Morris v The Queen [2016] VSCA 331

1 The appellant[1] pleaded guilty in the County Court to a series of sex offences, which he committed against six different children, and was sentenced on 3 March 2016[2] as follows:

Indecent assault of a person under the age of 16[3]

Sentenced as a serious sexual offender pursuant to s 6F Sentencing Act 1991 on charges 3 to 6.

Life reporting pursuant to Sex Offenders Registration Act 2004.

Forensic sample order made as per s 464ZF Crimes Act 1958.

2 He now appeals by leave against sentence on the ground that the individual sentences, orders for cumulation, total effective sentence and non-parole period are each manifestly excessive. For reasons which follow, we would dismiss the appeal.

3 The appellant was a primary school teacher. The offending occurred in the period 1971 to 1977. All of the victims were pupils at schools where he was teaching. The appellant was aged between 25 and 32 in this period. The following descriptions of the offending and of its impacts on the victims are largely based on the agreed prosecution opening and on the unchallenged factual observations of the sentencing judge.

4 Charge 1 related to offending against Victim A.[4] It was a representative charge of five occasions occurring between 1971 and 1973. The appellant was A's homeroom teacher for two of those years. A was between six and nine years of age. Three occasions were outlined in the Prosecution Opening.

5 Occasion 1 involved the appellant seating himself next to A on the pretext of seeing what A was working on. The appellant asked 'Do you play with yourself?' and A recalled that the appellant may have used the word 'penis' or similar. A responded that he had. He recalls that his penis was out of his pants, with the appellant then masturbating him. A felt scared and said words to the effect of 'Oh, someone will see.' The appellant responded, 'Don't worry about it they will not see anything', 'Do you like that?' and further, '[This] is our secret'. The appellant said that, if A told anyone, he would be in trouble.

6 Occasion 2 involved the appellant asking A to stay back after class. The appellant was seated at his desk at the front of the classroom. A stood next to the appellant's desk and the appellant told him to unzip the appellant's pants. A did so and the appellant placed A's hand into his pants, directing A to move his hand up and down on the appellant's penis. The appellant became frustrated and agitated as A could not perform this act as he wanted.

7 Occasion 3 occurred when A and a friend informed the appellant that one of the urinals was running. The appellant told A to help him fix it, and told the friend to stay behind in the classroom. Once A and the appellant were in the toilets, the appellant said 'Do you want to see what you play with?' and took A into a cubicle. Once inside the cubicle, the appellant stood with his back against the door and said 'Do you want to see what you have been playing with?' while undoing his pants. A became frightened and said 'No', pushing past to open the door. The appellant did up his pants and followed A out of the bathroom.

8 Charge 2 related to victim B. It was a representative charge of five occasions. The offending took place in 1975, when B was between eight and nine years old. Three occasions were described in the prosecution opening.

9 Occasion 1 involved the appellant sitting next to B on a bus ride back from a swimming lesson. The appellant rubbed B's penis with his hand on the outside of B's clothing. B got an erection and the appellant asked, 'Does that feel good?'.

10 Occasion 2 took place one lunchtime when the appellant approached B at a set of large tractor tyres at the end of the school oval. The appellant struck up a conversation with B and stood on his right side, rubbing B's penis on the outside of his clothing.

11 Occasion 3 took place during lunchtime when the appellant approached B behind the school shelter sheds on the school boundary. The appellant rubbed his hands on B's penis on the outside of his clothing.

12 Charge 3 related to victim C. The appellant was C's teacher in 1975 when C was seven years old. Charge 3 was a representative charge involving five occasions. Four occasions were outlined in the prosecution opening.

13 Occasion 1 involved the appellant asking C to read in the front of the class. The appellant was seated at a chair in front of the blackboard and sat C on his left knee, while holding the large book with his right hand in front of him. Whilst C was reading, the appellant undid his pants with his left hand and masturbated C's penis skin-on-skin. The book obscured what was happening from the view of the rest of the class. After 15 minutes the appellant did up C's pants before returning him to his seat.

