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Court of Criminal Appeal 4 May 2018

Morton v R

[2018] NSWCCA 84

Sexual offences
CRIME LEAVE TO APPEAL AGAINST SENTENCE

Citation: Morton v R [2018] NSWCCA 84
Court: Court of Criminal Appeal, New South Wales
Date: 4 May 2018
Judges: Macfarlan JA (leading judgment); Johnson J; Campbell J

Background

The applicant pleaded guilty in the District Court to three child sexual offences: aggravated sexual intercourse with a five-year-old girl who was under his authority (Count 1), indecent assault of the same child during the same incident (Count 2), and sexual intercourse with a six-year-old boy (Count 3). The offences were committed in March 2014 and between March and June 2016 respectively. In each case, the applicant had cultivated a relationship with the child's family before offending, and in each case he instructed the child to keep the conduct secret.

The District Court sentenced the applicant to a total effective sentence of 12 years and 6 months, with a total effective non-parole period of 8 years, representing 64 per cent of the head sentence. The sentencing judge allowed a 15 per cent discount for the guilty pleas and found special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of term.

The applicant sought leave to appeal, contending that the sentencing judge had mischaracterised the objective seriousness of the offending and that the overall sentences were manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective criminality of the offences as falling in the "mid-range"
  • Whether the sentences imposed were manifestly excessive or otherwise unreasonable and plainly unjust

Decision

The Court of Criminal Appeal, through Macfarlan JA (with Johnson J and Campbell J agreeing), rejected both grounds and refused leave to appeal.

On the first ground, the Court found no error in the sentencing judge's characterisation of the offences as mid-range. The sentencing judge had correctly directed attention to the circumstances of each individual offence rather than treating any category of child sexual offending as uniformly occupying a particular level of seriousness. Applying the approach in Markarian v The Queen, the Court confirmed that the sentencing judge had engaged in a proper instinctive synthesis, taking into account the applicable maximum penalties, standard non-parole periods, and all relevant aggravating features.

On the manifest excess ground, the Court reviewed a schedule of comparable sentences for offences under s 66A of the Crimes Act 1900 (NSW). The applicant conceded that only ten cases in the schedule were directly comparable, as those alone involved offences carrying a maximum of life imprisonment. Having examined those cases and others, Macfarlan JA concluded that none demonstrated the sentences here were unreasonable or plainly unjust. The Court noted that some comparable cases attracted substantially longer sentences, including cases involving kidnapping and multiple offences against a young family member.

The Court emphasised several features that supported the sentences as properly imposed: the very young ages of both victims (five and six years old), the serious breaches of trust involved (in one case the applicant was a person in authority over the child, and in the other had embedded himself within the family over months), the significance of both general and specific deterrence, and the absence of any unusually compelling subjective circumstances in the applicant's favour.

Orders Made

  • The application for leave to appeal against sentence was dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court will not interfere with a sentence merely because comparable cases produced different outcomes, particularly where the underlying facts differ significantly.
  • A sentencing judge's characterisation of offending as "mid-range" will not constitute error where it reflects a proper assessment of the individual circumstances of each offence rather than a generalised or formulaic categorisation.
  • Under s 66A of the Crimes Act 1900 (NSW), the very young age of a victim, a position of authority or trust, and deliberate grooming of the child's family are all factors capable of supporting sentences in, or above, the mid-range even on a guilty plea.
  • Where an applicant relies on a schedule of comparable sentences to establish manifest excess, the Court will examine whether those cases actually demonstrate a settled range and will not treat differences in outcome as automatically establishing that the sentence under review falls outside acceptable bounds (applying Hili v The Queen).
  • No unusually compelling subjective circumstances were present in this case, and the combination of general and specific deterrence considerations supported the sentences as imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44

Cases
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JL v R [2014] NSWCCA 130
- Leslie v R [2013] NSWCCA 48; (2013) 227 A Crim R 116
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulato v R [2006] NSWCCA 282
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v BA [2014] NSWCCA 148