Morton v R

Court of Criminal Appeal (NSW)|2018-03-05|Before: Macfarlan JA, Johnson J, Campbell J, MacFarlan JA

Solicitors: Ross Hill & Associate Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/173442; 2016/173699 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 7 March 2017 Before: Ellis DCJ File Number(s): 2015/173442; 2016/173699

Judgment

MACFARLAN JA: On 7 March 2017 the applicant, Mitchel William Morton (also known as Mitchel William Lennard), was sentenced in the District Court in respect of three offences to which he had pleaded guilty. He received a total effective sentence of 12 years and 6 months to commence on 6 June 2016 and to conclude on 5 December 2028, with a total effective non-parole period of 8 years to expire on 5 June 2024. The total effective non-parole period represented 64% of the total effective head sentence.

Counts 1 and 2

CL is a female child who turned 5 years of age in February 2014. In early 2014 her mother met the applicant in a "singles" internet group to which she had described herself as a single mother looking to meet someone "decent and good with children". They began a relationship, with the applicant staying most nights at the mother's home. On 13 March 2014 the applicant said that he had to return to his home on the weekend and asked if he could take CL with him. Her mother agreed, resulting in the applicant taking CL by train to his home.
At the applicant's home, they watched television and had take-away food for dinner. After dinner they had a shower together, fully naked. After the shower, CL put on her pyjamas and the applicant put a towel around his waist. He told her to get on the bed and he took her pants off. He put his tongue inside her vulva (the first offence) and subsequently CL felt the applicant's erect penis against the outside of her vulva (the second offence).
When the applicant and CL returned to her home the following day, her mother noticed that she was quiet and, in the following days, behaved aggressively towards the applicant. On 23 March 2014 CL disclosed to her mother what had happened. The mother confronted the applicant and told him to leave. She made a complaint to the police the following day. The police interviewed CL on 26 March 2014. She said to them that the applicant told her not to tell anyone about what had occurred or he would be "gone forever".
The applicant was subsequently arrested and interviewed. In his ERISP, he agreed that the complainant had spent the night at his home but he denied the offences. He was released without charge. He had further involvement with the police on 11 April 2014 when he breached an AVO by going to CL's home.
On 28 March 2015 the police contacted the applicant who told them that he was in Victoria with his mother. Police advised him that he would be arrested when he returned to New South Wales. A Court Attendance Notice was served on the applicant when he attended Wyong police station. The date of service was not established by the evidence.

Count 3

JD is a male child who turned 6 years of age in early May 2016. He lived with his mother and twin brother. The applicant had known him and his family for about 4 years, having met them through JD's maternal uncle.
Prior to March 2016 the applicant visited JD's home regularly, although at times there were months between visits. In March 2016 he returned from the country to live in the vicinity of JD's home. During March and April 2016 he visited the home a number of times a day and from mid-April 2016 commenced to stay at the home on weekends. He offered to take the boys to sleep over at his house but their mother declined the offer. He regularly bought gifts for the boys including clothing, food and toys and in particular a $600 cubby house and a new bunk bed.
On 3 June 2016 he stayed at JD's home overnight. On the next day he took the boys to collect a PlayStation from his house. They returned to JD's house. The applicant set the PlayStation up in their bedroom and played video games with them for some time.
At one stage during the evening of that day, when he was alone in the bedroom with the boys, he said to JD that it was "time to go to bed". JD lay down on his bed and the applicant sucked on JD's penis for a short time. He then stopped and said to JD that what had happened was a secret and he should not tell his mother, otherwise the applicant would not be allowed to return to the home. Later that evening, while the applicant was out of the room, JD said to his mother "Mitchel sucked my doo doo". This was a phrase JD used to refer to his penis. JD's mother confronted the applicant and then asked him to leave.
On 6 June 2016 JD and his mother attended the local police station and JD participated in a recorded interview in which he told the interviewer that the applicant had sucked on his "doo doo" and said to him that it was meant to be a secret.
The next day the applicant was arrested by police. He participated in an interview and denied committing the offences.