14 Occasions 2 and 3 similarly involved the appellant masturbating C's penis whilst he was reading in front of the class.

15 Occasion 4 occurred when the appellant kept C back after class to write lines on the blackboard as a form of punishment. The appellant was seated at a chair behind his desk and called C over and directed him to sit on his knee and read a book. C did so and, while he was sitting on the appellant's knee the appellant undid C's pants and masturbated his penis.

16 Charge 4 related to victim D. The appellant was D's teacher in 1976. D was approximately 11 years old. Charge 4 was a representative charge of two occasions.

17 Occasion 1 again involved the appellant asking D to read a book at the front of class. The appellant asked D to sit on his knee and read the book. He began touching D's leg with his hand. The appellant then rubbed D's penis on the outside of his clothing. D pushed the appellant's hand away. The desk again obstructed the view of the class.

18 Occasion 2 again involved the appellant seating D on his knee to read a book to the class and the appellant rubbing D's penis with his hand on the outside of his clothing.

19 Charge 5 related to victim E. The appellant was E's grade teacher in 1977. E was between nine and 10 years of age. Charge 5 was representative of three occasions.

20 Occasion 1 occurred during a 'bring your pet to school' week. E found a stray cat and brought it to the appellant, who was in his portable classroom correcting work. The appellant got up from his desk and shut the door. The appellant made E sit on his knee, under the pretence of showing him how to hold the cat properly. The appellant fondled E's penis and testicles and E got an erection. The appellant told E that his spelling and English were below standard and that, unless E did what he was about to show him, he would tell the relevant teacher, who would fail E. The appellant threatened that E would be kept in Grade 4.

21 Occasion 2 occurred during a time that the appellant umpired games of football involving students. One afternoon after a game he was in his portable classroom with the students who had played. He announced E as the best player and requested that he sit on his knee. The appellant was seated at his desk. The appellant then fondled E's penis and testicles over his clothes. E got an erection. The desk hid this from the other students.

22 Occasion 3 occurred when E was late for school because of a doctor's appointment. Prior to lunch time, the appellant requested that E sit on his knee at the front of the class and read out his homework. The appellant fondled E's penis and testicles over his clothing with his hand as E read. E got an erection and found it difficult to read.

23 Charge 6 related to victim F. F was also in the appellant's class in 1977. F was between 11 and 12 years old. Charge 6 was representative of five occasions. Three occasions were outlined in the prosecution opening.

24 Occasion 1 involved the appellant asking F to sit on his knee at the teacher's desk whilst the class was full of students. The appellant grabbed F's left hand and forced it onto his penis inside his trousers. The appellant asked F to move his hand up and down on his penis. F attempted to pull his hand out but the appellant told F that he would fail him. F masturbated the appellant out of fear. The appellant then put his hand down F's pants and moved his hand up and down on F's penis. After 10 minutes, the appellant gave F his mark and told him to sit back down.

25 Occasion 2 occurred when the appellant was on lunchtime yard duty. The appellant sat next to F on a bench behind the shelter sheds as he ate his lunch. The appellant grabbed F's hand and put it down his pants. F masturbated the appellant. When the appellant's penis became erect, he then put his hands down F's pants and masturbated him.

26 Occasion 3 occurred whilst the appellant was volunteering at a school camp. The appellant made F sleep in a single bed next to him in the corner of the hall. During the night the appellant knelt beside F's bed. The appellant stroked F's legs and tickled his testicles (uncharged act), whilst masturbating himself (uncharged act) and making moaning noises. The appellant zipped up F's sleeping bag and went back to bed.

27 On 29 January 2009, E came forward to police and made a statement in relation to matters said to have occurred against him as a young child at the hands of the appellant. This was the first complaint. Shortly afterwards B came forward to police independently and made a statement.

