Morgan v R

Ground 2: whether the verdict on count 2 is unreasonable or cannot be supported by the evidence

1. The applicant's submissions in support of this ground were largely confined to the contention that at trial the Crown did not establish beyond reasonable doubt that the applicant knew, in the sense referred to in s 61D(1) of the Crimes Act 1900 (NSW), that the complainant did not consent to the applicant's conduct (the jury's verdict indicating that it was satisfied that such conduct had occurred). The applicant did not contend that the jury acted unreasonably or without an adequate basis in the evidence by finding that the conduct occurred. However the applicant did submit, without elaboration, that the jury acted unreasonably in finding that the complainant did not consent to the conduct. That submission clearly fails because the complainant gave uncontested and explicit evidence that he did not consent. On appeal, the applicant advanced no reason why the jury should not have accepted that evidence.
2. I therefore confine my consideration of this ground, and the "independent assessment" that I am required to undertake (SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14]), to the issue of the applicant's knowledge. The ultimate question for this Court raised by this ground is accordingly whether the Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant knew that the complainant did not consent to the applicant's conduct (see R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66] citing M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63).
3. Whether it was "open to the jury" to be satisfied of this element of the offence, and therefore of the applicant's guilt, requires this Court to determine: "[W]hether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard" (Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]), emphasis added).
4. In this context, it is important to bear in mind that "the jury is the body entrusted with the primary responsibility of determining guilt or innocence, … [and] the jury has had the benefit of having seen and heard the witnesses" (M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; see also The Queen v Baden-Clay at [65]). This factor assumes particular importance in the present case where the jury heard and saw both the complainant and the applicant give evidence.
5. At trial, the Crown put its case concerning the applicant's knowledge on the basis that the applicant had been reckless as to the existence of the complainant's consent. In this regard s 61D(2) of the Crimes Act deems a person "who is reckless as to whether the other person consents to the sexual intercourse" to know that the other person does not consent to it (see [18] above). The Act does not (and at the relevant time did not) contain any definition of recklessness, leaving that to be determined by reference to the general law.
6. In her closing address, the Crown Prosecutor said that the applicant "didn't even stop to think whether a child of [the complainant's] relative or complete inexperience of that type of activity, whether he consented or not, he was completely reckless, didn't turn his mind to it and just pressed ahead regardless without saying 'this is what I'm going to do to you, do you understand it, do you understand it, are you sure you're right for that' and so on". She then indicated that the trial judge would direct the jury in relation to recklessness (T 249).
7. The trial judge's written directions to the jury included the following: "Knowledge - The Crown must prove to you, BRD [beyond reasonable doubt], that the accused knew that [the complainant] did not consent. If you find the third element proved BRD, that is [the complainant] did not in fact consent, the accused's state of mind at the time of the act of intercourse might have been any one of the following: (a) that he actually knew that [the complainant] was not consenting; or (b) that he simply failed to consider whether or not [the complainant] was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk that [the complainant] was not consenting would have been obvious to someone with the accused's mental capacity if he had turned his mind to it; or, (c) that he realised the possibility that [the complainant] was not consenting but went ahead regardless of whether he was consenting or not; or (d) that he genuinely, though wrongly, believed on reasonable grounds that [the complainant] was consenting to intercourse. If the Crown satisfies you BRD that either one of (a) or (b) or (c) was the state of mind of the accused at the time of the act of intercourse, then the third element of the charge has been made out. If there is a reasonable possibility that the accused honestly believed on reasonable grounds that [the complainant] was consenting, then you would find this third element not made out, and return a verdict of 'not guilty' to this charge."
8. In his Summing-Up, the trial judge referred to this document and said: "If the Crown satisfies you beyond reasonable doubt that either one of (a), (b) or (c) was the state of mind of Mr Morgan at the time of the act, if you find the act proved, then the third element of the charge has been made out. If there is a reasonable possibility that the accused honestly believed on reasonable grounds [the complainant] was consenting then you would find this third element not made out and return a verdict of not guilty to this charge" (Summing-Up, p 18).
9. His Honour prefaced this by stating: "Importantly consent requires a perception of what is about to take place and the nature and character of what is about to occur. You have heard the submissions from the Crown, having regard [to] his age and his background. [The complainant] at the relevant time wasn't in a position to properly perceive what it was that was occurring and the nature and character of the act he alleges occurred in the course of that incident" (Summing-Up, p 17).
10. His Honour's description in the first sentence of what consent required accorded with the High Court's decision in Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74 (see particularly at 256-61 and see also Dean v Phung [2012] NSWCA 223 at [88]-[94]). It also accorded with the version of Watson & Purnell Criminal Law in New South Wales (1982, The Law Book Company Limited) current at the time of the offences (at [262M]).
11. Neither these, nor or any other parts of the Summing-Up, were challenged on appeal. Nor was any objection taken at trial to any presently relevant part of it. In particular, no challenge or objection was taken to subparagraph (b) of the written direction regarding knowledge (compare Castle v The Queen (2016) 92 NSWLR 17; [2016] NSWCCA 148 where a challenge was made to the trial judge's direction regarding recklessness in connection with the offences of kidnapping under s 86 of the Crimes Act).
