R v Morgan
[2003] NSWCCA 284
•3 October 2003
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Morgan [2003] NSWCCA 284
FILE NUMBER(S):
60285/03
HEARING DATE(S): 3 September 2003
JUDGMENT DATE: 03/10/2003
PARTIES:
Regina v Leonard James Morgan
JUDGMENT OF: Greg James J Howie J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 02/31/0116
LOWER COURT JUDICIAL OFFICER: Finnane DCJ
COUNSEL:
(A) Mr Craigie SC
(C) Mr M Grogan
SOLICITORS:
(A) B Sandlands
(C) C K Smith
CATCHWORDS:
Sentence - judge not taking into account in fixing the overall sentence harsher custodial conditions - correct application of principle of totality.
LEGISLATION CITED:
DECISION:
See para 32
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60285/03
GREG JAMES J
HOWIE J
SMART AJ
Friday, 3 October 2003
Regina v Leonard James MORGAN
JUDGMENT
GREG JAMES J: I agree with Smart AJ.
HOWIE J: I agree with Smart AJ.
SMART AJ: Leonard James Morgan seeks leave to appeal against the severity of the following sentences imposed in the District Court (Finnane DCJ) consequent upon the offender's plea of guilty:
CountOffence Sentence of
Imprisonment
Count 1Sexual intercourse with a person Fixed term of 3 years,
between the ages of 10 years and 9 months starting on 15
16 years, namely 12 years, between December 2001
31 August 1998 and 15 October 1998
Two offences on a Form 1 were taken
into account.
Counts2-6Sexual intercourse with a person On each count 3 years
between the ages of 10 years and starting on 15 September
16 years, namely 12 years, between 2005 with a non-parole
31 August 1998 and 15 October 1998 period of 3 months
(Crimes Act 1900, s.66(1) – maximum
penalty 8 years)
Thus the effective total sentence was 6 years 9 months and the effective non-parole period was 4 years.
The District Court proceeded upon the basis of an agreed statement of facts. The complainant, a girl born on 7 December 1985, arrived in Moree in August 1998 to attend a relative's funeral and stayed there after the funeral. Some weeks later she visited the offender at his residence. They went to the nearby residence of the offender's sister. At that residence the offender had penile vaginal intercourse with her. She remained there for up to eleven days and during that period the offender had intercourse with her on five other occasions. On one evening another one of the offender's sisters told him "… she's too young for you, she's only about 14 …" to which the offender replied "… she told me that she is 17 going on 18 …".
After this, the offender said that he ceased having intercourse with the complainant. He walked her back to her uncle's home and allegedly told her not to tell anybody what had happened.
Some time later the offender told the complainant's 16 year old cousin that he had "had" the complainant. The cousin relayed this information to a number of people. On 20 October 1998 formal notification was given to the police and on 23 October 1998 the complainant made a statement to the police. The offender underwent a police ERISP on 5 February 1999. He freely admitted having had sexual intercourse with the complainant during the period she was at his sister's house. He insisted that it was consensual and that she had told him that she was 16 going on 17 years of age.
The first offence taken into account was one of indecent assault, the offender having between 14 and 17 October 1998 put his arms around the waist of a 16 year old girl from behind and touched her on the breasts over her clothing. The second offence was one of assault occasioning actual bodily harm, the offender on 31 May 2001 whilst driving a motor vehicle having assaulted another girl with a screwdriver causing the wound to bleed.
The judge accepted that the intercourse was consensual and that there was no suggestion of any force or violence. The judge did not specifically find whether he accepted that the complainant had told the offender that she was 16 going on 17. However, the judge remarked, "His [the offender's] belief that she was over the age of sixteen is of course not a defence because she was at the time only twelve". This points to the judge probably accepting that the offender had the belief that the complainant was over the age of 16. The judge remarked that the offender told Dr O Neilssen, Forensic Psychiatrist, that he, the offender, was misled by the complainant who said she was older, and that she was well developed and not childlike in her appearance. The offender was not cross-examined on his stated belief nor on whether he had intercourse after his sister stated that "she's only about 14". The truth of the offender's version of events was not challenged.
