Morton (a pseudonym) v The King

Case [2025] SASCA 29

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MORTON (A PSEUDONYM) v THE KING

[2025] SASCA 29

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David)

20 March 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

STATUTES - ACTS OF PARLIAMENT - VALIDITY OF LEGISLATION GENERALLY

CRIMINAL LAW - GENERAL MATTERS - OTHER GENERAL MATTERS - CONSTRUCTION OF CRIMINAL CODES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE

CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - EVIDENCE OF GOOD CHARACTER

This is an appeal against conviction and sentence.

The appellant was convicted of one count of sexual abuse of a child, C, by a trial by jury on 3 February 2022. The presiding Judge sentenced the applicant to 10 years imprisonment with a non-parole period of five years. This conviction was set aside on appeal and a new trial ordered. The applicant was again convicted in the second trial. The Judge presiding over the second trial sentenced the applicant to 12 years imprisonment with a non-parole period of six years, eight months, and one day.

The appellant was the stepfather of C. C was seven years and four months at the commencement of the period of the alleged sexual abuse, and nine years and two months when that period came to an end.

The particulars of the charge alleged that the appellant incited C to touch his penis on more than one occasion, engaged in unlawful sexual acts in the nature of penetration on more than one occasion; touched C’s genitalia on more than one occasion; caused C to perform an act of fellatio on more than one occasion; and attempted to kiss C on more than one occasion.

The appellant appeals against conviction on the appeal relied on the following grounds:

1.  The Judge erred in ruling that he would give permission to the prosecution to adduce evidence of his bad character if he were to lead evidence of his good character;

2.  A miscarriage of justice arose from the prosecutor inviting the jury to speculate that the victim had no reason to make up the allegations;

3.  The verdict was unreasonable, having regard to inconsistencies in the evidence;

4. Section 50(4)(c) of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’) is unconstitutional on the ground that, by allowing for minority verdicts, it impermissibly interferes with the institutional…

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Morton (a pseudonym) v The King [2025] SASCA 29
Case
[2025] SASCA 29
Decision Date

CaseChat Overview and Summary

The South Australian Court of Appeal, constituted by Kourakis CJ, S Doyle and David JJ, considered an appeal by the appellant against his conviction and sentence for offences including maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appeal concerned the proper application of the "ceiling principle" in sentencing following a retrial.

The primary legal issue before the Court was whether a sentencing judge, on a retrial after a successful appeal against a previous conviction, must be satisfied that the original sentence was manifestly inadequate before imposing a longer term of imprisonment. The Court also considered the nature and status of the "ceiling principle" in the context of a fresh sentencing discretion.

The Court reasoned that a sentence formerly imposed but subsequently quashed is a relevant consideration in the fresh exercise of sentencing discretion but does not constrain it. Conditioning the proper exercise of discretion on a threshold of manifest inadequacy for appellate review is inconsistent with the statutory conferral of sentencing power. The Court affirmed that while the "ceiling principle" dictates that an offender should not be worse off as a result of a successful appeal, it does not prevent a higher sentence on retrial if there are good reasons, such as the original sentence being manifestly inadequate or materially different facts emerging. The Court concluded that the sentencing judge had not erred in principle by imposing a longer term of imprisonment than that previously imposed.

