R v Morris

Agreed Facts

1. Morris was not allowed to be in the company of any person under the age of 18: Sequence 1. He was not to communicate with any person under the age of 18.

Sequence 2

1. During the period December 2023 to January 2024 Morris gave the child vapes. He also requested the child send to him photographs in exchange for money, takeaway food and other gifts. In response to the first request, the child sent Morris a picture of his penis. After the photograph was sent, Morris drove to the child's family home and gave him $100. Morris asked the child via text for more such photographs about once a week. The child refused.
2. Later, Morris requested that the child send a picture of his abdominals. The child sent such a photograph. On the next occasion, Morris asked him to send a picture of his buttocks. In response the child asked for a phone. He took a photograph of his buttocks and sent that photograph to the offender. The offender asked for another photograph of the child's penis. Ultimately, the child re-sent the first picture he had sent. Other texts from the offender requested sexual activity. The child responded "no".
3. By late December 2023, the child's mother began to notice things that disturbed her. She accessed her son's phone and saw things which, understandably, disturbed her. The Agreed Facts set out examples of the of text messages that had been exchanged between Morris and the child.
4. Morris gave the child: PlayStation gift cards, vapes, money, takeaway food, lollies and drinks.
5. There was a police investigation. The police accessed three mobile phones seized from the offender. Matters supporting the police investigation and the giving of gifts were found. The offender was then charged with contravention of the prohibition order.
6. A forensic examination of his devices recovered the photographs and the text messages, including requests to engage in a sexual act as noted above. The examination revealed 74 communications between Morris and the child between 15 December 2023 and 10 January 2024. These matters are Form 1 to Sequence 2 contravention matters: Child Protection (Offenders Prohibition Orders) Act, s 13(1). These actions constituted the offending charged as Sequences 7 and 8.
7. The material on the offender's phone involved possession of child abuse material. It also resulted in a charge, Sequence 9, which has been placed on a Form 1 attaching to Sequence 8: Crimes Act 1900 (NSW), s 91H(2).
8. Police attended the child's residence in January 2024. Until then he had been unaware of the investigation. He broke down. Later, on 17 January 2024, he did an interview with police.

Guilty pleas

1. When the matter was before the Local Court the offender admitted his guilt. The offender's guilty pleas must be taken into account. The utilitarian value of the plea is important. I am required to reduce the otherwise appropriate sentences by 25%. There must be accumulation as part of the aggregate sentence I propose to impose. I need to take care that the process of accumulation, not erode that benefit It is also important to note that the guilty pleas meant that the child was not re-traumatised by coming to court and repeating what occurred: R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3].

The Form 1s

1. There are matters to be taken into account on Form 1 in relation both offences. The two contraventions on the Form 1 for Sequence 2, while part of the same course of conduct as that in the matter for sentence, go beyond the matter for sentence. In accordance with the guideline judgment this means that greater weight needs to be given to aspects relating to personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115 at [39]-[42].
2. The produce child abuse material offence also has a Form 1 attached to it. It relates to the product of the principal offence. If prosecuted separately it would have added little to the aggregate sentence. It would have been dealt with concurrently. It does not add to the sentence in the way referred to in the guideline judgment, other than for me to note that, obviously, keeping the material made it available to the offender for his prurient purposes. But that was the purpose for committing the offence in the first place. It must be taken into account, but I take care not to double count that matter.

