonable doubt, they should nonetheless acquit on counts 4 and 6 because the non-committal responses of a very tired young girl could reasonably have been regarded as amounting to consent. The fact that the defence did not run such a case is unsurprising, because it would be inconsistent with the answers given in the applicant’s electronically recorded interview. Instead, the defence case addressed the issue of consent to counts 4 and 6 directly:

“So her evidence, which is about page 30 of the JIRT, makes it quite clear that there’s a 20 minute shower and it was after the kiss. What was stopping her from getting out? Nothing, I suggest to you. You know where the police station was because that’s where they stopped. She remained there because she wanted to be there with Mr Morrison. She had consented to being kissed by Mr Morrison. In fact, she invited Mr Morrison’s kiss.

You should approach, in my respectful submission to you, the lack of detail and the lack of recall of the remaining sexual activity by the complainant, not as a result of somehow feeling sleepy or some notion that there was – it’s the alcohol that did that to me – in fact, we – I’ve already alerted you to the sample of blood and urine that was taken some 24 hours later that showed, except for cannabis, there was nothing else in her system. There’s simply no reason to accept her evidence on that over Mr Morrison’s evidence. She was awake throughout the sexual interlude. She was awake and consenting and participating in the manner that was described. Her evidence is as equally as important as Mr Morrison’s evidence, who’s evidence is also as equally important as the complainant’s evidence. It’s not sheeted as second place. It’s not the way it works.”

  1. However, it must be acknowledged that s 61HE(3)(c) was not entirely divorced from the issues before the jury. After all, it was included on the elements document that was read to the jury and provided to the jury by the judge. And some aspects of the Crown address were capable of being regarded as engaging this paragraph. The general tenor of the complainant’s evidence was that she had a very poor recollection of what occurred, because she was drifting in and out of sleep (she was “half asleep”, she wasn’t “actually mentally there”, she was “ready to fall asleep”). Evidence such as that informed the Crown’s submission to told the jury:

“The Crown say she was not consenting. The Crown say she was verbally, as a child would, communicating to Mr Morrison to stop doing what he was doing. She was telling him no. It must have been clear the Crown say, to him that in the circumstances that presented themselves that this child was not consenting to his advances.”

  1. Accordingly, this ground is to be addressed on the basis that some consideration might have been given by the jury to whether the applicant had a reasonable basis for believing the applicant consented. But for the second reason below, we doubt that we would have concluded that the error was one which did not result in a miscarriage of justice, and it would thus have been necessary to consider the application of the proviso.

Insofar as the error had any operation, it worked to the applicant’s advantage

  1. If paragraph 3(e) of the document which was read to the jury and went to the jury room is read literally, then it imposes an additional requirement upon the Crown in order to establish guilt. In addition to establishing that the applicant did not honestly believe the complainant was consenting, the Crown also had to establish that he had no reasonable grounds for believing that she consented to the sexual intercourse. Of course, if the applicant was shown to the criminal standard not honestly to believe that the complainant was consenting, then this element of the offending was satisfied.

  2. That is to say, in principle the Crown could establish knowledge of absence of consent by showing that even if the applicant honestly believed the complainant was not consenting, he had no reasonable grounds for that belief. That pathway was foreclosed by the error in MFI 16, such that the Crown could only establish knowledge of absence of consent through knowledge, recklessness, or absence of honest belief.

  3. “The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges”: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13]. Applying that assumption, the direction contained an error, but it is an error which was to the applicant’s advantage. A misdirection which is wholly favourable to the accused does not give rise to any miscarriage: see for example Malicki v R; R v Malicki [2015] NSWCCA 162 at [36]-[44]. We are conscious that some care must be taken in addressing submissions that a direction is “favourable”. The point was captured by Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59 observing, “These ‘too favourable’ directions can only too often be veritable gifts from the Greeks”. But the issue in such cases (which are considered in Lane v R [2013] NSWCCA 317 at [32]-[35]) is that there may for practical purposes be an advantage to an accused not to have a middle course left open to the jury. That is nothing like the advantage enjoyed by the applicant following the misdirection in this case, which had no downside. All that occurred is that the jury had one fewer way of reaching a guilty verdict on counts 4 and 6 than should have been the case had the jury been correctly directed.

