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Court of Criminal Appeal 22 November 2017

Morgan v R

[2017] NSWCCA 269

Sexual offences
CRIME HISTORIC CHILD SEXUAL OFFENCES APPEAL AGAINST SENTENCE HISTORIC CHILD SEXUAL OFFENCES PAROLE PERIOD

Citation: Morgan v R [2017] NSWCCA 269
Court: Court of Criminal Appeal, NSW
Date: 22 November 2017
Judges: Macfarlan JA (principal judgment); Davies J and Button J (both agreeing)

Background

The applicant was convicted in the District Court on three counts relating to sexual offences against a male complainant that occurred between 1982 and 1984, when the complainant was aged 11 to 13. The offences took place on visits to the applicant's rural property. The applicant and the complainant had a connection through a local church, where the applicant was an acolyte and the complainant served as an altar boy.

The convictions included one count of indecent assault, one count of sexual intercourse without consent upon a person under 16 (contrary to s 61D of the Crimes Act 1900 (NSW), since repealed), and one count of an act of indecency. The applicant was sentenced to an aggregate term of three years' imprisonment with a non-parole period of 18 months. He denied all allegations at trial, asserting the complainant had contacted him years later in an attempt to extort money.

The applicant sought to appeal both his convictions and his sentence, raising questions about the admissibility and use of consent evidence, the reasonableness of the jury's verdict, and several alleged sentencing errors.

  • Whether evidence placed before the jury on the issue of consent gave rise to a substantial miscarriage of justice (Conviction Ground 1)
  • Whether the verdict on the sexual intercourse without consent count was unreasonable or unsupported by the evidence, including whether the jury could be satisfied the applicant was reckless as to consent under s 61D (Conviction Ground 2)
  • Whether the verdict on the act of indecency count was inconsistent with any acquittal on the sexual intercourse count (Conviction Ground 3, contingent)
  • Whether the sentencing judge failed to properly assess the objective seriousness of the offending (Sentence Ground 1)
  • Whether the sentencing judge failed to apply the correct historical sentencing practice when fixing the non-parole period (Sentence Ground 2)
  • Whether the sentencing judge erred in giving weight to general deterrence (Sentence Ground 3)

Decision

Conviction grounds: The Court considered the meaning and operation of s 61D, which at the relevant time required proof that the accused knew the complainant did not consent, and also extended liability to an accused who was reckless as to whether consent existed. Macfarlan JA examined the concepts of "consent" and "recklessness" as they applied to the circumstances. Importantly, the Court confirmed that a complainant under 16 was not automatically incapable of consenting to sexual intercourse for the purposes of this particular provision, as established in McGrath v The Queen.

The Court found that the jury was entitled to conclude, on the evidence, that the complainant did not consent and that the applicant was at least reckless as to that absence of consent. The complainant's evidence, including his age and lack of understanding of sexual matters at the time, supported the jury's finding. The admission of consent-related evidence did not produce a substantial miscarriage of justice, and the verdict was not unreasonable. Because Grounds 1 and 2 failed, the contingent Ground 3 (inconsistency) did not arise.

Sentence grounds: The Court of Criminal Appeal reiterated the high threshold required before an appellate court will intervene in sentencing, applying the principles from House v The King and Bugmy v The Queen. On objective seriousness, the Court found no demonstrated error in the sentencing judge's assessment. On the non-parole period, the Court acknowledged that historical sentencing practice was relevant but found no established error in the judge's approach. On general deterrence, the Court held that the applicant's submissions amounted to a challenge to the weight the sentencing judge assigned to that factor, which is a ground that faces inherent difficulties. The sentencing judge's remarks on general deterrence fell within the range of views open to him, and no basis for intervention was established.

Orders Made

  • The appeal against conviction, to the extent it alleged errors of law, was dismissed.
  • The application for leave to appeal against conviction, on grounds not alleging errors of law alone, was dismissed.
  • The application for leave to appeal against sentence was dismissed.

Key Takeaways

  • Under s 61D of the Crimes Act 1900 (NSW) as it stood in the early 1980s, a complainant under the age of 16 was not automatically incapable of consenting to sexual intercourse for the purposes of that provision; the Crown was still required to prove absence of consent and the accused's knowledge of, or recklessness as to, that absence.
  • Recklessness as to consent under s 61D was sufficient to ground a conviction, and the Court of Criminal Appeal confirmed the jury could draw that inference from the totality of the circumstances, including the complainant's age, inexperience, and conduct during the offence.
  • In dismissing all three sentence grounds, the Court reinforced that challenges framed as complaints about the weight given to a particular sentencing factor face a narrowly confined prospect of success on appeal.
  • No error was established in applying historical sentencing practice to a non-parole period for offences committed in the early 1980s; the sentencing judge's approach remained within the proper discretionary range.
  • Appellate intervention in sentencing requires demonstration that the sentence is unreasonable or plainly unjust in the totality of the circumstances, a threshold the applicant did not meet on any of the three grounds advanced.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61D (since repealed)
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases:
- AJB v R [2007] NSWCCA 51
- Banditt v The Queen (2005) 224 CLR 262
- Bugmy v The Queen (2013) 249 CLR 571
- Castle v The Queen (2016) 92 NSWLR 17
- Dean v Phung [2012] NSWCA 223
- Delaney v R; R v Delaney (2013) 230 A Crim R 581
- House v The King (1936) 55 CLR 499
- Kennedy v R [2017] NSWCCA 193
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- Magnuson v R [2013] NSWCCA 50
- Majid v R [2010] NSWCCA 121
- McGrath v The Queen (2010) 199 A Crim R 527
- Mulato v R [2006] NSWCCA 282
- Papadimitropoulos v The Queen (1957) 98 CLR 249
- R v Baden-Clay (2016) 258 CLR 308
- R v Kilic (2016) 91 ALJR 131
- R v McEwan [1979] 2 NSWLR 926
- R v Morgan [1976] AC 182
- Sabongi v The Queen (2015) 249 A Crim R 167