Morrison v R

Judgment 1HOEBEN CJ at CL: Offences and sentence On 8 August 2012 the applicant pleaded not guilty to all counts on an indictment containing 20 counts. On counts 1 and 2 she was jointly charged with her partner, Mervyn Ferry. Those charges were: Count 1 - That they detained JA for advantage between 1 May 2007 and 30 August 2009 in circumstances of special aggravation, contrary to s83(3) of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment; and Count 2 - That they detained NB for advantage between 1 February 2010 and 10 August 2010 in circumstances of special aggravation, contrary to s83(3) of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment. 2The circumstances of special aggravation within s83(3) of the Crimes Act 1900 were that the offenders acted together to commit the offences and secondly that they caused actual bodily harm to each victim. Counts 3, 5, 7, 8, 9 and 10 were charges of assault occasioning actual bodily harm upon JA, contrary to s59(1) of the Crimes Act 1900 charged in the alternative to Count 1 against the applicant and Counts 12, 14, 16, 19 and 20 were various assaults upon NB charged contrary to either s61 or s59(1) of the Crimes Act 1900 in the alternative to Count 2 against the applicant. At the end of the Crown case, Counts 11 and 13 were the subject of verdicts by direction. 3On 17 October 2012 the jury returned verdicts of guilty on Counts 1 and 2 against both the applicant and her co-offender in full satisfaction of the indictment. 4On 17 May 2013 the applicant was sentenced to an effective sentence of 13 years imprisonment with a non-parole period of 9 years commencing on 27 August 2010 and expiring 26 August 2019. The balance of term expired on 26 August 2023. This effective sentence comprised the following two sentences: Count 1 - A non-parole period of 7 years commencing 27 August 2010 and expiring 26 August 2017 with a balance of term of 4 years expiring 26 August 2021. Count 2 - A non-parole period of 7 years imprisonment commencing 27 August 2012 and expiring 26 August 2019 with a balance of term of 4 years expiring 26 August 2023. 5The applicant seeks leave pursuant to s5(1)(c) of the Criminal Appeal Act 1912 to appeal the total sentence imposed on her by Judge Zahra SC in the Sydney District Court on 17 May 2013 on the following grounds: Ground 1 - The sentence imposed is manifestly excessive. Ground 2 - The partial accumulation of 2 years of Count 2 and Count 1 was manifestly excessive infringing the totality principle. Factual Background 6The trial in this matter proceeded from 8 August 2012 until 17 October 2012. In the proceedings on sentence, the Crown tendered without objection a 30 page document comprising a summary of the evidence at trial. The sentencing judge set out the findings of fact upon which the applicant was to be sentenced in some detail in his remarks on sentence at 3-21. 7In summary, the Crown case was that the applicant and her partner acted together during two separate time periods to detain two young men for the advantage of exercising psychological control over them. During the periods of their respective detentions, they caused actual bodily harm to each of the victims. 8The background to the offences is that the two victims JA (born in 1988) and NB (born in 1984) were friends with the older daughters of the applicant. JA resided with the applicant and her partner from April 2007 until 28 August 2009 and NB resided with the applicant and her partner between 1 February and 10 August 2010. Both victims gave evidence that while residing with the applicant and her partner, they were subjected to ongoing physical and mental abuse of various kinds. They were subjected to regular violence, threats, starvation and other mistreatment to compel them to support the daily running of the house and to remain living there. The applicant and her partner were able to overwhelm the victims and exercise full psychological control over them, such that the victims were virtually enslaved. 9No useful purpose would be served by setting out in detail what each of the victims was subjected to. Suffice it to say that the details concerning JA are set out in the sentence judgment at [3] - [10] and those concerning the victim NB, at [11] - [20]. I incorporate those details into this judgment. 10JA came under the influence of the applicant and her partner in April 2007 when he was aged 18. At this time he weighed about 70 kilograms. Over a period of time his savings account Access Card and PIN number were removed from him and he lost financial independence. The physical conditions under which he was living gradually deteriorated. From approximately September 2007 he commenced to be subjected to physical assaults from both the applicant and her partner. 11On many occasions he was assaulted up to ten times per day. JA said that over time the portions of food he was given reduced and the applicant told him he was not allowed to eat unless he had finished all the chores in the house allocated to him. He said that he did not ask for more food because he was scared. Similarly when asked why he did not use a telephone to contact his family he said that he did not do so because he was scared of both offenders. JA said that over time he continued to miss Centrelink interviews because of his injuries and when he did attend the Centrelink office, he was accompanied by the applicant or her partner. 12Towards the end of his time at the applicant's residence JA was compelled to make false admissions of wrongdoing, both orally and in writing. The circumstances of JA leaving those premises in August of 2009 were that he had received a severe beating from the applicant's partner and another male after which he was then taken by the applicant's partner to a refuge. His belongings were placed in a shopping trolley with him. 13At the refuge, JA told his story and the police were contacted. JA was then taken to Bathurst Hospital where he was interviewed by police and a number of photographs were taken. The photographs were in evidence at trial and in the appeal. They show open wounds, malnutrition and the indicia of JA having received a severe beating. He weighed 45kgs at the time. 14JA suffered injuries to both his ears so that surgery was required. One of his ears will remain permanently disfigured. There were injuries and cuts to a hand as a result of being struck with a breadknife and a metal bar. There were injuries to his lip, nose and face as a result of being frequently struck in those places. There were injuries to his legs and knees, resulting in swelling and pain that restricted his movement. These injuries were due to being hit with implements and kicked. Generally, his body was severely bruised and abrased and the damage to two of his teeth was such that they had to be removed. 15NB was aged 26 when he commenced living with the applicant and her partner in February 2010. He weighed 56kgs at the time. He was subjected to similar treatment to that experienced by JA, except that the beatings which he endured were more severe and there were elements of what could only be characterised as sadism in the way in which he was treated. He was so overborne by the mistreatment which he received that he was prepared to admit, both orally and in writing, to wrongdoing which he had not committed. On 9 August 2010 the applicant's partner accused him of "perving" on one of the applicant's daughters and severely beat him. Somewhat bizarrely, NB was then taken by the applicant's partner to the nearest police station where he was falsely accused of being a paedophile in relation to his conduct towards the young children who were residing in the house. 16At that time police observed that he had a number of severe injuries, appeared unkempt and smelt of faeces and urine from sleeping in the children's cubbyhouse without access to toilet facilities. He was carrying the handwritten false confessions that the applicant had compelled him to sign. The police officers were so concerned about NB's condition that they called an ambulance and he was taken to Bathurst Hospital where he remained for over four weeks. At the time he was admitted to the hospital, he weighed 43kgs. Photographs taken of him at the time show serious physical injuries and severe malnutrition. 17The injuries diagnosed included injuries to both his ears, with the left ear being deformed. There were multiple fractures to the facial bones, including his nose, eye socket and lower jaw. There were multiple rib fractures (14 fractures to 10 ribs) and multiple fractures of his lumbar spine. Some of the fractures to his ribs were old (more than 3 months old) and some were in the process of healing (3-6 weeks old). Others were recent (2-4 weeks old). There were soft tissue injuries across his back and shoulders and internal injuries to his lungs. There was bruising to both eyes, cuts to his eyebrow and cuts to his nasal bridge. There were injuries to both legs and knees resulting in swelling, pain and restriction of movement. Both eyes were infected. 18As well as physical coercion, the applicant and her partner exerted psychological control over the two victims in the following ways: