R v Morris

[2009] NSWDC 223

CITATION:	R v Morris [2009] NSWDC 223
HEARING DATE(S):	4 May 2009. Sentence Date 7 May 2009. Reasons delivered 31 August 2009.
JUDGMENT DATE:	31 August 2009
JURISDICTION:	Crime
JUDGMENT OF:	Phegan DCJ
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v Outami [2001] 127 ACrimR 369 R v Stambolis [2006] NSWCCA 310
PARTIES:	The Crown Matthew James MORRIS
FILE NUMBER(S):	2006/00010588

1 The offender, Matthew James Morris, was tried on indictment before a jury in Port Macquarie District Court. The original indictment contained eight counts. The first count contained a charge of common assault on Tyron Windsor, the son of Lydia Murphy, on 27 July 2006. The second, third, fourth and fifth counts contained charges of sexual intercourse without consent with Lydia Murphy on 29 July 2006. The sixth count contained the charge of assaulting Lydia Murphy, occasioning actual bodily harm, also on 29 July 2006. The seventh count contained a further charge of sexual intercourse without consent with the same victim on 30 July 2006. The eighth count charged that the offender detained Lydia Murphy for advantage between 28 and 31 July 2006 and occasioned her actual bodily harm.

2 The offender pleaded guilty on arraignment to the sixth count of assault occasioning actual bodily harm and not guilty on the remaining seven counts.

3 The trial on the remaining seven counts commenced on 1 February 2008 and on 13 February 2008, the jury returned verdicts of not guilty on the first count and guilty on counts two to seven (that is two to five, seven and eight on the original indictment). It is the counts two to seven which are now before me for sentence.

Background

4 At the time of the offences, the victim was living in community housing at Port Macquarie with her son Tyrone who was approaching his first birthday. She had separated from the biological father of Tyrone who had custody of their older sons, Jordan (four) and Toby (three).

5 According to the victim, following her separation from her former partner, she had started a relationship with the offender in April 2006. At first, they lived in the community housing rented by the victim and, after an intervening period of about two months in the offender’s mother’s house, returned to the community housing where they were at the time of the offences.

Findings of fact

6 Given the jury’s verdict of guilty on six counts, I am entitled to assume that the jury found beyond reasonable doubt those facts essential to a verdict of guilty on each count. Beyond those facts, I have adopted as fact only those parts of the evidence at the trial relevant to sentence, on which I am satisfied beyond reasonable doubt, together with evidence tendered in proceedings on sentence.

7 With regard to the charge of assault occasioning actual bodily harm, to which the offender pleaded guilty, there are no agreed facts in writing, but counsel for the offender has indicated from the bar table that the evidence of the victim, which goes exclusively to that offence, is not contested.

8 The offender did not give evidence either at the trial or in these sentence proceedings. However, in statements made to the authors of reports now in evidence, he has consistently denied any sexual assault. Such statements can be given little, if any, weight. In this regard I rely on the following passage from the judgment of Smart AJ in R v Outami [2001] 127 ACrimR 369 at 377, with which Spigelman CJ concurred at 380 [referring to statements made by the offender to psychiatrists and a psychologist]:

… while those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases there is only very limited weight [sic] can be given to such statements.

9 In this case no weight can be given to statements of the offender inconsistent with the evidence at the trial which the jury must have accepted as fact for the purpose of a guilty verdict.

The facts

10 On the night of 28 July 2006, a Friday, the victim and the offender slept on a mattress in the lounge room of the Port Macquarie premises. On the day before, the victim had helped the offender carry the mattress from the bedroom. Before going to sleep on the Friday night, the offender had handcuffed the victim to him so that she could not leave him during the night. He suspected her of having sex with other men and was determined to do what he believed was necessary to prevent this happening again.

11 The following morning, Saturday 29 July 2009, the offender accused the victim of getting out of the handcuffs during the night. It was the victim’s evidence that the handcuffs were still on when she woke up and it was the offender who first removed the cuffs from his wrist, leaving them on hers.

12 The offender pulled down the victim’s pants and put his fingers in her vagina without her consent. After removing his fingers from her vagina, he smelt them and said “smells like lubricant”. It was the act of the digital penetration that constituted the offence of sexual assault in the second count.

