Regina v Morgan

[2004] NSWCCA 194

CITATION:	Regina v Morgan [2004] NSWCCA 194
HEARING DATE(S):	7 June 2004
JUDGMENT DATE:	17 June 2004
JUDGMENT OF:	Dowd J at 1; Hislop J at 2; Smart AJ at 3
DECISION:	See para 31
CATCHWORDS:	Serious offences - amendment of sentences initially passed by altering sentence structure and thereby increasing effective head sentence by 9 months when amendment due to a misconception and no reasons given for increase when sentences initially passed within permissible range - period on parole too short.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Nil
PARTIES :	Regina v Vincent Morgan
FILE NUMBER(S):	CCA 60038/04
COUNSEL:	(A) R Button (C) B Knox SC
SOLICITORS:	(A) R Davies (C) S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/61/0201
LOWER COURT JUDICIAL OFFICER :	Woods ADCJ

IN THE COURT OF
CRIMINAL APPEAL

DOWD J

HISLOP J

SMART AJ

Thursday, 17June 2004

Regina v VINCENT MORGAN

Judgment

1. DOWD J: I have read the judgment of Smart AJ in draft form. I agree with the proposed orders and his reasons therefor.

2. HISLOP J: I agree with Smart AJ.

3. SMART AJ: Vincent Morgan seeks leave to appeal against sentences of imprisonment imposed upon him on 6 June 2003, being a revision of the sentences imposed on 5 June 2003. The judge purported to act under the slip rule.

4. The effect of the revision was to extend the overall length of the head sentences by 9 months.

5. In his remarks of 5 June 2003 the judge first dealt with the sentence for count 4, sexual intercourse without consent, and imposed a sentence of 4 years imprisonment with a non-parole period of 2 years 9 months. No dates of commencement or expiry were mentioned. The judge next stated that for the indecent assaults (counts 2 and 6) he imposed on each a sentence of imprisonment of 20 months with a non-parole period of 14 months. The judge then considered totality and determined that the sentence on count 2 should be cumulative on the sexual assault count (count 4). As to the second indecent assault (count 6) he considered that it was so close to the sexual assault that the sentence on count 6 should be served concurrently. Again no dates of commencement and expiry were mentioned.

6. One problem is that the judge did not state the total effective head sentences and the total non-parole periods. The principle of totality was not adequately considered and implemented.

7. On 5 June 2003 the judge endorsed the indictment that on the charge of sexual assault the applicant was "convicted & sentenced to a term of imprisonment for 4 years to date from 2/6/03 & expire on 1/6/07. I set a NPP of 2 years & 9 months to date from the 2/6/03 & expire on 1/3/06" and also:

"On each of the counts of indecent assault Crimes Act 61 convicted and sentenced to terms of imprisonment for 20 months to be served concurrently with each other but cumulated on the sexual assault sentence to date from 2/3/06 & to expire on 31/10/07. I set a NP Period …"

8. Much of the remainder of the endorsement is obscured by a sheet pasted over it but it is known that the non-parole period was 14 months. The parts which are not obscured contain a reference to special circumstances and release to parole.

9. Thus, under the sentences as originally passed and endorsed the applicant was facing head sentences effectively totalling 4 years 5 months and non-parole periods totalling 3 years 11 months.

10. Although the transcript of proceedings is dated 5 June 2003 the context suggests that at least from line 37 of page 2 it should bear date 6 June 2003. On that day the judge said, "I need to re-open this matter on the basis of the slip rule. In the way I made the orders yesterday they were slightly confusing and I appreciate that I should've made the orders in the consecutive order that the counts were in the indictment and then that would make it clear."

11. As mentioned, the sentences contained in the judge's remarks of 5 June 2003 contained no commencing and expiry dates but the sentences endorsed on the indictment contained the requisite dates, followed the judge's remarks delivered in open court and were not confusing. There is no need for a judge to impose sentences in the consecutive order that the counts appear in the indictment. Frequently, this is not done and for good reason.

12. On 6 June the judge discussed with counsel the structure of the sentences and their dates. That discussion reveals some confusion and some misunderstandings. During the discussion, and after the judge indicated he was going to change the order of sentences, counsel for the offender said, "in effect … it's a total sentence of five years and two months and a non-parole period of three years 11 months …" The judge replied, "Yes. In effect, yes."

13. From the interchanges which took place while the judge was delivering his further remarks on sentence on 6 June 2003, it appears that difficulty was being experienced with the dates of the various sentences and their structure. Further, when the prosecutor pointed out that the sentence on the second indecent assault count (count 6) should be concurrent with the sentence on the sexual assault without consent charge, the judge said it did not matter and made it concurrent with the sentence on the first indecent assault count (count 2), although he had previously held that there were two separate incidents. The alteration suggested by the prosecutor had little practical effect.