The offender was born on 7 August 1971 and was thus aged 27 at the time of the offences. He has had a long history of offences. They commenced in 1982 when he was but 10 years old. Many of them involved dishonesty, but there were also some assaults and other matters. His offences as an adult began in March 1991. Over the ensuing years he was sent to gaol from time to time. In February 1994 he was sentenced to a minimum term of 9 months and an additional term of 3 months. In March 1998 he received sentences by way of fixed and minimum terms totalling 12 months commencing 5 July 1997 and an additional term of 3 months. The offender said that each of his assaults involved domestic violence. His criminal history contains an entry of assaulting a police officer. While some of the offences were serious, there was nothing as an adult which could be classed as a major crime. The offender's record as an adult does not contain instances of having sexual intercourse with a person under the age of 16 years.
The offender gave evidence of an upbringing of considerable disadvantage. He did not enjoy a normal family life. The welfare authorities removed him from the care of his mother when he was aged 10. He went into custody a number of times. When not in custody or in a home he was moved between the homes of different relatives. There was a lot of violence in the homes, a lot of alcohol and not much food. He was out of control.
The offender gave evidence of a number of relationships with women, but they did not last.
The offender has spent most of his time in prison over the years and prior to sentencing in segregation. He has proved troublesome and difficult and seems to have become involved in a number of fights. He claimed that he had been called a "rock spider" and victimised in the months prior to sentencing.
The offender recounted his psychiatric history to Dr O Neilssen and a range of symptoms. He had attempted suicide in the past and while in gaol had been kept under close observation at times for fear of self-harm. There were scars on his left forearm indicating earlier deliberate self-harm.
In his report of 11 November 2002 Dr Neilssen wrote of the offender:
"He appeared quite despondent for most of the interview, especially when discussing his upbringing and his situation. However, he also cheered up when thinking of pleasant events and did not appear to be pervasively depressed."
And
"Mr Morgan is a thirty one year old Aboriginal man who was subjected to physical abuse and material neglect during his upbringing. He may have a family history of mental illness, as he believes he is related to a family with a strong history of schizophrenia. He reported a pattern of heavy alcohol abuse and also recent amphetamine abuse.
Mr Morgan's upbringing contributed to the development of a personality disorder which has left him with an impaired capacity to form trusting relationships, regulate his own moods, to consider the long term consequences of his actions and to deal with stress in an adaptive way.
There is also the possibility that Mr Morgan has some form of psychotic illness because of his reported pattern of abnormal jealousy and also the account he gave of experiences that may be symptoms of psychotic illness.
The offence before the court appears to have arisen in the context of a gathering associated with a high level of alcohol abuse and Mr Morgan's impulsivity and impaired ability to form appropriate relationships. He described the relationship as a mistake and said that he ended the relationship as soon as he became aware of the girl's association with his family and her age.
…
Mr Morgan's treatment needs include further psychiatric assessment and possibly treatment with antipsychotic medication if it emerges that he does have a delusional jealousy, a further attempt at drug and alcohol rehabilitation, and counselling to address his longstanding difficulty with relationships. I would recommend an application to enter the William Booth Institute program run by the Salvation Army, in which he may also be able to participate in Mancare program for men with problems in relationships, including domestic violence.
If further psychiatric assessment confirmed the presence of a psychotic disorder for which he requires treatment, he would also be eligible for the longer term Endeavour Farm program for men with both mental health and drug and alcohol problems."