13 The offender then produced his penis from his unzipped trousers and, pulling the victims face towards it, said “suck this”. The victim resisted his attempt to push his penis into her mouth at which point he slapped her face with his penis. The victim continued to resist but the offender finally managed to insert his penis into her mouth, more than once, causing her to gag. The oral penetration constituted the offence of sexual assault contained in the third count.

14 The offender then put on a pornographic DVD and masturbated “to get it hard”. When the victim proceeded to pull her pants back up, the offender said there was no point because he needed to: “stick it in to see if you are loose”. The accused then pulled the victim’s pants down, straddled her and put his now erect penis in her vagina. She was pushing him away and telling him to “fuck off” but he continued to hold her down by the shoulders. He then said: “You are loose. You must have got out of the handcuffs”. Intercourse continued for “a few minutes” until the offender ejaculated. The penile penetration was the sexual assault in the fourth count.

15 After withdrawing his penis from the victim’s vagina following ejaculation, the offender punched the victim and forced his fingers into her vagina, saying “I’ll fuck all your insides up so you can’t sleep with anyone else.” While this was happening, the victim was pushing him away. She was crying, denying his accusations of infidelity and telling him to stop. This second digital penetration constituted the offence of sexual assault in the fifth count.

16 After the offender removed his fingers from the victim’s vagina, he proceeded to punch her in the vaginal area. The victim was in pain and attempted to get away from the attack. It was this attack, which constituted the offence of assault occasioning actual bodily harm to which the offender pleaded guilty. This offence was the subject of the sixth count on the original indictment which was removed from the jury because of the guilty plea.

17 Later that day the victim started to bleed from the vagina. She told the accused of this and said she needed to go to the hospital. He ignored her request. That night he handcuffed her to him again before he went to sleep.

18 When both had woken up the following morning, the accused said to the victim that someone had been there, because he could smell port spilt on the floor near the mattress in the lounge room. The victim responded that there was no way she could have got liquor while handcuffed to him. That afternoon, he handcuffed her to the television unit next to the mattress. There was a further assault that afternoon during which the offender kicked and punched the victim to the side of the face, causing her to lose consciousness. Following the assault she persuaded him to remove the handcuffs so that she could attend to Tyrone.

19 The offender later grabbed the victim by the hair and pulled her head to his groin. He called her a “slut”. When he started to undo his pants, the victim pleaded with him not to maker her “do this”. However, he hit her face with his penis and pushed it into her mouth. When she tried to pull away, he pulled her head back towards him and ejaculated in her mouth. This incident was the basis of the charge of sexual assault contained in the seventh count in the original indictment and the sixth count in the jury trial.

20 Following the sexual assault the offender put a movie on the DVD player, pulled the victim onto the mattress beside him, handcuffed her to him and went to sleep.

21 The next morning, Monday 31 July, the offender told the victim that she smelt of fish from friends who like fishing. He removed the handcuff from his wrist and attached it to the wall unit. He then punched and kicked her, removed the handcuffs from her wrist, dragged her to the bathroom and forced her to have a shower. The victim later convinced the offender that she had to go to Community Housing that morning. In order to allay his suspicion that she was going to “dob him in”, she said that if she did not go, Community Housing would come to the house and see that “something was wrong”.

22 He agreed to go and they went to the local shopping centre where the Community Housing office was located. After spending some time shopping, the victim proceeded to the Community Housing office with the offender. He waited outside while she went in to speak to the officer who was looking after her housing arrangements. When the officer asked about the apparent injuries to her face and neck, she told the officer how she had been handcuffed and kicked and had been bleeding from the vagina. Police were immediately contacted and, when they arrived soon after, they arrested the offender after speaking briefly to the victim, who was taken to hospital by ambulance.

23 Police later went to the premises where the offences had taken place and gained entry with keys supplied by the victim. They found a set of handcuffs attached to the wall unit and the mattress in the location described by the victim.

The offences

24 The offence of sexual intercourse without consent under s61I of the Crimes Act 1900 (counts 2, 3, 4, 5 and 7) carries a maximum sentence of 14 years imprisonment. It is also subject to a standard non-parole period of seven years.