  4. During the hearing, Mr Wendler was asked how paragraph 3(e) might operate adversely to the accused. His answer was:

“because it’s expressed as a double negative in the way it’s expressed a juror may have thought, well I’m not convinced beyond reasonable doubt that he didn’t honestly believe that she was consenting and then, I’m not convinced beyond reasonable doubt that on top of that he had no reasonable grounds.”

  1. But if the juror were not persuaded to the criminal standard of either limb of paragraph 3(e), the applicant could not have been convicted on that basis. Counsel’s answer merely exposes what is implicit in this submission, which is that the jury did not follow the erroneous direction in paragraph 3(e), and that is contrary to the assumption stated in Gilbert.

  2. There is one further point which should be noted. The considerations mentioned above make it plain on the face that there is an inconsistency between paragraphs 3(d) and (e). The fact that this patent inconsistency was not detected either by counsel or by the judge serves to reinforce the proposition that these pathways were far removed from the issues raised at trial.

  3. Those considerations taken together compel the conclusion that there was no miscarriage by the error in the direction. It has not been shown that there is a significant possibility that the error affected the outcome of the trial. In the absence of there being any miscarriage of justice, leave should be refused pursuant to r 4.15: see Campbell v R [2014] NSWCCA 175; 312 ALR 129 at [258]-[259] and [334]; Malicki at [44].

  4. If we are wrong as to the absence of miscarriage, then, for the reasons which have been outlined above, we would conclude that there was no substantial miscarriage of justice such that the proviso should be applied.

Appeal against sentence

  1. The aggregate sentence was 13 years imprisonment with a non-parole period of 8 years and 8 months. The sentences indicated pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were as follows:

  1. Sexual touching (kissing)         3 y with NPP of 2 y;

  2. Sexual touching (hickey to neck)      3 y with NPP of 2 y;

  3. Sexual touching (hickey to chest)      3 y 9 m with NPP of 2 y 6 m;

  4. Agg sexual intercourse (cunnilingus)   6 y with NPP of 4 y;

  5. Sexual touching (tapping penis)      Not guilty;

  6. Agg sexual intercourse (pen/vag)      9 y with NPP of 6 y.

  1. The maximum penalty for counts 4 and 6 is 20 years imprisonment, and there is a standard non-parole period of 10 years imprisonment. The maximum penalty for counts 1, 2 and 3 is 10 years imprisonment, and there is no standard non-parole period.

  2. The applicant submitted that while an appeal lay only from the sentence imposed, “manifest excess in an indicative sentence may reveal why an aggregate sentence is manifestly excessive”. He relied upon this Court’s reasoning in Evans v R [2017] NSWCCA 281 at [51]:

“… [T]he sentence indicated for count 2 led to the aggregate sentence being manifestly excessive. Another factor which resulted in the aggregate sentence being manifestly excessive was the substantial effective accumulation having regard to the sentences indicated. Although the offending conduct covered by the two counts and the s 166 certificate covered events in 2012 and 2016, there was some communality in the conduct within these periods which required, in my view, a greater level of effective concurrence than was reflected in the aggregate sentence.”

  1. Likewise, he submitted that the indicative sentences imposed in relation to the sexual touching in counts 2 and 3 were manifestly excessive. He said that “in combination the indicative sentence in respect to counts 1-3 inclusive have had the legal effect of inflating the aggregate sentence thus making it manifestly excessive”.

  2. Part of these submissions challenged the assessment of objective seriousness, which was found to be between the low and mid range in the case of counts 1 and 2, and just below the mid range in the case of count 3. We do not accept this submission. The assessment of objective seriousness was well open to the sentencing judge, will not lightly be interfered with on appeal, and in any event, the challenge is inconsistent with the ground of appeal, which is that the indicative sentence does not disclose patent error but rather is manifestly excessive.