Objective seriousness

1. A judge has an obligation to identify all factors relevant to the sentence, discuss their significance and make value judgments about the appropriate penalty. The sentence must be proportionate to what was done. That requires some assessment of the objective seriousness of each offence. They set some of the parameters for the appropriate sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J).
2. All of the conduct here involved deliberate disobedience of a court order. The offending in breach of the court order not only led to the commission of further offences which the order was designed to prevent, but it undermined the authority of the courts and the protection of children inherent in the court orders: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [132]; Pearce v The Queen [1998] HCA 37; (1998) 194 CLR 610.
3. The grooming offence was between a mature adult and a child. The age of the child is relevant. The nature of the conduct is particularly relevant. Importantly here, this was a secret crime. It was hidden from those who love the child and had his best interests at heart. The offender relied on the child's own sense of guilt to prevent disclosure. This in turn would have led to the child's sense of guilt being amplified. In order to gratify his own sexual desires and fantasies. Morris interfered with the child's privacy; the child's right to a healthy psychosexual development.
4. Morris abused his power as an adult by attempting to form, what he must have known was, a destructive relationship with a child of 13. His gifts and exchanges and communications were all designed to manipulate the child. The behaviour continued although his attempts to escalate what occurred were rebuffed by the child. And, although I do not double count this matter, it was done in deliberate breach of the child protection order.
5. The grooming must have had some corrosive impact on the child as the child did give in to the offender's unhealthy demands and suggestions. The crimes must have put the child's psychosocial development at risk: R v Asplund [2010] NSWCCA 316 at [48].
6. Every act that involves sexual exploitation of a child is serious. There is an absolute prohibition on sexual activity with children and that prohibition is designed to protect them from the psychological harm taken to be caused by premature sexual activity.
7. Similar principles apply to the use child to make child abuse material offence. It was an aspect or an object of the grooming offence because one aspect of that was the request for photos. But, in addition, Morris intended to further exploit the child by involving him in the product of child abuse material.
8. Here, thankfully, the nature and content of the material, compared to many the Court has to consider, involved only four requests and four pictures, of which one was a re-send of the genitals picture. The number of items is relevant. They were very low in the range of matters often dealt with by this Court. There is no suggestion that the material was produced other than for the prurient interest of the offender.
9. For reasons discussed with the parties, the high maximum penalties prescribed are based on a premise of levels of harm and given the well documented potential harms that can result from sexual violation of children, I do not need to go to s 21A(2) Crimes (Sentencing Procedure) Act to have a full appreciation of the impact on the victim.
10. The potential for harm to children from premature exposure to sexual activity are also, with respect, set out in the defence case here: Exhibit 2, par [16.4].
11. There are a number of other matters that I have been asked in the prosecution's submissions to take into account. But I am conscious here that I am making my assessment of the objective seriousness. I do not follow the invitation to double count matters that have already been taken into account, such as to take into account 21A(2)(j) Crimes (Sentencing Procedure) Act.

Victim impact

1. The incident obviously had an impact on a 13 year old. I can readily understand why he broke down when the police came and why he would want to put this episode behind him. His mother prepared a Victim Impact Statement. It speaks to the harm caused to the child.
2. Although I take into account matters of concern about the statement, raised by Morris' counsel Mr Booker, I did not read the report as setting out any more than one would expect to be the reaction of a mother confronted with what had occurred to her child and the impact and her concern for, and reaction to, the impact on her child.
3. I do not need to have proof to a necessary standard of any exact condition that the child may suffer or suffer in the future. The confidential report speaks to the sort of serious harms that all too commonly arise in matters such as this. Given the harm that is presumed, and the potential harms that can result, the Statement will be given appropriate weight.

Criminal history

1. The offender has a criminal history. It is appropriate to determine the proper sentence. It shows this matter was not an uncharacteristic aberration. It demonstrates his continuing disobedience to the law. There are disturbing similarities with the matter dealt with by Judge Hock whose sentencing remarks from May 2015 are before me.
2. Morris' prior history cannot result in a sentence disproportionate to the matters for sentence here. But it is obviously a matter of some relevance. It requires I consider community protection issues and issues in relation to specific deterrence: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477].
3. Another breach offence from the same period was dealt with in the Local Court: Exhibit A, Tab 9. It fits the pattern of contraventions before me.
4. Morris went into custody on the matters I am sentencing for on 1 January 2024. He has been in custody ever since. However, during that remand period he served six months for a child sex offender registration offence. There must be some independent punishment for that offence. I propose to start his sentence three months after he went into custody, that is on 10 April 2024.