25 Under s59 of the Crimes Act, the offence of assault occasioning actual bodily harm carries a maximum sentence of 5 years imprisonment.

26 Under s62 (b) of the Act, the offence of detain for advantage occasioning actual bodily harm carries a maximum sentence of 20 years imprisonment.

27 For the purpose of the standard non-parole period in sexual assault counts, it is necessary to determine where, in relation to the mid-range of objective seriousness, each incident falls.

Objective seriousness

28 It was submitted by Mr Trevallion, counsel for the offender that all five incidents of sexual assault fell within or below the mid-range.

29 The first incident (count 2) was lowest on the scale of objective seriousness. It was brief and unaccompanied by any self-gratification. The second incident (count 3) was more prolonged and was accompanied by greater resistance and correspondingly greater force. Although it caused obvious discomfort, there was no evidence of physical harm and, as in the previous assault, there was no sexual gratification on the part of the offender. On the victim’s own evidence , it is unlikely that the offender had attained on erection at that stage. It was Mr Trevallion’s submission that this incident was below, even if just below, the mid range.

30 There was no serious challenge to the classification of the sexual assault in the fourth count as mid-range. There was force used, intercourse continued for “a few minutes” and terminated in ejaculation. The victim was resisting and trying to push the offender off. A similar conclusion can be drawn with regard to the seventh count on the original indictment, that is, the last of the sexual assaults. This was accompanied by physical as well as verbal abuse. On this occasion the penetration was oral, not vaginal, but it was accompanied by force and ended in ejaculation.

31 The remaining sexual assault, namely that contained in the fifth count, is distinguished from the others because it was committed in the context of the offence of assault occasioning actual bodily harm (count 6) to which the offender pleaded guilty. Care must be taken not to punish the offender twice for the same acts of physical violence. In terms of the physical act of sexual assault this incident is comparable to the first incident. However, its objective seriousness is aggravated by an accompanying threat of a most vicious kind: “I’ll fuck your insides up...”

32 The assault to which the offender pleaded guilty was particularly vicious. It included a violent attack on the victim’s vaginal area, causing vaginal bleeding, carried out as a form of punishment and revenge for the victim’s suspected infidelity. While not the subject of a standard non-parole period, its objective seriousness requires the imposition of a custodial sentence.

33 The offence of detaining for advantage pervades the sequence of events from Friday evening to Monday morning. It involved persistent physical abuse, an additional ingredient of the offence charged, which occurred on occasions over and above those involved in the other counts in the indictment. There was the frequent handcuffing of the victim and the refusal of the offender to let the victim out of his sight. His behaviour towards the victim throughout the weekend was humiliating and degrading. Again there is no standard non-parole period but a sentence involving a substantial period in full-term custody is appropriate, particularly when regard is had to the statutory maximum sentence of 20 years’ imprisonment.

Subjective factors

34 In my assessment of relevant subjective matters, I have been greatly assisted by two reports prepared by Mr John Taylor, Forensic Psychologist, dated 29 March and 8 October 2008 (Exhibit 1), based on interviews with the offender. In the preparation of the second report, Mr Taylor also had access to medical records and the trial transcript.

35 The offender grew up in Port Macquarie. He was born on 3 November 1983 and was therefore 22 years old when the offences were committed. His mother, who was part Aboriginal, and his father, who was Caucasian, separated when he was two or three years old, following the birth of a younger brother. He lived with his mother until he was 11 or 12 when he went to live with his father, who had been in a relationship with another woman since his parents’ separation. He later went back to live with his mother and continued to live with her intermittently. He did not develop a very close relationship with either parent, although he was closer to his mother that to his father, and described himself as the “black sheep of the family”, which included four half brothers and a half sister as well as his younger brother. His father died recently.

36 His schooling was marked by disruptive behaviour. He was suspended when about nine years of age for swearing at a teacher. He told Mr Taylor that he “was always in trouble”. He left school in the first week of year 9, at the age of 15.

37 After leaving school the offender did some work experience for 2 or 3 months. At 21 he worked for a further 2 or 3 months as a landscaping labourer but, apart from that brief period, the whole of his adult life has been spent unemployed.

38 From the age of thirteen, he drank heavily at weekends and this continued for two or three years. Since that time he has only consumed a limited amount of alcohol on social occasions.