28 The appellant was arrested and interviewed on 22 June 2009, making no admissions during the course of the interview. A decision was taken at that stage that briefs were not authorised.

29 Three years later, A came forward to police and made a statement. This prompted a second interview of the appellant on 10 August 2012. Again, no admissions were made, and the brief was not proceeded with at the time.

30 In approximately mid-2013, the informant began canvassing names and seeking assistance of those who might be witnesses. This led the informant to F in 2013 and, ultimately, to D and C in 2015.

31 The accused was charged on 29 January 2015 and extradited from the ACT to Victoria on 5 August 2015.

32 At the time of the appellant's sentencing, A was a 51-year-old father of three sons. The offending wrongly caused him to feel that he was somehow to blame. Feelings of guilt, shame and distress remained with him as he stayed silent. This affected him year after year. He visited psychologists over the years. They helped him to try not to allow the offending to dominate his life, but this was no easy achievement. He remains hypervigilant and suspicious of the intent of other males around his sons. This causes marital difficulties but he cannot help it.[5]

33 The impact of the offending on B was aptly described by the sentencing judge as 'dreadful'. B's mental health became fragile and he took antidepressants. B attempted to commit suicide as recently as Christmas 2012. B's marriages were badly affected and it was only in 2007 that he openly identified as a gay man. This was another period of emotional turmoil for him. His relationships with his children were adversely affected and he still has flashbacks of the abuse. He considers that the appellant stole his childhood and that what occurred still affects him as an adult.[6]

34 C considers that the appellant upended his capacity to gain a complete education. He had wanted to learn at school and have a career as a police officer, but instead left school as soon as he could. C endured panic attacks, abused alcohol and felt angry and bitter. Keeping the offending a secret from his family had been terribly hard for him. He has suffered from depression for many years.[7]

35 There was no victim impact statement by or on behalf of D.

36 E remembers that when the appellant fondled him he felt dirty, contaminated and in need of cleansing. He developed a debilitating obsessive compulsive disorder, needing to wash over and over and to throw away clothes as he felt that they were contaminated. His treatment over the years led to the conclusion that his obsessive compulsive disorder and post-traumatic stress disorder were linked to the sexual abuse. E is now unable to live with anyone other than his elderly parents and as a result he lives with them. He is unable to work and is now on a pension. He has to pay large bills for the water he uses to clean and to replace the clothes that he throws out as a result of his obsessive compulsive disorder.[8]

37 F was unable to write his own Victim Impact Statement. His carer provided one on his behalf. F has been on an invalid pension for the last 15 years. The sexual offending has haunted him since it occurred. It was the root cause of his agoraphobia, anxiety and depression. F's depression is said to get to the point where, on an irregular basis, he 'turns to drink and seriously writes himself off'. F has recently been in intensive care for eight days and in the general hospital for a further four days. This was the second time that he has been in intensive care with oesophageal bleeding. His carer is trying to break F's cycle of anxiety and depression which leads to excessive drinking.[9]

38 In assessing the gravity of the offending, the judge said:

your offending was serious, and abhorrent to any fair minded member of our community. What makes your crime so serious are the obvious factors:

(1) The comprehensive abuse of trust. You as a primary school teacher were entrusted to look after the children in your class and care and, as is necessary, you were left as the only adult with the children for long periods.

(2) The very young age of the victims is particularly concerning, revealing your frank paedophilic perversion at the time.

(3) The duration and repeated nature of the way you [offended], a new victim it seems for each year as the class groups moved on.

(4) The way you would use the pretence of having a child read to the class, or read while you masturbated the child. It is a particularly concerning example of the humiliation and abuse of power that often comes with entrenched sexual abuse.