The sentencing judgment

Having described the circumstances of the offences, the sentencing judge stated that he had considered what the High Court said in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 and would "impose discrete penalties to reflect the criminality of each of the counts in the indictment".
Later, his Honour made the following observations concerning the objective seriousness of the offences: "Much has been said during submissions in terms of where this matter lies in the range of offending against these provisions. All offences against these particular provisions are serious. In my view, it is a question of looking at all of the circumstances in order to assess where any particular offence may fall as compared to other offences within the same provision. In this case, having regard to the two separate incidents, I am satisfied beyond reasonable doubt that the offender, on entering into these relationships, then took steps to obtain access to these children and that then, when that access was gained, he breached the trust which had been extended to him by both of the mothers in order to satisfy his own sexual desires, without regard for the children or the breach of trust. It may be argued that each of these two s 66A offences does not quite get to the mid range of offending. I have concluded, though, when I look at all of the material and assess the total criminality, that that total criminality does fall within the mid range. In relation to the 61M, it is a serious example of indecent assault. I accept, on the other hand, that there are a number of factors which do not exist in this case which might aggravate it further, such as the absence of violence and that for each it was a one-off occasion, not repetitive offending. The total effective sentence that I am about to impose does, in my view, reflect my assessment of the total criminality of this man in relation to his offending against both of these young children."
His Honour made the following observations concerning the applicant's subjective circumstances.
First, his Honour noted that the applicant was now 28 years of age and had some prior criminal convictions, but none for sexual offences.
Secondly, his Honour noted references from the applicant's mother and stepfather, and that they were in court to support the applicant.
Thirdly, his Honour noted the contents of a psychological report dated 2 March 2017, which referred to the applicant's troubled childhood, relatively low level of intellectual functioning and mental health issues.
Fourthly, his Honour noted a report indicating that the applicant's mother has serious medical problems. His Honour also noted, that prior to being taken into custody, the applicant had been residing with his mother and stepfather and had been playing "a large role in the care of his mother".
Fifthly, his Honour noted that the applicant had not expressed remorse, although he had told the psychologist that he understood that the age of consent was 16 because committing sexual offences against young children was likely to "destroy their lives".
Sixthly, his Honour took into consideration the Victim Impact Statement prepared on behalf of JD as well as the statistics that were provided, noting the "proviso the Court of Criminal Appeal has said applies to the use of such statistical material".
In determining the appropriate sentences to be imposed, the sentencing judge took into account these objective and subjective matters, and the purposes of sentencing stated in s 3A of the Crimes (Sentencing Procedure) Act, including, as of particular significance to the case before him, general and specific deterrence.

Ground 1: assessment of objective criminality as mid-range

The applicant first submitted that the sentencing judge erred in assessing the objective seriousness of the offences "overall, rather than the objective criminality of each separate offence".
This submission must be rejected because, as noted at [23] above, the sentencing judge expressly referred to the High Court decision in Pearce, in which (at [45]) the obligation to "fix an appropriate sentence for each offence" was stated, and the sentencing judge said that he intended to "impose discrete penalties to reflect the criminality of each of the counts".
His Honour's subsequent observations concerning the objective seriousness of the offences do not indicate that he failed to consider the offences separately. Whilst at one point in those observations, his Honour referred to the "total criminality", it is clear from his references to "two separate incidents" and "each of these two s 66A offences" that he considered the criminality of these offences separately. The fact that his Honour referred to some common features of the two offences does not detract from that conclusion.
In addition, his Honour made particular reference to the s 61M offence in the sentence immediately following his assessment of each of the s 66A(2) offences. As the Crown submitted, "[i]f his Honour had intended to express an assessment of the offending overall this reference would have been superfluous."
The applicant next submitted that, contrary to the sentencing judge's assessment of the s 66A offences as "mid-range", they in fact lay below the "mid-range". The applicant pointed to the following features of the offences: "a. The events were relatively short in duration, b. They were offences of oral intercourse upon the victims as opposed to penile vaginal or penile anal connection, c. The offences did not require oral intercourse to be performed upon the offender by the victims d. The offences were discrete events as opposed to a course of conduct e. The children were not physically harmed and the offences were not accompanied by threats of violence or actual violence f. The offences did not include alcohol or drugs."
A difficulty that the applicant faces in advancing this submission is that this Court will only rarely interfere with a sentencing judge's assessment 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 or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour … "
In the same case, Simpson J agreed with these observations and added at [46]: "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge … "
For the following reasons given in the Crown's submissions, the sentencing judge's assessment of the objective seriousness of the offences as mid-range was well open to him: "As his Honour recognised, the nature of the intercourse, the short duration and the absence of violence are only one aspect of the assessment of objective seriousness in offences of this nature. In the case of both children, the applicant had fostered a relationship with the family and particularly with the children. It was this which enabled him to access the children and commit the offences. In the case of CL, he was able to have her stay with him overnight in a completely separate town from her mother. In the case of JD, his mother refused a similar request but he was still trusted to take the boys to his home during the day, and then spend time in the boys' bedroom and alone with them. In the case of CL, the child was extremely vulnerable given that she was 5 years old, and alone overnight away from her mother. The sentencing judge did not accept that the applicant's decision to offend arose spontaneously whilst he was having a shower with the child. In the case of JD, the offences were committed when the applicant had already been questioned with respect to the CL offences and advised that he was going to be charged."
The fact that the offences did not have some features that would, if they had been present, have rendered them more serious does not mean that the features of the offences did not render them serious offences, falling in the mid-range of objective seriousness. As the Crown's submissions indicated, the children's ages and the applicant's breaches of trust were particularly significant aspects of the offences.