Dr J Daniels, Director of Medical Services with the Aboriginal Medical Service examined the offender on two occasions at the MRRC (Metropolitan Remand and Reception Centre) in his capacity as the Visiting Aboriginal Medical Service Medical Officer. The offender spoke of being physically abused by his father and of the considerable domestic discord and his failed relationships with his de facto spouses because of his irrational suspicions of infidelity on the part of several of them, which led him to be violent to them. He had been gaoled for his behaviour. The offender told Dr Daniels that he believed that the instant complainant was 17 and that when he discovered her true age after eleven days he immediately terminated the relationship.
Dr Daniels wrote:
"Mr Morgan identifies very strongly with his culture. He has been charged with offences that constitute a gross violation of Aboriginal traditions and the very fabric of Aboriginal social structures. He acutely perceives the dimensions of actions within his Aboriginal frame of reference. Although he is genuinely satisfied in his own mind that he believed that he entered into a sexual relationship with a female who was aged above the age of consent, nevertheless, his sense of revulsion for his behaviour remains undiminished.
While he apparently had the support of his family and this is a positive prognostic feature, I was concerned that his emotional resources were not very well developed. In consequence, he might be vulnerable to any adverse changes in his circumstances. His history of paranoia is likely to amplify his tendency towards decompensation. Whereas he is very attached to his children and that might be seen as a potent stimulus against self harm, it is perhaps almost as likely that he could suicide to prevent them from experiencing any feelings of disgrace within their community.
That is, Mr Morgan is not currently suicidal. However, his psychological homeostasis is fragile and he could quickly become a significant suicide risk. The overt changes in his condition might be subtle and difficult to detect. Indeed, he may possibly only reveal his intentions to practitioners whom he perceives to have an understanding of Aboriginal culture and society."
The judge stated that from his observations of the offender when he gave evidence, the offender had an unusual personality. The judge thought that what he observed accorded with the view of the doctor that the offender had some form of personality disorder and may well have some psychotic background. The judge found that at the time both of the offences and the sentencing the offender was not suffering from any mental illness. The judge thought that the offender's evidence that he was under the influence of drugs and alcohol during the period of the offence was probably correct.
The judge after observing that the six offences were committed over eleven days, stated:
"… it would be wrong to regard them as just one big transaction and to impose what would amount to be a series of concurrent sentences …"
The judge held that because the offender had pleaded guilty at an early stage he was entitled to a discount of twenty-five per cent. The child had been saved the trauma of coming to court. Further, the plea showed contrition on the part of the offender. The judge seemed to accept that the various statements of contrition of the offender were genuine. The judge noted that he would probably not be able to return to Moree where all his family members live because he had been attacked by members of the girl's family in Moree.
The judge said (pp15-16 of his remarks):
"The fact of his imprisonment in harsh conditions is something which is recognised as a factor to be taken into account. The Court of Criminal Appeal as long ago as 1981 in the case of Regina v Vachalac which is reported in 1981, 1 NSWLR 351 at page 353, made it plain that a court can take into account on sentence, questions of physical and emotional hardship and deprivation imposed upon a person which mark him out in a different way to those in which others are marked out. That should normally be taken into account, however, in fixing a longer than usual non parole period by allowing him to get away from the prison system somewhat earlier, rather than, for example, giving him a reduced head sentence."
The last sentence contains an error either in expression or transcription. Two suggestions were made. Either the word "longer" should read "shorter" or the word "non" should be deleted. There is no point in speculating which mode of expression was intended or how the slip occurred. On any view the judge has made an error of principle. When an allowance is made for the harsher than usual custodial conditions such allowance should primarily be reflected in a shorter or reduced head sentence.
The judge correctly found special circumstances for the reasons which he gave, namely, the offender had not committed offences of this type previously, he needed extensive supervision and assistance with drug counselling, anger management and relationship counselling. His treatment was likely to take some considerable time.
After referring to Pearce (1998) 194 CLR 610 and Bavadra 115 A Crim R 152, the judge stated that he was required to consider the appropriate sentence for each offence and then to consider questions of cumulating the sentences partly or wholly, or making some or all of them, concurrent. He added: "In that regard I have to look at the principle of totality. I have to consider what is an appropriate sentence in an overall sense for the total criminality involved."