Permission to appeal against sentence was granted, but the appeal itself was dismissed. The appeal against conviction was also dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow, we are satisfied that the appellant ought to be granted permission to appeal against sentence, in light of the issue of principle and question of general importance regarding the nature and status of the ‘ceiling principle’.[23] We would, however, dismiss the appeal against sentence. In our view, the Judge’s imposition of a longer term of imprisonment than that formerly imposed by the first Judge evinces no error of principle. We would reject the appellant’s contention that, before the Judge could pass such a sentence, his Honour had to be satisfied that the sentence passed by the first Judge was manifestly inadequate. A sentence formerly imposed, but since quashed, is a relevant consideration in the fresh exercise of the sentencing discretion but cannot constrain it. Conditioning a proper exercise of the sentencing discretion, in cases of this kind, on satisfaction of the threshold for appellate review of a sentence is inconsistent with the statutory conferral of the sentencing power.[23] See, Wilczynski v District Court of South Australia [2023] SASCA 82, [17] (Bleby and David JJA); Collins v Djunaedi [2023] SASCA 97 [32] (Doyle and Bleby JJA); Hanna v Flinders University [2024] SASCA 127, [13] (Livesey P and Bleby JA). Factual and procedural background to the sentence appeal The conduct the subject of the charge has been outlined above at [16]-[21]. The appellant was first tried by a jury before Auxiliary Judge Barrett in October 2021. That jury was unable to return a majority verdict and was discharged. A second trial by jury was held before the first Judge in February 2022. The jury in that trial returned a verdict of guilty on 3 February 2022. Sentencing submissions took place before the first Judge over 10 and 11 March 2022. The first Judge imposed a sentence of 10 years with a non-parole period of five years on 7 April 2022. As at that date, the appellant was 28 years old. Her Honour’s remarks on sentencing referred to the seriousness and duration of the appellant’s offending, its deleterious effects on the complainant, and the support that the appellant still enjoyed from members of his family. On the question of the proper sentence to be imposed, her Honour remarked that:[24]I am guided … by the sentencing standards in the decision of R v D [(1997) 69 SASR 413] and s 68 of the Sentencing Act 2017 … Offences such as this involving sexual conduct with young children where there are multiple offences committed over a period of time by a person in a position of trust and authority, attract a lengthy term of imprisonment. This term of imprisonment is subject to many considerations and the facts of each case must be assessed on their own merits.In this case the complainant was aged between seven and nine, there were multiple sexual acts over a lengthy period. This offending involved a serious breach of trust in the relationship between you and the complainant, as well as your relationship with the complainant’s mother. You took advantage of the opportunity to offend against the complainant in circumstances where her mother trusted and relied upon you to assist in caring for the child whilst she was out working to support the family or working with a not for profit organisation.Protection of the community is a paramount consideration in relation to sentences of this type. Both general and personal deterrence are also very important. …I take into account your previous good character, although this does not reduce the seriousness of your offending. I consider that a term of imprisonment of 10 years is the appropriate penalty. In setting your non-parole period I take into account your limited prior history, that this is the first sentence you have served in custody and your strong family support. I set a non-parole period of five years.[24] Sentencing Remarks, R v [Morton (A Pseudonym)] (District Court of South Australia, DCCRM-21-257, Judge Davison), 8.

Evidence

Evidence Before The Court

We explicate our reasons for so holding below.The evidence The appellant and C’s mother, KL, met in 2014 in a South Australian regional centre. KL testified that she saw herself, C, and the appellant as a ‘family unit’ after about six months. However, her relationship with the appellant was unstable and eventually came to an end in November 2019. C was seven years and four months at the commencement of the period of alleged sexual abuse, and nine years and two months when that period came to an end. She was interviewed by the police soon thereafter. Relevantly to the detail of the account of sexual conduct given to police, KL testified that her discussions with C about sexual matters was very limited and was largely in the context of breeding animals. During his relationship with KL, the appellant primarily worked evening shifts in a pork processing plant. Over time, the appellant gradually spent more time at KL’s home in the regional centre, A, in which they had met. The family moved between A and several other regional centres during the course of the relationship. The first child of their relationship, KR, was born on 8 June 2017 in a township in the Adelaide Hills. Their second child, TR, was born in another regional town on 10 October 2018. The appellant stopped residing with the family from late 2019. On Mother’s Day weekend in 2020, the appellant took all three children to stay with him for a short time. C’s evidence was received by way of prerecorded interviews conducted by the police on 9 June 2020 (‘two interviews’) and 15 June 2021. In the first interview, C denied any offending by the appellant. C was asked, ‘Has anyone ever touched you in those parts’ and she responded, ‘No’. In the second interview, C told the police that she had not told the truth in the first interview because she ‘hadn’t told [her] mum yet’. She explained that she had come back to say that her stepdad touched her. C gave an account of touching the appellant’s genitals and an account, in the simplistic terms one would expect from a child of her age, of penetrative sexual activity. C spoke of the appellant’s attempts to have her kiss him. C explained that the first occasion of any sexual conduct was in their home when KL was not there. She gave some detail about the way in which the appellant engaged in the sexual activity, which a child of her age would not be expected to relate unless she had seen conduct of that kind. C related that the offending first occurred when she resided in the township of A. The last occasion occurred in the residence into which the appellant had moved after the relationship with KL came to an end. C said that the offending occurred ‘almost every day last year and last time I went down’. C told the police that she reported the behaviour to her mother, who had explained to her that the appellant ‘was actually raping’ her. C informed the police that the appellant had urged her not to tell her mother of his conduct but that she had also disclosed the offending to her cousin.