Ground 2: manifest excess

Save for his Ground 1 contention, which I have rejected, the applicant did not submit that the sentencing judge committed any specific error in his sentencing. Thus, he did not allege that his Honour made any error of principle, took any irrelevant matters into account, overlooked any relevant considerations or was mistaken as to the facts.
In those circumstances, as the applicant recognised, he needed to establish that the sentences were "unreasonable or plainly unjust" in order to succeed on appeal (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]). It would not have been sufficient in this regard to persuade this Court that it "would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his … discretion" (ibid at [28]).
In support of this ground, the applicant first submitted that Judicial Commission of NSW statistics indicate that the applicant's overall sentence was within the top 40% of those imposed in respect of similar offences. Even if the applicant had been able to overcome the difficulty that statistical tables and charts relating to sentences previously imposed are of limited utility because they say "nothing about why sentences were fixed as they were" (Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]), the statistics do not support this ground of appeal. As the Crown submissions pointed out, the applicant appeared to compare the overall sentence imposed on the applicant with statistics recording sentences imposed in other cases for individual s 66A(2) offences. On the Crown's calculations, when regard is had, for example, to the 9 year sentence in respect of the applicant's s 66A(2) offence, "between July 2009 and June 2016, 43% [of other offenders] received a higher head sentence and 45% received a lower head sentence (with 12% receiving [the same period of] 9 years)". The statistics are thus far from suggesting that the applicant's sentences for his mid-range offences were unreasonable or plainly unjust.
Next, the applicant relied upon a Public Defenders' sentencing schedule describing cases in which sentences were imposed for offences under s 66A(2). In oral argument, the applicant accepted that only 10 cases in the schedule provided possible support for the applicant's argument, as only those cases dealt with offences for which the maximum penalty was imprisonment for life, as with the applicant's offence.
Many of these cases were referred to by McCallum J in R v BA [2014] NSWCCA 148. As is appropriate (see Hili at [53]), I have had regard to the sentences imposed in the cases, and others in the schedule, but in my view none suggest that those imposed in the present case were unreasonable or plainly unjust. Understandably, the significantly different facts in those cases were reflected in significantly different sentences to those imposed in the present case. In some of the cases substantially longer sentences were imposed. For example, in Leslie v R [2013] NSWCCA 48; (2013) 227 A Crim R 116 where two s 66A(2) offences followed the kidnapping of an 8 year old girl, the offender was re-sentenced by this Court to terms of imprisonment for 15 years with a non-parole period of 10 years and for 17 years with a non-parole period of 11 years, accumulated by 1 year. Similarly, in JL v R [2014] NSWCCA 130 this Court dismissed an appeal against an aggregate sentence of imprisonment for 18 years, with a non-parole period of 13 years and 6 months, imposed in respect of 21 sexual offences committed by the offender against his 7 year old daughter.
I do not consider that the cases to which the Court has been referred establish that there is a relevant range of appropriate sentences, much less a range outside which the applicant's sentences fall. Even if I had concluded otherwise, that would not of itself have indicated that the applicant's sentences were unreasonable or plainly unjust (Hili at [54]).
Bearing in mind the applicable maximum penalties and standard non-parole periods, the importance in this case of both general and specific deterrence, the very tender ages of the children involved, the serious breaches of trust involved in the offences and the applicant's lack of any unusually compelling subjective circumstances, I consider that the contention that the sentences were manifestly excessive should be rejected.

Order

For the reasons I have given, I propose that the application for leave to appeal be dismissed.
JOHNSON J: I agree with Macfarlan JA.
CAMPBELL J: I agree with Macfarlan JA.

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