A little later the judge said:
"Looking at the overall criminality and having regard to the fact of the sentences which I consider should be imposed, I can say this that but for his pleas of guilty I would have considered a head sentence of nine years as an appropriate total sentence to reflect the overall criminality. Because of the discounts which I have mentioned I would think an overall total sentence of six years and nine months is an appropriate head sentence."
And
"… because of special circumstances … he should be released to parole four years from the date of sentence."
The judge continued:
"To give effect to the principle of totality I propose to impose a sentence of three years and nine months as a fixed term for the first count, and to make each other count a sentence of three years. Each such count from 2 to 6 would be concurrent with one another but cumulative on count 1. To give effect to my intention that he should be released four years after 15 December 2001 he will be given a very shortened non parole period in relation to the sentences of three years, that non parole period will in fact be three months and that will be so that he will (be) released on 14 December 2005. I am able to do that because it is the only way in which I can give effect properly to my intention that he serve only four years."
The applicant contended that the judge erred in wholly accumulating the sentences on counts 2-6 upon the sentence for the offence the subject of count 1 and that wholly concurrent sentences on all counts would have better reflected the total criminality. It was contended that there had been no deliberate exploitation of a child.
The applicant contended that because of the lack of knowledge of the girl's age this was not an instance of an escalating order of moral culpability as the offences were committed.
In support of his contention that the sentences were manifestly excessive the applicant submitted that this was a rare instance where all the offences could have been treated effectively as one continuing offence, to be met by wholly concurrent sentences, reflecting the reality of the total criminality. It was further submitted that in failing to so assess the situation the judge arrived at sentences which were disproportionate to the criminality manifest in the offences.
The applicant submitted that there was a patent error in the judge's approach to the issue of totality and a resultant latent error in the aggregate sentences.
Decision
As has been earlier pointed out the judge erred in failing to take into account when determining the length of the head sentences the matters of harsher prison conditions and questions of particular physical and emotional hardship and deprivation.
Although the judge referred to Pearce and Bavadra and the procedures he was required to follow, he subsequently appears to adopt a global approach to sentencing and then to split up what he regarded as the total period the applicant should spend in gaol between the sentences for the various offences. In other instances the judge appears to proceed correctly. The difficulty may be one of expression.
I do not agree that the sentences on counts 2-6 should be wholly concurrent with that on count 1 as six offences took place over a period of about 11 days in respect of a girl aged 12 years. That result would not adequately reflect the applicant's criminality.
A sentence of 3 years 9 months on count 1, taking into account the offences on Form 1, is within the permissible range but a non-parole period of 2 years 9 months should be fixed. As to counts 2-6 sentences of 3 years should be imposed with a non-parole period of 9 months. The sentences should be partly concurrent to reflect the principle of totality. It is the accumulation which leads to the reduced non-parole period. There is thus an effective head sentence of 5 years 6 months and an effective non-parole period of 3 years 3 months. As earlier mentioned there were the special circumstances as found by the judge to which I would add the further special circumstance of the accumulation of the sentences.
I propose the following orders:
1.Leave to appeal granted. Appeal allowed. Sentence quashed.
2.In lieu of the sentences imposed the applicant is sentenced to the following terms of imprisonment:
(a)On count 1, taking into account the offences on Form 1, a sentence of 3 years 9 months starting on 15 December 2001 and ending on 14 September 2005 with a non-parole period of 2 years 9 months starting on 15 December 2001 and ending on 14 September 2004.
(b)On each of counts 2 to 6 (both inclusive) a concurrent sentence of 3 years starting on 15 June 2004 and ending on 14 June 2007 with a non-parole period of 9 months starting on 15 June 2004 and ending on 14 March 2005.
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LAST UPDATED: 03/10/2003
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