39 The offender’s drug use has been more problematic, especially with cannabis, which he also commenced smoking at 13. His use increased to the point where, prior to his most recent entry into custody, he was spending most of his money on drugs, which by that time included amphetamines and ecstasy for a brief period. His drug use contributed to problems with anger management. His criminal record is marked by violence related offences, including a number of convictions for assault, the most recent of which postdates the offences before me for sentence.

40 Although there is only limited evidence before me of the relevant incident, it appears that the most recent assault was committed in circumstances which displayed striking similarities to those in July 2006. Following his release on bail on the offences committed at that time, the accused commenced a relationship with a woman who alleged that, on the occasion of the assault, the offender had refused to allow her to leave his home following an argument about drugs. There followed a series of assaults in the course of which the offender accused the woman of having sex with one of his friends. This incident, which occurred in September 2007, came after a period of heavy drug use by the offender and attempted suicide. He was convicted of assault occasioning actual bodily harm and sentenced to eighteen months imprisonment, with a non-parole period of twelve months.

41 In his second report, prepared a year after the September 2007 incident, Mr Taylor referred to the offender’s “paranoid delusional belief that his girlfriend was having sex with other men”. It appears that Mr Taylor was referring to the victim in these proceedings although the offender appears to have told him of the September 2007 incident. It is therefore not entirely clear which “girlfriend” Mr Taylor was referring to in his diagnosis of paranoid delusion, which “severely impaired” the offender’s judgment.

42 With regard to a diagnosis of paranoia, there is other evidence before me in two reports from Justice Health (Exhibit B). In the first, dated 30 January 2009, the author, Professor David Greenberg, noted Mr Taylor’s diagnosis but was unable to give a definitive opinion of his own. He had been unable to conduct a comprehensive psychiatric assessment of the offender because of his “agitated and hostile” mental state. The second report, prepared by Dr Anthony Samuels, a forensic psychiatrist, was dated 25 February 2009. Dr Samuels, who was able to make an assessment, could find no evidence of any “major affective or anxiety disorder of psychiatric condition”. However, Dr Samuels noted the history of drug abuse and was of the opinion that the offender would be likely to benefit from “some psychological support in relation to issues of anger and aggressions [sic]” and support from drug and alcohol services “in relation to his significant polysubstance problems”.

Deterrence

43 There is no doubt that the offender’s behaviour at the time of the commission of the offences was fuelled by a highly exaggerated and, more likely than not, totally unfounded suspicion of the victim’s infidelity. It included the prolonged and vindictive humiliation and degradation of the victim over three days. In her Victim Impact Statement dated 12 March 2008 (part of Exhibit A), the victim refers to the need to move constantly following the commission of the offences. She reports feelings of anxiety, fear and anger; a loss of confidence and independence. As a consequence of the assault she suffered vaginal pain and her periods continue to be painful and irregular. It is noted that this statement remains untested and uncorroborated. However it must be said that on the evidence of the victim, which must have been accepted by the jury, such consequences would be reasonably expected even in the absence of a Victim Impact Statement.

44 Suspicions of infidelity do not justify any recourse to retaliation and retribution much less measures as vindictive and degrading as occurred in this case. There is a need for the sentences to contain a significant element of specific deterrence.

45 Much the same can be said of the need for general deterrence. The evidence of the mental state at the time of the commission of the offences is ambivalent. However, even if the offender was suffering delusions induced by some psychological condition, a clear message must be sent to the public that the law will deal severely with recourse to any violence as a response to infidelity, even is such infidelity has occurred.

Special Circumstances

46 The determination of special circumstances is not easy in this case. Any commitment to rehabilitation is compromised by the continued denial on the part of the offender that any sexual assault took place. However, he has acknowledged his low anger threshold and the particular problems which this presents in his relationship with women. There is also some acknowledgement on his part of the need for assistance in addressing his dependence on drugs. Both Mr Taylor and Dr Samuels recommend counselling and treatment in both areas on release. The offender faces a lengthy period in custody which is likely to add to the need for a substantial period under supervision to assist in rehabilitation. I therefore find special circumstances.

