R v Morgan
[2018] ACTSC 113
•12 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Morgan |
Citation: | [2018] ACTSC 113 |
Hearing Date: | 12 February 2018 |
DecisionDate: | 12 February 2018 |
Before: | Burns J |
Decision: | See [18]-[23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person without consent and being reckless as to whether she was consenting – act of indecency in the presence of a person – assault with intent to commit an offence of committing an act of indecency – objective seriousness – juvenile victims – public place – significant criminal history – significant delay – guarded prospects for rehabilitation – pleas of guilty – period of full-time imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT) ss 22, 92K(2), 92J(1) |
Cases Cited: | Blanco v R [1999] NSWCCA 121; 106 A Crim R 303 |
Parties: | The Queen (Crown) Benjamin Morgan (Offender) |
Representation: | Counsel Mr D Swan (Crown) Ms B Dunne (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 298 of 2017 |
BURNS J:
Benjamin James Morgan, you have pleaded guilty to three offences before the Court. The first offence is an offence contrary to s 92J(1) of the Crimes Act 1900 (ACT), alleging that on 25 February 2001 you committed an act of indecency upon MC without the consent of that person and being reckless as to whether she had consented thereto.
The second offence is an offence contrary to s 92K(2) of the Crimes Act 1900 (ACT), alleging that on the same date you did commit an act of indecency in the presence of a person, namely EI, that person then being a person aged 10 years, but under the age of 16 years, to wit, 15 years of age.
Finally, there is an offence contrary to s 22 of the Crimes Act 1900 (ACT) that on the same date you did assault another person, namely MC, with intent to commit an offence of committing an act of indecency.
A full Statement of Facts has been tendered and I have been told that the facts are agreed. I will not read out the Statement of Facts in full. It is sufficient to summarise them as one finds them on the first page of the Statement of Facts. On Sunday 25 February 2011, MC, then aged 16 years of age, and EI, then aged 15 years of age, were walking along Covington Crescent in Charnwood when they were approached by you. You grabbed MC and pulled her towards you, with your arm pressed against her upper torso. As she struggled against your grasp you masturbated before ejaculating onto the back of her pants. Following that, you released your grasp and MC and EI ran from the scene.
The maximum penalty for the offence of assault with intent to commit an act of indecency, contrary to s 22 of the Crimes Act 1900, is five years imprisonment. The maximum penalty for the offence of committing an act of indecency without consent, contrary to s 92J of the Crimes Act 1900, is seven years imprisonment. The maximum penalty for the offence of committing an act of indecency with a young person, contrary to s 92K of the Crimes Act 1900, is 10 years imprisonment.
With respect to the objective seriousness of these offences I note that both of the victims were juveniles at the time. MC was 16 and EI was 15. Both were vulnerable because of their age. The offences occurred in a public place. The victims were unknown to you. Your counsel submitted that this was the absence of an aggravating feature, in that there was no breach of trust or anything of that nature. That is true. However, the fact that your victims were unknown to you, or that you were unknown to them, is likely to make the offending more frightening as the victims do not know what you might be capable of.
The offence of committing an act of indecency on MC involved you ejaculating onto her clothing while you held her. This, in my opinion, is a serious example of this type of offending. I am further satisfied that these offences were not entirely spontaneous, but I do accept that there is no evidence of great planning or premeditation. With respect to the charge of committing an act of indecency on MC, in my opinion this offence falls within the mid‑range of such offences; with respect to the offence of committing an act of indecency in the presence of EI, this offence falls within the lower end of the mid‑range of such offences; and finally, with regard to the offence of assault with intent to commit an offence of indecency, this offence falls within the lower end of the range of such offences.
I note that you have a significant criminal history which commences in 2003 and includes multiple sexual offences. Chronologically, the present offences predate all of the matters on your criminal history and you are to be sentenced on that basis. That is, that these are the first offences that you committed. That is not to say that your subsequent criminal history is irrelevant. That history demonstrates that the present offences were not an uncharacteristic aberration on your part and also that criminal history is relevant in terms of determining your prospects for rehabilitation.
It is fair to say that there has been a significant delay in having these matters brought before the Court. That is no criticism of the police. It appears to me that they could not reasonably have been aware of your identity as the offender, with respect to these matters, until they became aware in 2015. The basis upon which delay may be relevant for sentencing for criminal offences is set out in the decision of the Court of Criminal Appeal in New South Wales in the matter of Blanco v R [1999] NSWCCA 121; 106 A Crim R 303. Wood J, Chief Judge at Common Law, said in that decision at [16], and I quote:
The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach.