Subjective case

1. The offender did not give evidence, but I have a comprehensive psychosocial report from Ms Ferguson. It set out his personal history. He is now 52. He lives alone. He has minimal social networks, although he has some family support. He has worked all his life since leaving school. His schooling was disrupted by bullying and truancy; he left as soon as he could.
2. He was raised by his mother and an older sibling. His family was subject to considerable financial hardship. 'Poverty' is the word I would use. His early years were marred by exposure to substance abuse and domestic violence. As a young boy, he and his brother were subject to sexual abuse by his youth worker; the police were involved.
3. He still has regular contact with his mother and family members and some of them have supported him and continue to support him. Prosocial support is one important aspect I have to consider.
4. He has a number of health problems, including high blood pressure and the aftereffects of shingles. He has, however, been able to work in gaol industry, and is now a leading hand. He told Ms Ferguson that he learnt from his last period in gaol; one particular aspect he was able to deal with was an underlying alcohol abuse problem.
5. Ms Ferguson notes the impact of a significant trauma background and disrupted schooling. She suggests that his "offending may be interpreted as a traumatic re-enactment, a strategy to cope with and master his past traumatic experience".
6. She notes he had "minimal intervention to address his trauma history" to date and that he "would benefit from a safe counselling environment". I note that during his last sentence he completed the CUBIT sex offender treatment program.
7. Dr Furst, a respected forensic psychiatrist, notes that Morris meets the criteria for a diagnosis of Paedophilic Disorder, non-exclusive type, and Alcohol Use Disorder. Dr Furst notes that the Paedophilic Disorder is characterised by persistent sexual attraction to pre-pubescent children. He notes that the exact cause of this disorder is not fully understood but sets out factors that should be considered.
8. He suggests future treatment focused on reducing risk and helping Morris manage his deviant thoughts and harmful behaviours. This can include sex offender treatment programs available in custody and pharmacological treatment. He believes, at page 6, the man reason for Morris' offending is most "likely a combination of sexual preoccupation … and deviant arousal [and he is] acting in response to his paedophilic disorder".
9. In Dr Furst's opinion, on page 6 of his report, Morris' "own childhood sexual abuse victimisation" is a relevant consideration given "such abuse is often associated with severe and detrimental long-term mental health outcomes … and higher rates of sexual offending in male victims".
10. Dr Furst makes careful recommendations for treatment by Justice Health. He suggests anti-libidinal medications be made available. He notes Morris would benefit from sessions with a clinical psychologist.
11. He attempted to assess Morris' risk of reoffending using both static and dynamic factors. He notes that Morris is not very insightful or reflective. He notes a relatively high risk of reoffending for sexual matters, as he has before, and a low risk of reoffending for non-sexual matters. He notes that studies show supervision on parole generally is associated with significant reduction in post-offence reoffending.
12. That history and those opinions are, with respect, uncontroversial.
13. There is no evidence before me of remorse and only some evidence of limited insight. Given the offender's background, that is understandable, he is not to be punished for that.

Moral culpability

1. There are relevant paths here to reduce his moral culpability, including the effects of childhood deprivation: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 57. And also, childhood trauma, such as being the victim of a sexual assault: Nasrallah v R [2021] NSWCCA 207. I note that that matter was, on the material before me, reported to police.
2. These matters are often interrelated. As the High Court observed in Bugmy, the pervasive effects of profound deprivation are not confined to the commission of a single event. Where a person's childhood or adolescence has been affected by disadvantage and trauma and there are mental health issues arising, this can affect their moral compass and their "capacity to make rational decisions and learn from experience": Bugmy at [43]. Those matters will be given full weight.

Ill heath

1. Morris is not in good health. He cannot escape punishment because of his health conditions, but it is a factor I have to take into account: Smith v R (1987) 44 SASR 587. It is clear that imprisonment will be more burdensome to him than for the average prisoner who does not have his health conditions.
2. There is also a risk here that he has been, or will continue to be, institutionalised. They are matters that must be addressed and considered in the sentence.