Section 21A Crimes (Sentencing Procedure) Act 1999

47 Both counsel were of the view, which I share, that the section is of limited relevance in this case. Most of the applicable aggravating factors in s 21A(2) are inherent in the offences and should therefore not be allowed to disproportionately increase the sentence otherwise appropriate. The one matter of aggravation which requires separate consideration is the offender’s record of previous convictions (s21A(2)(d)), on which I have already made some comment. Of particular relevance is the recent conviction for offences committed in circumstances not unlike those in the present case which occurred after release on bail following the arrest of the offender on the charges now before me for sentence.

48 With regard to mitigating factors, apart from those which mirror-reverse applicable aggravating factors, those of potential relevance are the absence of planning or organisation (s21A(3)(b)); unlikelihood of re-offence (s21A(3)(g)); prospects of rehabilitation (s21A(3)(h)); remorse (s21A(3)(l) and the guilty plea (s21A(3)(k)).

49 Apart from the need to have made some resolution of the means of detaining the victim, there was no evidence of any significant planning or organization. With regard to the likelihood of re-offending, even if there is some understanding on the part of the offender of his problems with anger management and relations with the opposite sex, it is impossible to exclude the likelihood of re-offending particularly in view of the incident in September 2007, which occurred after his arrest on the offences committed in July 2006.

50 Prospects of rehabilitation, already discussed in the context of special circumstances, must be approached with caution. There is evidence of remorse only with regard to the consequences of the offence of assault-occasioning actual bodily harm, to which the offender pleaded guilty. There can be no remorse for the sexual assaults which the offender continues to deny. To the contrary, he appears to harbour some resentment against the victim whom he blames for falsely accusing him of these offences and causing his depression and attempted suicide following his release from custody on remand.

51 The plea of guilty is relevant only to the offence of assault occasioning actual bodily harm and will be taken into account in due course in the sentence imposed for that offence.

The Sentence Parameters

52 The offender was arrested on these offences on 31 July 2006 and placed in custody on remand. He was released on bail on 11 April 2007. While on bail he was arrested on 1 October 2007 following the incident in September of that year for which he was convicted and sentenced to 18 months imprisonment including a non-parole period of 12 months. The non-parole period expired on 30 September 2008 and the offender has remained in custody on a remand on the matters before me for sentence since that date. When account is taken of the periods in custody relating solely to these offences, the appropriate date for commencement of sentence is 20 January 2009.

53 In constructing the sentences, I have given careful consideration to the principle of totality, but only after determining the appropriate sentence for each offence (Pearce v The Queen (1998) 194 CLR 610).

54 I will first take the offence of assault occasioning actual bodily harm contained in the sixth count to which the offender pleaded guilty. Since the guilty plea was entered only on arraignment, its utilitarian value is reduced and the reduction in the sentence otherwise appropriate should be no more than ten to fifteen per cent (R v Stambolis [2006] NSWCCA 310).

55 No more that ten per cent is justified when further account is taken of the effect of the not guilty pleas in the other counts. In the result the prosecution was called on to present most of the evidence that would have been relevant to the sixth count and very little court time was saved except that the jury was relieved of the task of determining guilt of that count. The appropriate sentence, had there been no plea of guilty, would have been a fixed term of 20 months imprisonment. That has been reduced by two months to eighteen months, on account of the guilty plea.

56 The offence in count eight, of aggravated detention for advantage, has been the subject of earlier comment. It involved the persistent humiliation and degradation of the victim over three days. The sentence must reflect not only the element of the deprivation of liberty per se, but also the offender’s wanton and persistent disregard of the personal integrity of the victim. Taking all relevant matters into account I have determined that the appropriate sentence is one of imprisonment for a fixed term of six years. As in the sentence imposed on the sixth count, there is no additional term on parole because of the sentences imposed in counts two to five and seven which include such terms and also address the principle of totality in that respect.

57 I will now proceed to deal with the five counts of sexual assault beginning with the second count. The relevant facts have already been recorded and will not be repeated. It was noted earlier that the offence was below the mid-range of objective seriousness and a sentence of imprisonment of three years followed by a further period on parole of one year and six months is appropriate. The offence on the third count was more serious and only marginally below the mid-range. The sentence in that case should be for five years followed by a further two years on parole.