(5) The use in some instances of threats, that is threats to fail the child, keep the child down, or that the victim would be in trouble if they told, were all designed to hide your crimes and to make it more likely that the abuse could continue.[10]

39 For these reasons, his Honour said, the appellant's moral culpability was 'particularly high':

You as a teacher, as an intelligent man, must have known what you were doing was wrong. You simply put your perverse sexual or other gratifications above what was decent and the proper thing to do. The proper thing to do was to look after vulnerable children not abuse them.[11]

After your teaching career was over, you joined the Commonwealth Public Service, where you had a solid career in Melbourne and in the ACT. After retiring or being made redundant from the Commonwealth Public Service in 2001, you took up teaching of international students in Sydney, then in China. You retired from the workforce in 2008.

You were married in 1982. Your wife had two children from a previous relationship, but you raised them as your own. However, when they left the home you and your wife acknowledged the relationship was moribund and you separated in 1998. After that you acknowledged your homosexuality, a matter that you had sensed but repressed for many years.

You met your current partner in China in 2006 and assisted in his migration to Australia. You lived together in the ACT and he remains supportive. You have a keen interest in amateur theatre in the ACT.[12]

41 His Honour noted that in 1980 the appellant pleaded guilty to a charge of indecent assault of a male under the age of 16. That matter, for which the appellant was sentenced to probation, related to conduct which occurred in 1979. His Honour said the circumstances were very similar to those of the crimes at hand. While that matter was not a prior conviction, his Honour said, it was of course relevant.[13]

42 The learned judge further noted that the appellant:

(a) had no mental health problems and was quite healthy, aside from the reasonably common Western ailments of elevated cholesterol, osteoarthritis and gastric reflux, all matters dealt with by medication;[14] and

(b) was understandably anxious about the prospects of imprisonment and how his partner would manage without him. Imprisonment would have the added burden of the appellant being in another State away from his home.[15]

43 The judge accepted the various matters relied on in mitigation. The early plea of guilty had relieved the victims of the 'added and significant trauma of a trial', and 'their childhood experiences were not challenged'.[16] It was also evidence of remorse and an acceptance of responsibility for criminal conduct occurring over 40 years earlier.[17] The appellant's partner and friends had attested to his remorse.[18]

44 The judge accepted that the appellant had been law-abiding for many years and, through work, had made a contribution to the community.[19] He was unlikely to reoffend, given his supportive partner, his stability and the length of time that had passed since the offending. The judge also accepted the opinion of Mr Cummins, psychologist, that the appellant was in the low risk category for sexual offending.[20] As these matters allowed for the full rehabilitation of the appellant, specific deterrence and protection of the community were not matters of concern.[21]

45 Nevertheless, his Honour said, denunciation and general deterrence remained prominent sentencing considerations. Relying on Boulton v The Queen,[22] the appellant's counsel had submitted that a CCO with onerous conditions - or, at worst, combined with some incarceration - would be appropriate.[23] His Honour concluded that only a term of imprisonment could properly and justly satisfy the sentencing purposes of denunciation and deterrence, mindful as he was of the appellant's rehabilitation.[24]

I have said I hope plainly enough that for right minded members of our community your sexual abuse of children in the class room and in the yard, on the bus and at the school camp is bewildering and sickening. It must be denounced, not only in words of condemnation but in the practical way that your liberty is to be taken from you as punishment for the wrong and the harm caused. Also I must, with the sentence I impose, endeavour to deter others. The message must be unequivocal, if you enter the dark realm of sexual abuse of children, then imprisonment for a long time awaits.[25]

47 The learned judge indicated that he was mindful that, at the time of the offending, the maximum sentence for each charge was five years' imprisonment. In that regard, his Honour said that he would apply the principles stated by this Court in Stalio v The Queen[26] concerning offences from decades ago.[27]

48 His Honour noted that each of the six charges was representative of multiple incidents. This was taken into account, he said, not as an aggravating circumstance, but in order to appreciate the full circumstances of the offending and to ensure that the punishment was proportionate to the offending.[28]