12. On appeal, the applicant contended that the meaning of "reckless" in s 61D(2) was to be ascertained by reference to R v Morgan [1976] AC 182 at 209, 215, 225 and Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80. He submitted that these decisions required the Crown to demonstrate in the present case that the applicant engaged in the alleged conduct with the complainant "willy-nilly not caring whether the victim consent[ed] or not". R v Morgan included that state of mind in the concept of recklessness. Its inclusion was approved in Banditt at [27], [35] and [38] and confirmed in Castle v The Queen at [49]-[50].
13. Recklessness in this sense was referred to in the first part of subparagraph (b) of the trial judge's written directions to the jury concerning the applicant's knowledge (see [34] above). That subparagraph directed the jury to consider whether the applicant "simply failed to consider whether or not [the complainant] was consenting at all, and just went ahead with the act of sexual intercourse". The second part of subparagraph (b) continued: "even though the risk that [the complainant] was not consenting would have been obvious to someone with the accused's mental capacity if he had turned his mind to it."
14. As R A Hulme J pointed out in Castle at [118], this part of such a direction (which he called "the rider"): "provides a safeguard in favour of an accused if the facts be such that even if the question of consent had been considered it would not, or might not, have been apparent anyway [that there was a risk that the complainant was not consenting]." As inclusion of the rider therefore favoured the applicant (by limiting rather than expanding the circumstances in which he might be convicted) its addition could not reasonably have been the subject of objection by the applicant, and indeed no such objection was made.
15. In my view, the following matters lead to the conclusion that it was open to the jury (in the sense referred to in [30] above) to conclude that the Crown had established beyond reasonable doubt that the applicant was reckless in one or both of the respects to which the trial judge referred in his written directions (see [34] above).
16. First, it was open to the jury to conclude that the complainant's age (12 or 13) rendered it unlikely that he would want to engage in sexual activity with a man decades older than him (40 years of age), or indeed in any sexual activity. There was no evidence that the complainant had reached puberty or that the erection he had when running around the house resulted from sexual desire or stimulation (rather than being caused by the running or some other circumstance). Indeed, the complainant's unchallenged evidence was that he did not have "any knowledge of any sexual matters" at the time the conduct occurred (T 50). In particular, he did not know "anything about oral intercourse of any kind" (T 51). On the evidence, the applicant had no reason to think otherwise.
17. Secondly, that same unchallenged evidence of sexual ignorance indicated that the complainant did not know "the nature and character of what [was] about to occur". Such knowledge was necessary for him to be able to give effective consent. With the benefit of having seen and heard both the complainant and the applicant give evidence it was open to the jury to conclude beyond reasonable doubt that the applicant must have appreciated the complainant's lack of knowledge, or at least that there was a real possibility that the complainant lacked the relevant awareness.
18. Thirdly, the applicant was in a position of authority at the church which the complainant and his family attended and at which the complainant acted as an altar boy. Further the complainant, a relatively young boy, was alone on the property with the applicant. At the very least, this must have raised a real doubt in the applicant's mind as to whether the complainant was simply doing what the person in authority indicated that he should do or subject himself to, rather than truly consenting to the conduct. That is, the applicant must have had a real doubt as to whether the complainant was complying, not consenting.
19. On appeal, the applicant submitted that two aspects of what occurred contradicted this inference. First, the applicant referred to the complainant's evidence that, when the complainant returned to the house after bike riding, the applicant "tried to take [him] into the main bedroom". The complainant said he did not agree to that happening, to which the applicant replied "[o]kay we don't have to go into the bedroom". The applicant thereafter gave the complainant an alcoholic drink and engaged in the Count 2 sexual conduct.
20. Secondly, the applicant referred to the complainant's evidence that after the Count 2 conduct had occurred, and when the applicant exposed his erect penis, the applicant asked the complainant "Can you give me a hand with this?" to which the complainant said "No". The applicant submitted that these were "free and voluntary choices", made "immediately before, during and after the incident [the subject of Count 2] such that there was an insufficient basis from which it could be inferred that the applicant, if he had turned his mind to it, must have realised that the complainant was not consenting but continued in any case".
21. On the occasions referred to at [46] and [47] above the complainant appears to have had a real opportunity to decline to engage in the relevant conduct, and did so. That was not the case however in regard to the Count 2 conduct itself, with which the applicant proceeded without any explicit (nor it seems implicit) inquiry as to the complainant's attitude, and without foreshadowing what the applicant proposed. Therefore, the fact that the complainant did not express disagreement does not assist the applicant's submission that he did not carry on with the fellatio "willy-nilly". The complainant was simply not asked whether he consented to that conduct. Nor was there anything to indicate that the complainant understood the nature of that conduct, as opposed to submitting to it without the relevant awareness.
22. Thirdly and importantly, the applicant gave the complainant alcohol. The applicant must have known, and presumably intended, that alcohol would be likely to impair the complainant's judgment and diminish his willpower. It was open to the jury to conclude that the applicant did this to overcome any unwillingness of the complainant to participate in the applicant's conduct.
23. Fourthly, the applicant denied that the charged conduct occurred. Therefore he did not give evidence that might have assisted him in contending that the Crown failed to establish that he had been at least reckless as to the existence of consent on the complainant's part. This did not mean that he was precluded from contending on appeal that the Crown had not established this element of the offences. In light of the evidence led by the Crown however, and in the absence of evidence from the applicant as to his state of mind, it is in my view "mere speculation or conjecture", rather than a hypothesis available on the evidence (see Baden-Clay at [55]) to suggest that the applicant was not aware of at least a real possibility that the complainant was not consenting.
24. For these reasons Ground 2 should be rejected.