  3. On any view of the matter, a sentence of imprisonment for 3 years, with a non-parole period of 2 years, for a non-consensual mouth to mouth kiss involving the tongue, forcibly imposed by a 52 year old man upon a 13 year old girl, would be manifestly excessive. The subjective considerations that told in the applicant’s favour will be mentioned below, but even putting those features to one side, such a sentence would be manifestly excessive.

  4. So too would sentences of 3 years imprisonment, or 3 years and 9 months imprisonment, with non-parole periods of 2 years and 2½ years, for “sucking or love-biting” the complainant’s neck and chest. The conduct is worse, involving temporary bruising to the skin, and in the case of count 3, in an area just above her breast. However, repulsive as the conduct of a much older man was, invading the bodily space of a 13 year old vulnerable child, he should not be sentenced to 3, or 3½ years imprisonment for doing so.

  5. Another way of viewing the position is to hypothesise a different case, where the applicant only committed the acts of sexual touching (the tongue kiss and the hickeys), but neither of the acts of sexual intercourse. It is a serious criminal offence for a much older man to invite a vulnerable 13 year old girl to his home and kiss her on her lips and neck and chest, bruising her skin. But even so, any sentence involving years of imprisonment would be manifestly excessive. The much more serious offending, and much more substantial harm to the complainant, was occasioned by the acts of aggravated sexual intercourse. We did not understand the Crown to contend otherwise.

  6. The Crown insisted, correctly, that the appeal does not lie from the indicative sentences stated to contribute to an aggregate sentence, but only from the sentence actually imposed. That is so. And if the aggregate sentence was such that the excessive indicative sentences for counts 1, 2 and 3 were wholly concurrent, or almost wholly concurrent, with the sentences for counts 4 and 6, then the excessive sentences indicated for counts 1, 2 and 3 would be immaterial.

  7. The Crown acknowledged that the sentence was a “stern” one, but said it was warranted. While there was no violence, there was persistence, and while there was remorse, the sentencing judge expressed a guarded opinion. The Crown acknowledged the applicant’s subjective case but denied that it could fairly be characterised as “very strong”. We agree with the submissions in the preceding two sentences.

  8. However, the Crown sought to rely upon the indicative sentences in order to justify the aggregate sentence imposed by reference to the notional degree of concurrency:

“BONNOR: Yes, if the indicative sentences were substantive sentences that involved a large amount of overlap or concurrence. The total of the indicative sentences was 24 years, the aggregate was 13, and so in my submission it really is in this case the aggregate sentence that needs to be examined.”

  1. We do not accept the submission that any material assistance is obtained by observing that the indicative sentences for the five offences add to 24 years and 9 months, which is almost double the sentence of 13 years imprisonment imposed, so as to conclude that there was a large amount of concurrency.

  2. The kissing occurred before the applicant left the room to shower. All other offending conduct occurred in the same uninterrupted period of time in the early hours of the morning. The offending falls to be characterised as a single episode. There was required, in the circumstances of this case, to be an extremely high level of effective concurrency between all of the sexual touching, and the much more serious offending comprising the acts of aggravated sexual intercourse.

  3. Against this, the Crown submitted that “this Court has emphasised the need to maintain public confidence in the administration of justice when sentencing for multiple offences”. The Crown relied on what was said in R v Wheeler [2000] NSWCCA 34 at [37]:

“It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences – and the present applicant’s case, is a good example of the kind – he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.”

  1. Nothing in these reasons undercuts, or is intended to undercut, what was said in Wheeler. But that reasoning has no application to the sentencing of the applicant. The statement in Wheeler was directed to the imposition of sentence for seven convictions of robbery, attempted robbery or robbery in company, committed on 5 and 14 May, 5 June, 21 August and 18, 21 and 25 September 1998. As Sully J put it at [7], “In other words, the applicant stood for sentence in respect of seven discrete offences committed over a period of some five months”. There were different venues, different victims, and different persons involved over a five month period.