14. Consequent upon his remarks on sentence of 6 June 2003 the judge made the following endorsement on the indictment:

"On count 2 the indictment being indecent assault Crimes Act Section 61 L convicted and sentenced to a term of imprisonment for 20 months to date from 2nd June 2003 and to expire on the 1st February 2005. I would set a non parole period of 14 months to date from the commencement of the sentence and to expire on the 1st August 2004.
On Count 4 on the indictment being of Sexual assault, Crimes Act Section 61 I, convicted and sentenced to a term of imprisonment for 4 years to be served cumulative on the sentence for Count 2 above and to date from the 2nd August 2004 being the expiry date of the non parole period in count 2 above, and expire of the 1st August 2008. I set a non parole period of 2 years and 9 months to date from the commencement of the sentence being the 2nd August 2004 and to expire on 1st May 2007.
On Count 6 on the indictment being sexual assault Crimes Act Section 61L convicted and sentenced to a term of imprisonment for 20 months to be served concurrently with the above sentences and to date from the 2nd June 2003 and to expire on the 1st February 2005. I set a non parole period of 14 months to date from the commencement of the sentence and to expire on the 1st August 2004.
["sexual assault" should read "indecent assault"]
As already noted I do find special circumstances.
To be released to parole at the expiration of the non-parole periods being the 1st May 2007."

15. There is no statement or acknowledgement on 6 June 2003 that the overall length of the head sentences was being increased and no justification offered for taking such a course and how it impinged upon the principle of totality. Perhaps the failure to include the dates in the remarks on sentence on 5 June 2003 constituted the requisite error. It is not known whether the endorsement of 5 June 03 was made in Court and read out or made in chambers. A question arises whether s 43 of the Crimes (Sentencing Procedure) Act 1999 enabled the judge to do what he did. It is not necessary to pursue this issue. The proceedings on 6 June 2003 depended upon the misconception that the sentences of 5 June 2003 were confusing and that the sentences for the offences should be imposed in the consecutive order of the counts in the indictment.

16. In his sentencing remarks of 5 June 2003 and also in those of 6 June 2003 the judge found special circumstances and that finding was reflected in each of the individual sentences imposed. The judge's attention was not directed to the effect of the accumulation of the sentences and that this of itself was a special circumstance. On total (head) sentences of 4 years 5 months a non-parole period reflecting the usual ratio of three quarters would be 3 years 3 months and 3 weeks (or rounded down 3 years 3 months). Non-parole periods totalling 3 years 11 months do not sufficiently reflect a finding of special circumstances although an adjustment was made to the non-parole period of each sentence. The head sentences passed on 5 June 2003 and the structure of those sentences, as well as those passed on 6 June 2003, were within the permissible range. The total non-parole periods of 3 years 11 months was erroneous when compared with head sentences totalling 4 years 5 months, but not when compared with head sentences totalling 5 years 2 months. The sentencing exercises in the present case were unfortunate.

17. The offences were serious. On the evening of 5 March 2002 the offender went with another person to the complainant's house a little after 10.30pm. Her de facto was there. There was an amount of drinking at the house that evening with all of them drinking moselle from a cask. The other person and the de facto left the house at different times during the early hours of 6 March 2002. The offender and the complainant continued drinking. She left the room and, on returning a short time later, she found the offender asleep at the kitchen table. Sometime after 3.45am she asked him to go home and refused his request to sleep at her place. She walked him across the street to his home, carrying the second moselle cask he had obtained.

18. While inside the house the offender sought intercourse with the complainant and a struggle ensued in which she was thrown onto a bed. At one stage he attempted to pull her shorts down and to insert his tongue in her vagina. He pushed her against a door and demanded intercourse. After a struggle she escaped from the offender, running first to the house of her friend who was told what had happened.

19. The offender returned to the complainant's house. After some further events in which the offender was asked to leave her house she went to the middle bedroom to sleep with her children. She fell asleep. Later she felt her body being moved from the waist down. When she opened her eyes she realised that the offender was having penile/vaginal intercourse with her. As she was getting dressed he came up behind her assaulted her and committed an act of indecency, his penis touching the outside of her vagina.

20. This short summary of the facts reveals significant criminality on the part of the offender. He was born on 10 April 1957.

21. The offender's record affords him no leniency and extends from 1967 to the present. While many of the entries are for offences at the lower end of the criminal scale, the record contains details of one serious offence. In 1977 he was sentenced to 10 years penal servitude for manslaughter with a non-parole period of 3 years. In November 1990 he was sentenced on each of two charges, namely malicious wounding and assault occasioning actual bodily harm, to 6 months imprisonment. All the other offences as an adult were dealt with by way of fines and bonds with the exception of one order for community service. There were no prior sexual offences.

22. On the sexual assault charge, after taking into account the subjective features of the offender the judge started with a sentence of 5 years which he reduced to 4 years for the plea of guilty. He commented, "there is virtually nothing that can be stated on behalf of the prisoner to be considered as special circumstances to alleviate the penalty provided by law." The judge demonstrated why this was so. Amongst other things, the judge referred to the offender's alcoholism, his ample opportunity to address that problem and his disadvantaged childhood and teenage years. After noting that the offender had been held in protective custody and its effects the judge said: "I will find special circumstances to justify a slight variation in the ratio of non parole to the normal."