Decision

Reasons for decision

It follows that, while permission to appeal is granted with respect to sentence, the appeal against sentence must be dismissed.Conclusion The appeals against conviction and sentence are dismissed.

Ratio Decidendi

Legal Principle Established

In McL v The Queen, Gleeson CJ, Gaudron and Callinan JJ observed:[54]… in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction. The weight to be given to that consideration depends, of course, upon the circumstances of the individual case.(Emphasis added)[54] (2000) 203 CLR 452, 459 [23]. Justices McHugh, Gummow and Hayne took the matter somewhat further, observing that:[55]… Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare.[55] Ibid 475-6 [72]. That case concerned the substitution of sentence, formerly imposed by the County Court of Victoria, by the Court of Appeal of Victoria, pursuant to s 569(1) of the Crimes Act 1958 (Vic). Respectfully, the assimilation of the ‘ceiling principle’ by Gleeson CJ, Gaudron and Callinan JJ as one of the relevant sentencing considerations on a resentencing, and not as a superimposed threshold before the discretion can be exercised differently, is more consistent with the nature of the statutory sentencing power. Such difference as there may be in practice between the two approaches can be seen as a matter of the weight which is attached to the ‘ceiling’ consideration. In DWG v State of Western Australia,[56] after an extensive survey of the case law on the ‘ceiling principle’, Buss P distilled a number of propositions regarding the interaction of that principle with the fresh exercise of the sentencing discretion on a retrial:[57][56] [2023] WASCA 133 (‘DWG v State of Western Australia’).[57] Ibid [60]. In my opinion, a number of propositions, including the following, may be distilled from the case law:(a)A judge, who is sentencing an offender after a retrial following the offender’s successful appeal against conviction at the original trial, is not ‘resentencing’ the offender, but exercising an independent sentencing discretion in relation to the offences of which the offender has been convicted at the retrial.(b)The so-called principle of restraint or ceiling principle describes a consideration which a judge, who is sentencing an offender after a retrial following the offender’s successful appeal against conviction at the original trial, should take into account.(c)The proper application of the so-called principle of restraint or ceiling principle requires a consideration by the judge at the retrial of all the components of the original sentence including (in the case of multiple offences) the total effective sentence, the individual sentences, the orders for cumulacy or concurrency, any backdating of the total effective sentence and any parole eligibility order.(d)Ordinarily, absent countervailing considerations, the sentences imposed by the judge at the original trial should be regarded as the upper limit of the sentences to be imposed following the retrial, so that the offender will not be seen to have been in a worse position as a consequence of the offender’s successful appeal against conviction at the original trial.(e)However, the judge at the retrial may impose sentences that are higher than those imposed by the judge at the original trial for good reason; for example, if the sentences imposed by the judge following the original trial were manifestly inadequate or if the facts established at the time of sentencing following the retrial are materially different from those that were established at the time of sentencing following the original trial.(f)An exercise of discretion by the judge at the retrial that increases the original sentence given to the offender should be rare … Where an exercise of discretion by the judge at the retrial increases the original sentence, good reason for the increase should be identified by the judge.(g)Where an offender is convicted at the retrial of fewer offences or less serious offences than at the original trial, the so-called principle of restraint or ceiling principle applies … The manner in which the totality principle was applied at the original sentencing may be significant in the determination of the sentencing outcome following the retrial … The sentencing outcome following the retrial must be an appropriate reflection of the objective gravity of the overall offences, having regard to all relevant facts and circumstances and all relevant sentencing factors. The so-called principle of restraint or ceiling principle, as modified in the manner and to the extent explained and illustrated in those cases, does not mandate that the judge at the retrial make a proportionate reduction in the total effective sentence imposed by the judge at the original trial.(Citations omitted)