  2. The Crown also relied upon the same principles stated in R v Harris [2007] NSWCCA 130. Once again, those were discrete offences of break, enter and steal, occurring on two separate days weeks apart with three separate victims.

  3. The applicant was to be sentenced for five offences committed upon the same complainant in the same place in the same few hours of the morning of a single day. The Crown submitted that “Once the complainant was in the applicant’s home, he committed a deliberate series of discrete offences” (written submissions, para 87). That is true in only the most technical sense, in that the conduct comprising counts 2, 3, 4 and 6 occurred some seconds or minutes apart.

  4. It is, with respect, quite wrong to translate what was said in Wheeler about the operation of totality upon “offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour” in a context involving separate offending and separate victims over an extended period of time, to the single encounter between the applicant and the complainant in the early hours of 20 August 2019. Just because a passage in reasons for judgment seems apposite if read in isolation does not make it so: see Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [152]. What was said in Wheeler and Harris has no application to the present case.

  5. Another way of making the point is this. It may be accepted, in light of the subjective considerations mentioned below, that the indicative sentence for count 6 of 9 years with a non-parole period of 6 years was appropriate. An additional period of imprisonment was required by the separate albeit connected offending comprising counts 1, 2, 3 and 4. But even acknowledging that count 4 was a substantially more serious offence than counts 1-3, an additional 4 years imprisonment cannot be justified.

  6. Accordingly, the offending all of which occurred in the early hours of 20 August 2019 demanded a very high degree of notional concurrency. That was not achieved by the sentence imposed. Viewed that way, this is not so much a ground of manifest excess, but an impermissible exercise of the discretion to accumulate notional sentences when imposing an aggregate sentence. However the error be characterised, it warrants allowing the appeal against sentence, quashing the sentence imposed by the District Court, and resentencing.

Resentencing

  1. Except in relation to the applicant’s challenge to the findings of objective seriousness, which we have rejected, no issue was taken with the findings made by the primary judge when imposing sentence. Nor was any evidence read on the usual basis in the event that this Court resentenced.

  2. We have read the entirety of the material tendered on sentence, and see no reason to depart from her Honour’s findings, which may be summarised as follows.

  1. The applicant’s behaviour was opportunistic, and involved exploitation of the circumstances he encountered, namely, a 13 year old girl by herself at night on Manly Wharf;

  2. There was no predatory behaviour, or planning that amounted to aggravation. Conversely, the applicant’s sexual interest in the complainant was not spontaneous, but developed as the pair travelled to his home.

  3. There was no detention or physical forcing of the complainant to accompany the applicant. She was free to leave him at the hotel at Circular Quay, or when he left his room to shower after kissing her. Of course, she was vulnerable, not merely because of her age (which is an element of the offence) but also because she was alone at a ferry terminal and it was after midnight by the time she was left alone in his accommodation in Mascot

  4. The Crown did not contend that the complainant was intoxicated.

  5. It was agreed that sentence should be imposed on the basis that the applicant was reckless as to whether the complainant had consented. (This favourable finding reflected the Crown’s insistence on recklessness being left to the jury, contrary to the applicant’s submission.)

  6. The harm suffered by the complainant, although profound and continuing, fell short of amounting to aggravating circumstances, given the nature of the offending.

  1. In assessing the objective gravity of the offending, the primary judge had regard to the age disparity, the absence of any detention, the fact that the offences were part of a course of conduct over an evening and morning, the absence of planning but likewise an absence of spontaneity, the vulnerability of the complainant, the absence of force, coercion or threats, and the unsophisticated nature of the offending, involving no concealing of the applicant’s identity or address. Her Honour concluded that the objective gravity of counts 1 and 2 was between the low and mid ranges, for count 3 just under mid range, for count 4 at the mid range and for count 6 at the upper end of mid-range.