(footnotes omitted)
With regard to the matters identified by his Honour it appears to me that there is little likelihood that you were in any uncertain suspense during the period of delay which preceded your charging with respect to this matter. Secondly, there has been little demonstrated progress towards rehabilitation during the intervening period. Indeed, you have committed further significant offences of a similar nature. I do, however, accept that the offence is somewhat stale and calls for a measure of understanding and flexibility of approach. So in sentencing you with respect to these offences I do take into account delay to that extent.
I note that the offences were committed in 2001 when you were 23 years of age. You are now 40 years old. You are currently in employment and you also have stable accommodation. In the material that has been put before me there is no evidence of any current drug or alcohol issues which need to be addressed. I note that the Pre‑Sentence Report which was prepared by Corrections Victoria assesses you at being high risk of re-offending, particularly in relation to sexual offending. Your prospects for rehabilitation must be considered to be guarded, at best, at the present time. You have a lengthy criminal history and the material before me also demonstrates an inconsistent response to community‑based orders. I acknowledge that you have undertaken a number of programs and have completed a number of community‑based orders, but your approach has been inconsistent with respect to those matters.
I take into account, in sentencing, your pleas of guilty with respect to these matters. They were not entered at the earliest opportunity. You initially entered pleas of not guilty presumably on the basis of your assertion that you have no recollection of these offences or, indeed, of being in the Australian Capital Territory in 2001. As I indicated to your counsel, in argument, I have great difficulty in believing that proposition.
If you were, in truth, residing in Western Australia in 2001 it beggars belief that you could not remember travelling to the ACT, even if you had some difficulty in remembering the actual offences. I have some difficulty even in accepting that you may not recall the specific offences because there is nothing in the material before me to suggest that you were intoxicated at the time that you committed these offences. The fact that you suggest that you have no recollection of these offences, in circumstances where that is extraordinarily unlikely, means that you do not fully acknowledge your guilt with respect to these matters.
I do not accept that your pleas of guilty show any real remorse for this offending. I do, however, acknowledge the utilitarian value of these pleas and, in particular, the fact that they mean that the victims are not required to give evidence in any trial. I will reduce by approximately 15 per cent the sentences that I would otherwise have imposed in order to reflect your pleas of guilty.
In sentencing you I must also take into account the effect that your offending had on your victims. I have not had a victim impact statement from MC, but the victim impact statement from EI speaks very eloquently of the significant and ongoing impact that your offending has had upon her. I do note that the agreed Statement of Facts reveals that, understandably, each of the victims was very distressed as a consequence of your actions.
It was accepted and, I think, correctly accepted by your counsel that sentences of imprisonment are called for with respect to these offences. The question is how are those sentences to be served? Your counsel submitted that the requirements of sentencing would be satisfied by the imposition of suspended sentences of imprisonment. The Crown submitted that full‑time sentences of imprisonment were appropriate. In my opinion both general and personal deterrence are relevant considerations in sentencing you for these offences. In addition, you need to be appropriately punished for a brazen attack on two young women in broad daylight in a public place.
In my opinion some element of full‑time imprisonment is inevitable with respect to these matters. Nothing less than sentences involving an element of full‑time imprisonment would be adequate in order to reflect the seriousness of the offending and to deter you and others from committing this type of offence.
Sentence
With respect to matter number 11791 of 2016, using the Magistrates Court charge numeration, the offence of committing an act of indecency on MC, you are convicted and you are sentenced to 10 months imprisonment, which I have reduced from 13 months to reflect your plea of guilty, commencing today 12 February 2018 and expiring on 11 December 2018.
With respect to charge 11793 of 2016, a charge of assault with intent to commit an act of indecency, you are convicted and sentenced to eight months imprisonment, which I have reduced from 10 months in order to reflect your plea of guilty, commencing on 12 June 2018 and expiring on 11 February 2019.
With respect to the remaining matter, charge 11792 of 2016, the charge of committing an act of indecency in the presence of EI, you are convicted and sentenced to eight months imprisonment, commencing on 12 September 2018 and expiring on 11 May 2019.
As you will have observed, I have made the final two sentences significantly concurrent with other sentences in order to reflect the circumstances of the offending, but also to take into account the requirements of totality.
Therefore, the aggregate sentence is one of 15 months imprisonment, commencing today and expiring on 11 May 2019.
I have set a non‑parole period of eight months, commencing on 12 February 2018 and expiring on 11 October 2018.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 16 May 2018 |