Ground 3: whether the verdict on Count 4 is consistent with the acquittal on Count 2 (assuming that Ground 1 or 2 is successful)

1. This ground does not arise as neither Ground 1 nor 2 has been successful. Accordingly, there is no need to address it.

Ground 1: whether the sentencing judge failed to properly assess the objective seriousness of the offending

1. In his sentencing judgment, the judge made the following findings relevant to the objective seriousness of the offences of which the applicant was convicted. "Each of the offences is serious, as indicated by the maximum penalties proscribes (sic) for them by the Parliament. The physical acts in respect of which the offender has been convicted do not amount to the worst type of conduct which might conceivably be caught by each of these offences. Each of the incidents was of relatively short duration. Additionally, there was neither violence nor threats accompanying the offender's conduct, save for the implicit threat which resides in the disparity between the offender and the victim in terms of age, size and authority. It is plain that the offending does not represent a spontaneous isolated incident. Not only were there two separate occasions of offending in respect of the present victim, the offending must be assessed also against the background of the offending against the victim AH. The offender is not here being sentenced for the latter offending for which he has already been sentenced, nor does that conduct aggravate the present offending. It does, however, serve to demonstrate that the present offending was not an isolated or one-off incident. The nature and degree of physical contact is significant in assessing the objective gravity of this type of offending. However, that assessment must necessarily be informed by far more than the mere physical parameters of the acts involved. [Offending] of this nature, even where a victim suffers no physical harm, is particularly apt to produce significant and long-standing psychological and emotional consequences. The community's awareness of the scope and depth of the enduring consequences of this type of offending is developing, particularly in light of the conduct of inquiries such as the Royal Commission presently running, inquiring into institutional responses to the sexual abuse of children. The potential harm that can reasonably be expected to flow from taking cynical sexual advantage of the vulnerability of a young person cannot be underestimated. It is reasonable also to expect the potential for subsequent and enduring harm in a broader psychological sense, not only for the child directly involved but also for those most closely responsible for the care of the child, in particular through the misplaced guilt that could reasonably be anticipated from having acceded to the child being where it could be taken advantage of in this particular way. It is difficult to concede that the offender had any motivation beyond his own sexual gratification. He pursued this object not in an isolated fashion but over an extended period without apparent regard to the victim's childhood, innocence and future. He did so in a blatant breach of the trust and authority which had been reposed in him. The victim impact statement tendered on sentence in the present case demonstrates that the offending has had profound, disturbing and substantial negative impacts upon the victim's psychological, emotional and social development and wellbeing. These are all consequences that one might reasonably expect would frequently result from this type of conduct. It reflects one of the many reasons this type of offending is so abhorrent. The offender was well capable of comprehending the victim's vulnerability. He also was well capable of comprehending the damage which his conduct had a significant potential to inflict. Despite all of this he deliberately pursued his sexual gratification by his conduct of clear abuse of his position of trust and authority. Notwithstanding the fact that this offending may fall far short of the worst examples of conduct which one might imagine as being caught by each of the offences the subject of the present exercise the offending is on any reasonable view very serious indeed, particularly in respect of Count 2" (T 4-7, 11/08/16).