  2. The subjective circumstances may be summarised thus:

  1. The applicant identified as Aboriginal, and had a deprived and disadvantaged upbringing sufficient to engage Bugmy considerations. His affidavit was admitted without objection and described alcohol abuse from the age of 12 to the extent of drinking two casks of wine a day when not in prison, and regular consumption of cannabis from 15. The affidavit sought to draw a connection between the substance abuse and physical and sexual abuse he sustained within his family from a young age. However, in light of the applicant not submitting himself to cross-examination, her Honour (after indicating as much during the hearing) was not prepared to make such findings. Nonetheless, her Honour found that the applicant’s “experience of and exposure to violence, sexual abuse and loss during childhood is established”, leading to some mitigation of moral culpability and a reduced emphasis on general deterrence.

  2. The applicant is separated from his former long term partner. There are two surviving children, now in their 20s. A third child died at 4 days old.

  3. The applicant suspects he suffers from diabetes. He has fibrosis III which is associated with cirrhosis, high blood pressure, high cholesterol and gout.

  4. The applicant has an extensive criminal history, consistent with an extremely deprived background. He has been convicted of many offences of personal violence, but none of sexual assault. He served a series of short terms of imprisonment between 1996 and 2001, he then avoided full-time imprisonment until 2007, and he received sentences of imprisonment in 2007 and 2009 for contravening an apprehended domestic violence order, in 2010 for the same offence and also for common assault in a domestic violence context. He was fined in 2012 for custody of a knife in a public place. In 2013 he was imprisoned for stalking or intimidation and assault occasioning actual bodily harm and assault. In 2014 he was imprisoned for resisting an officer in execution of duty. In 2017 he was fined for stalking or intimidation. In 2017 he was imprisoned for common assault and destroy or damage property. In 2018 he was imprisoned for contravening an apprehended domestic violence order, stalking or intimidation, and being armed with intent to commit an indictable offence. In addition, there are some relatively minor drug offences.

  5. In relation to count 4, the police would never have known of the crime but for the applicant’s admission, and her Honour found a 25% discount was appropriate.

  6. Section 22A of the Crimes (Sentencing Procedure) Act was engaged because the applicant assisted the process by confining the issues to consent, knowledge of lack of consent, and knowledge of the complainant’s age through his participation in the electronically recorded interview, and in agreeing to certain other facts.

  7. Her Honour found an expression of remorse in a letter read to the Court on the day he was sentenced. Conscious of his not guilty plea and the evidence which the jury must have rejected, her Honour said “I am prepared to find that there are glimmers of hope towards understanding and remorse, and in the circumstances, that affords some mitigation”.

  8. Her Honour gave a guarded assessment of the prospects of rehabilitation and the risk of recidivism.

  9. The applicant’s experience of protective custody, coupled with media exposure of the offending has added to his sense of isolation, as did arrangements concerning COVID-19.

  1. There is no reason to depart from the finding of special circumstances, or the alteration of the statutory ratio of two thirds.

  2. We would propose the following indicative sentences:

Count 1   Sexual touching (kissing)         18 months

Count 2   Sexual touching (hickey to neck)      18 months

Count 3   Sexual touching (hickey to chest)      2 y

Count 4   Agg sexual intercourse (cunnilingus)   6 y with NPP of 4 y

Count 6   Agg sexual intercourse (pen/vag)      9 y with NPP of 6 y

It is unnecessary to state non-parole periods for the indicative sentences for counts 1-3, where there is no standard non-parole period: see s 44(2C) of the Crimes (Sentencing Procedure) Act and JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39(7)].

  1. We would impose an aggregate sentence of 10½ years imprisonment, with a non-parole period of 7 years.

  2. We make the following orders:

1. Refuse leave to appeal against conviction.

2. Grant leave to appeal against sentence.

3. Allow the appeal against sentence.

4. Quash the sentence imposed by the District Court on 16 April 2021, and in lieu thereof, sentence the applicant to an aggregate sentence of 10½ years imprisonment commencing on 22 August 2019 and expiring on 21 February 2030, with a non-parole period of 7 years expiring on 21 August 2026.

Decision last updated: 20 July 2022

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Evans v R [2017] NSWCCA 281
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