58 The offence on the fourth count is within the mid-range but on the lower side. The non-parole period is therefore one year short of the statutory standard period of seven years, that is, six years, with a further period on parole of two years and six months. The offence in the fifth count attracts a sentence equivalent to that imposed for the third count.

59 The objective seriousness of the offence in the seventh count is of the same order as that in the fourth count and therefore is subject to a sentence of imprisonment with the same non-parole period of six years. However, the further period on parole is extended to three years and six months in order to give effect to the finding of special circumstances in the context of the total sentence to which I will now turn.

60 While some of the offences require partial accumulation in order to give effect to their separate identity, all seven offences were interconnected as part of the offender’s single-minded pursuit of deterrence and retribution for perceived infidelity on the part of the victim, overarched by the detention of the victim for advantage over a three-day period. I therefore propose to order that the sentences be served concurrently subject to the following: the sentence imposed on the sixth count for assault occasioning actual bodily harm should be served independently of the other sentences to the extent of two thirds of the total sentence, that is, twelve months. Similarly two years of the sentence imposed for detaining for advantage should be served independently of the sentences imposed for sexual assault but should overlap by six months the sentence imposed for assault occasioning actual bodily harm. The sentences for sexual assault on the first four counts will be served concurrently but separated by one year for the sentence imposed for sexual assault on count seven in order to reflect the fact that this offence occurred on the day following, and therefore entirely separate in time, from the other sexual assaults.

61 Before recording the sentences, it is necessary to place on record that the reasons for sentence are delivered after sentence was passed on 7 May 2009. On that occasion the offender asked that he be excused from the courtroom while the judgment on the sentence was delivered. With the consent of the Crown, this request was granted and only the sentence was passed on that occasion. Because of other urgent matters before the Court on that day, there was insufficient time available to deliver judgment, which was adjourned and is now delivered at Port Macquarie, the trial venue.

The Sentences

62 The sentences passed and recorded on 7 May were as follows:

The offender is convicted of each offence.

On count 2 , the offender is sentenced to a non-parole period of 3 years, commencing 20 January 2011, and expiring 19 January 2014. The balance term of 1 year 6 months is to be served concurrently with the further period of imprisonment in count 7. The total sentence therefore 4 years 6 months, comprises the non-parole period and the balance of the sentence. I find special circumstances.

On count 3 , the offender is sentenced to a non-parole period of 5 years, commencing 20 January 2011, and expiring 19 January 2016. I impose a further period of imprisonment of 2 years to be served concurrently with the further period of imprisonment in count 7. The total sentence therefore is 7 years, comprises the non-parole period and the balance of the sentence. I find special circumstances.

On count 4 , the offender is sentenced to a non-parole period of 6 years, commencing 20 January 2011, and expiring 19 January 2017. I impose a further period of imprisonment of 2 years 6 months, to be served concurrently with the further period of imprisonment in count 7. The total sentence therefore 8 years 6 months, comprises the non-parole period and the balance of the sentence. I find special circumstances.

On count 5 , the offender is sentenced to a non-parole period of 5 years, commencing 20 January 2011, and expiring 19 January 2016. I impose a further period of imprisonment of 2 years, to be served concurrently with the further period of imprisonment in count 7. The total sentence therefore is 7 years, comprises the non-parole period and the balance of the sentence. I find special circumstances.

On count 6 , the offender is sentenced to a fixed term of imprisonment of 1 year and 6 months, commencing 20 January 2008, and expiring 19 July 2009.

On count 7 , the offender is sentenced to a non-parole period of 6 years, commencing 20 January 2012, and expiring 19 January 2018. I impose a further period of imprisonment of 3 years 6 months, to commence on the expiration of the non-parole period, and expiring 19 July 2021. The total sentence is therefore 9 years 6 months, comprising the non-parole period and the balance of the sentence. The offender is eligible for release at the expiration of the non-parole period. I find special circumstances.

Upon release, the offender is to be subject to the supervision of the Probation and Parol Service, with particular regard to psychiatric treatment and counselling for anger/ paranoia management and drug and alcohol relapse.

On Count 8 , the offender is sentenced to a fixed term of imprisonment of 6 years, commencing 20 January 2009, and expiring 19 January 2015.