2. These findings constituted a thorough examination of the evidence relevant to the objective seriousness of the offences. The applicant was not able to point to any matter of potential significance that the judge overlooked, nor to any matter that his Honour wrongly took into account. Rather, the applicant's submissions were to following effect.
3. First, he submitted that the sentencing judge failed to specify where on the spectrum of criminality the offending should be placed (see R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at [19]). In my view however, the judge did do this, at least implicitly (see Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]).
4. The sentencing judge referred to the offending as very serious indeed, particularly in respect of Count 2, although it fell "far short of the worst examples of conduct" which could constitute offences under the relevant sections. Taken in the context of his Honour's full remarks on objective seriousness, it is clear from these references that the judge regarded the criminality of the offences as somewhere in the mid-range. As these were not standard non-parole period offences, this approach sufficed.
5. Secondly, the applicant submitted that if the sentencing judge was to be understood as having assessed the offences as in the mid-range of objective seriousness, that assessment was not justified by the evidence.
6. This submission however encounters the hurdle of this Court's approach to interfering with assessments of objective seriousness. As Spigelman CJ stated in Mulato v R [2006] NSWCCA 282 at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself … " See also Sabongi v The Queen (2015) 249 A Crim R 167; [2015] NSWCCA 25 at [67]-[71].
7. Nevertheless, the applicant relied upon the following propositions to attempt to persuade this Court that the sentencing judge's assessment of objective seriousness was erroneous: 1. "Fellatio is at the lower end of seriousness relative to other forms of sexual intercourse such as anal penetration, which carries with it a high risk of injury and higher risk of transmission of disease". 2. "There was no violence, no coercion, the offending occurred over a relatively short period and there was no humiliation or degradation". 3. "The complainant was 12-13 years old which is half way between the statutory bracket (between 10-16)".
8. However the applicant did not contend that the sentencing judge committed specific error in the course of his assessment, or that his Honour's evaluative judgment was "unreasonable or plainly unjust" (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40). The matters to which the judge referred when assessing objective seriousness (see [53] above) indicate that his assessment was within the range of views reasonably open to him.
9. In these circumstances, this ground of appeal should be rejected.

Ground 2: whether the sentencing judge failed to correctly apply the historical sentencing practice for offences in the 1970's and 1980's to fix a non-parole period between one-third and one-half of the total sentence

1. The subject offences were committed between September 1982 and May 1984. The sentencing judge recognised that the applicant was to be sentenced consistently with sentencing practices prevailing at the date of his offences, including those relating to the imposition of a non-parole period (Magnuson v R [2013] NSWCCA 50 at [84]-[88]). His Honour noted that at the relevant time non-parole periods were customarily between one-third and one-half of the head sentence (see Wilson v R [2017] NSWCCA 41 at [36]-[37] and AJB v R [2007] NSWCCA 51 at [39]). His Honour then observed that at the relevant time, as now, it is necessary to ensure that "any non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice set against the objective gravity of the offending and in light of the offender's subjective circumstances" (at p 12). Taking these matters into account, his Honour fixed the non-parole period as one-half of the total sentence.
2. I do not consider that there was any error in his Honour so doing. First, his Honour did not have to adhere to the one-third to one-half range if he had reason to depart from it. Secondly, the non-parole period his Honour fixed was within that range, albeit at its top end. Finally, his Honour's decision was an evaluative one in respect of which the applicant has not demonstrated any specific error. Nor has the applicant demonstrated that it was "unreasonable or plainly unjust" (see House v The King). In these circumstances Ground 2 should be rejected.