Structure

1. I am required to indicate an appropriate sentence for each offence and structure the sentences, including in relation to the Local Court matter, such that an overall sentence is just and appropriate to the totality of his crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63].
2. There must be some adjustment, particularly where there are matters in common between the offences. I have discussed those matters with counsel. Although it does not carry the highest maximum penalty, the groom offence seems to be the matter of most importance here. The other matters were, in a sense, related to it. But that does not mean that they should not be independently punished; they should.

Special circumstances

1. The indicated individual penalties will be partially accumulated. The offender will need considered supervision and extensive monitoring on release. He will have to learn to readjust to normal community life on release. These matters require I make a finding of special circumstances. As Dr Furst has indicated, offenders who are supervised and monitored on parole are less likely, during the time of parole, to commit further offences: W Wan, S Poynton and D Weatherburn, "Does Parole Supervision Reduce the Risk of Re-offending?" (2016) 49 Australian & New Zealand Journal of Criminology 497.
2. That said, the minimum period in custody should properly reflect the gravity of the offences he committed and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Submissions

1. I have the benefit of comprehensive submissions provided by the Office of the Director of Public Prosecutions to which Mr Barnes, solicitor for the Director, spoke. I have the benefit of comprehensive submissions from Mr Booker, counsel for the offender, both in writing and orally. Mr Booker asked that a sentence not "crush" the offender's hope and motivation for future life. Obviously, what an offender might regard as "crushing" might be considered quite differently by the complainant and his family. I have to balance all relevant matters.
2. Importantly in any sentencing exercise, an offender should continue to have motivation to work while in custody and on parole to take up treatment and engage in programs designed to reduce his risk of reoffending.
3. Submissions were made about the need for specific deterrence. The offender has to understand, as I am sure he does, the consequences of his behaviour. That said, he must have understood the consequences of his behaviour would, if discovered, have led to his return to gaol; as inevitably it did.

Synthesis

1. Synthesising all those matters, some aggravate, some mitigate. There are no golden rules: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556].
2. I have to give weight to the conflicting purposes of sentencing. A proper sentence marks the Court's view of the seriousness of the crime, and it should let the offender and others know the retribution that will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.
3. But Morris must be released to the community. He cannot be detained longer than the seriousness of his crimes demand. Given his past failure to abide by court orders and his underlying paedophilic disorder he will remain at risk of reoffending on release. His background and history of childhood trauma must also be given appropriate weight, but so too must community protection.
4. The protection of children is a significant factor here. Sentencing courts have an obligation to: 1. Vindicate the dignity of the child victim; 2. To express the community's disapproval of this offending; 3. To afford, in the structure of the sentence, by both removing him from the community, and putting him under conditional release, when he has earned the right to release; and 4. Protection from the vulnerable against repetition of offending: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [52]-[58].

Orders

1. I will indicate individual sentences. They will reflect the reduction of 25% for the utilitarian value of the plea and my finding of special circumstances. The start date for the sentence is 10 April 2024.

• In relation to the first matter, contravene prohibition order - There will be, taking into account the matters on the Form 1, a sentence of 1 year and 6 months' imprisonment.
• In relation to the grooming offence - There will be a sentence of 4 years and 10 months' imprisonment, non-parole period of 3 years 1 month.
• In relation to the use child for child abuse material - There will be, taking into account the Form 1, a sentence of 2 years and 3 months, non-parole period of 1 year and 5 months.

1. The aggregate sentence is 6 years' imprisonment. The non-parole period is 4 years. The balance of the term is 2 years. The sentence will commence on 10 April 2024. The offender will be eligible for consideration to release to parole on 9 April 2028. The balance of the term of 2 years will commence on 10 April 2028. The aggregate sentence will expire on 9 April 2030. Release will be subject to an order of the State Parole Authority.

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