49 Because s 6E of the Sentencing Act 1991 was engaged, cumulation needed to be considered in relation to charges 3 to 6. His Honour said that he had not ordered complete cumulation because to do so would be to depart from consistency in sentencing and to impose a crushing sentence.[29]

50 The sole ground of appeal contends that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.[30] The issue raised by that ground is whether the sentence arrived at was reasonably open to the sentencing judge in the circumstances of the case.[31]

51 As Redlich and Priest JJA said in McPhee v The Queen:

Every single human situation is unique, and the sentencing judge's instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences.[32]

52 The appellant did not submit that there was any internal inconsistency or disparity as between the individual sentences imposed. In our view, it was well open to the sentencing judge to impose the sentences which he did. We respectfully agree with his Honour's assessment of the gravity of the offending and of the appellant's culpability. His Honour was also right to treat as of great significance the severe, lifelong impact of the offending on at least five of the six victims. Each has suffered greatly as a result of the appellant's selfish and cynical pursuit of his own sexual gratification.

53 Two features of the appellant's conduct deserve particular condemnation, in our view. The first is his technique (in the case of victims C, D, E and F) of having the selected victim sit on his knee, for the purpose of reading aloud to the class or a similar purpose, and then using the 'cover' of this activity to assault the victim. It is difficult to comprehend the fear, humiliation and confusion which the victim in each instance must have felt, powerless either to prevent the conduct or to protest against it.

54 The second - in the case of victims A, E and F - is the appellant's use of his authority as a teacher to threaten the victim with serious repercussions if he disclosed the offending or refused to comply with the appellant's demands. In both respects, the conduct was despicable. It constituted a reprehensible abuse of power in relation to highly vulnerable victims.

55 We were referred to certain authorities which were said to show that these sentences were outside the range.[33] However, as the respondent submitted, each of the cases relied on is distinguishable. Two of the five cases cited by the appellant were Crown appeals against sentence, which accordingly raised issues of double jeopardy which do not apply in the present case.[34] The charges in at least another two of these cases were of individual acts and were not representative charges.[35] More broadly, the nature of the offending and the personal circumstances of the offender relevantly differed from the present circumstances in various ways. To give just one example, significant ill health was relied on as a mitigating factor in more than one case.[36]

56 Further, we would not accept that the (relatively few) cases relied on by the appellant provide a 'sentencing pattern' for the present offences.[37]

57 Much emphasis was laid on the fact that these were offences committed decades ago. But the judge paid careful attention to the applicable maximum penalty of five years' imprisonment and, as we have noted, expressly applied the principles articulated in Stalio v The Queen[38] for dealing with offences from decades ago.

58 In our view, the sentences imposed can be seen to be reflective both of the seriousness of the offending and of the mitigating factors on which the appellant was able to rely. None of the decisions relied on suggests otherwise.

59 Supplementary submissions were provided in relation to the Court's recent decision in Buckley v The Queen.[39] That case also concerned serious sexual abuse of students by their teacher. As the appellant's supplementary submission pointed out, the indecent assaults in that case which attracted sentences of longer than two years involved acts of penetration. But, while that circumstance is properly viewed as a signifier of offence seriousness, we do not view the appellant's offending as significantly less serious, for the following reasons.

60 First, the physical act is not to be viewed in isolation from the circumstances in which it occurs. The particularly reprehensible aspects of the present appellant's conduct had no parallel in Buckley. Secondly, and in any event, it is a grave thing to assault a young boy by exposing his penis and masturbating him. It is equally grave to insist on being masturbated. While not penetrative, each such act is a serious invasion of the victim's bodily integrity and autonomy.

61 Second, the child victims in the present case were, in most cases, considerably younger than the victims in Buckley.

62 Finally, Buckley involved no representative charges. In the present case, by contrast, all six charges were representative charges. Each charge encompassed multiple, separate, acts of abuse against the particular child.

63 For these reasons, the appeal must be dismissed.

[2] DPP v Morris [2016] VCC 409 ('Reasons').