23. The errors outlined herein lead to this Court re-sentencing the prisoner. Two affidavits require consideration. The offender states that he was held at the Goulburn Correctional Centre from June 2003 to about the last week of April 2004. He says that for his own safety he placed himself in protection in the first couple of weeks. As at 28 May 2004 he had been at Long Bay for five weeks. He is having a lonely time in prison because his family have been unable to visit him. He presently enjoys a C1 classification and hopes that he will be classified C2 which would allow him to apply for work release outside the prison. He has applied to be transferred to Kirkconnell Correctional Centre so his family can visit him. Since his transfer to Long Bay he has not as yet been able to see the Drugs and other workers because of the demand for their services.

24. On 27 May 2004 the Deputy Governor, Metropolitan Special Programs at Long Bay reported:

(a) Since June 2003 the offender has been in a Special Management area and placed on a Protection Direction with limited association.
(b) The offender is currently placed in a Special Management Area of the Metropolitan Special Programs Centre. The programs available to the offender take about 10 months to complete and he will remain in the area mentioned until he completes the programs, after which his placement at Kirkconnell will be considered.
(c) The offender is accommodated within a minimum security area with considerable freedom of movement and has access to all program facilities, library, recreational activities, visits. He is released from his cell from 7.00am to 8.30pm daily.
(d) The offender is not denied access to employment, education or other facilities due to his placement in the Special Management Area.
(e) The offender will be expected to participate in programs to address his offending behaviour prior to progress to the lowest possible classification.

25. The report of the Deputy Governor leads to the conclusion that the offender will not suffer from many of the disadvantages associated with Protection and has not suffered from such disadvantages to any appreciable extent in the past. It is certainly time for him to address his alcohol problems.

26. The offender did not challenge the individual sentences imposed upon him. He did however contend that as the first indecent assault (count 2) occurred earlier in the same morning as the sexual assault and as a precursor to it, the sentences should be concurrent to some extent and only partially cumulative.

27. The accumulation of sentences is of itself a special circumstance. It is usual to adjust the non-parole period of the second or later sentence to allow for the effect of the accumulation. Despite the findings of the judge there is no other special circumstance which warrants a reduction of the non-parole period.

28. There are two points in this appeal which warrant attention, namely, the structure of the sentences and the non-parole period. As the sentences promulgated on 5 June 2003 fell within the permissible range, the structure of the sentences was permissible and produced a total result which fell within the permissible range and followed the remarks on sentence they should not be altered except for some sound reason and one which falls within s 43 of the Crimes (Sentencing Procedure) Act 1999. The reason for altering the structure was due to a stated misconception, namely, sentences should be imposed for offences in the order in which the counts are listed in the indictment. Further, no reasons were given for the effective increase of the total of the head sentences by 9 months as a result of the restructuring of the sentences, assuming that this was appreciated.

29. On total head sentences of 4 years 5 months, non-parole periods totalling 3 years 11 months were incorrect in the circumstances of the present case. That is too short a period on parole and well below the usual parole period of one fourth of the sentence. There does not appear to be a good reason for having such a short parole period.

30. The correct non-parole period in total is one of 3 years 3 months. Anything less would not sufficiently reflect the gravity of the offences and the need for substantial and adequate punishment. This will result in an adjustment to the non-parole period on the first indecent assault charge (count 2). It is intended that the effective head sentences total 4 years 5 months and that the non-parole periods total 3 years 3 months, both from 2 June 2003.

31. I propose the following orders:

1. Leave to appeal against sentences granted.
2. On the charge of sexual assault without consent (count 4) appeal against sentence allowed and sentence of 6 June 2003 quashed. In lieu of the sentence imposed, the applicant, Vincent Morgan is sentenced to imprisonment for 4 years commencing on 2 June 2003 with a non-parole period of 2 years 9 months expiring on 1 March 2006.
3. On the charge of indecent assault (count 6) appeal against sentence allowed and sentence of 6 June 2003 quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for 20 months commencing on 2 June 2003 with a non-parole period of 14 months expiring on 1 August 2004.
4. On the charge of indecent assault (count 2) appeal against sentence allowed and sentence of 6 June 2003 quashed. In lieu of the sentence imposed, the applicant is sentenced to imprisonment for 20 months commencing on 2 March 2006 with a non-parole period of 6 months expiring on 1 September 2006 on which date the applicant will be eligible for release on parole.
5. Declare and order that the sentences of 5 June 2003 imposed in the District Court at Dubbo have been and are quashed and that the sentences imposed on the applicant are as stated in paragraphs 1 to 4 inclusive of these orders.
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Last Modified: 06/28/2004