Ground 3: whether the sentencing failed to correctly apply the principle of general deterrence in accordance with AJB [2007] NSWCCA 51

1. The sentencing judgment included the following observations on the question of general deterrence: "Among various objectives of sentencing in a case like the present general deterrence is frequently said to be of prime importance in making the community aware of the attitude of the Court to child sexual offences, and in particular to offending which involves a significant breach of positions of trust or authority. … As the law presently stands any sentence imposed for offending of this character must embrace an element of general deterrence no matter how long the particular offending may have gone undetected. This objective of sentencing is of particular importance where an offender was in a position of trust and authority in relation to a victim. There is a recognised need for sentences to be imposed which demonstrate clearly to potential offenders that if they are to yield to their sexual impulses towards children they will be met with punishment and denunciation which appropriately reflect the community's abhorrence of this criminality" (at p 9).
2. In support of this ground of appeal, the applicant relied upon the following observation of Howie J in AJB v R [2007] NSWCCA 51 at [39]: " … General deterrence was not a significant matter in the applicant's case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct."
3. The applicant concluded his written submissions by contending that the sentencing judge erred "by not tempering the weight or prominence to be given to the principle of general deterrence in the circumstances of this case" (at [5]).
4. There were however circumstances in AJB that enabled his Honour to take the view that general deterrence was not a significant matter in that case. These included that, when the offending of the applicant in that case was brought to light, he sought treatment and "completely reformed" (AJB at [29]). Indeed, Howie J described the case as "an unusual case" that was "in a category of its own" for this reason (ibid). Accordingly, AJB does not stand for a general proposition that general deterrence must be given reduced significance in cases such as the present.
5. Further, the applicant's submissions on this ground do not identify any specific error such as a failure to consider a relevant matter or the taking into account of an irrelevant matter. Thus, to have the judge's discretionary decision as to sentence overturned on appeal by reason of his Honour's approach to general deterrence, the applicant would have to persuade this Court that the way in which his Honour took general deterrence into account resulted in a sentence that was "unreasonable or plainly unjust" (House v The King).
6. In seeking to do so, it was insufficient for the applicant to merely contend that the judge placed too much weight on general deterrence. As Gageler J stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [53], a ground framed "only in terms of 'weight'" is incapable of establishing specific error of the kind warranting appellate intervention referred to in House v The King. Such an argument only "point[s] at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category" referred to in House v The King, namely that the sentence in the totality of the circumstances was unreasonable or plainly unjust (see Bugmy at [51]-[53]).
7. Further, as this Court has often repeated, it will not readily interfere with a sentencing judge's assessment of the weight to be given to a particular factor. For example, in Majid v R [2010] NSWCCA 121 Johnson J (with whom Simpson and McCallum JJ agreed) stated at [40]: "The second, third and fourth grounds of appeal complain that the sentencing Judge had given "insufficient weight" to different aspects of the Applicant's subjective case in passing sentence. In Stephens v R [2009] NSWCCA 240, Grove J (McClellan CJ at CL and RA Hulme J agreeing) observed at [16]-[18], that there are inherent problems in a ground expressed in that fashion succeeding, as the ground tacitly concedes that some weight had been placed upon the factor by the sentencing Judge. Circumstances in which matters of weight will justify intervention by this Court are narrowly confined, whether the proceeding is a Crown appeal or an offender's application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57]." See also Kennedy v R [2017] NSWCCA 193 at [64]-[67].
8. The applicant's submissions on this ground amount in essence to a complaint about the weight given by the sentencing judge to the issue of general deterrence. The applicant has not demonstrated that his Honour's approach to the issue was "unreasonable or plainly unjust". His Honour's remarks concerning general deterrence fell within the range of views that were open to his Honour to take. Having failed to establish circumstances that would justify intervention by this Court, the applicant's submissions on this ground must be rejected.

ORDERS

1. For the above reasons, the following orders should be made: 1. To the extent that the applicant challenges his convictions on grounds involving errors of law, dismiss the appeal. 2. To the extent that the applicant challenges his convictions on grounds not alleging errors of law alone, dismiss his application for leave to appeal against his convictions. 3. Dismiss the application for leave to appeal against sentence.
2. DAVIES J: I agree with Macfarlan JA.
3. BUTTON J: I agree with Macfarlan JA.

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