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Court of Criminal Appeal 20 July 2022

Morrison v R

[2022] NSWCCA 158

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION ERROR UNNOTICED DURING TRIAL APPEALS APPEAL AGAINST SENTENCE

Citation: Morrison v R [2022] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 20 July 2022
Judges: Leeming JA, Garling J, Lonergan J

Background

The applicant, a 52-year-old man, met a 13-year-old girl at Manly Wharf one evening in August 2019. After she agreed to accompany him, the pair travelled by ferry and train to his room in a shared house in Mascot, where a series of sexual acts took place in the early hours of the following morning.

The applicant was tried and convicted of two counts of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW), as well as three counts of sexual touching of a child. He was acquitted of a fourth sexual touching count. The aggravating circumstance for the two assault counts was that the complainant was under 16 years of age. The applicant accepted that the sexual acts occurred but maintained that the complainant was consenting and that he believed she was 16 or older.

The applicant was sentenced to an aggregate term of 13 years imprisonment with a non-parole period of 8 years and 8 months. He sought leave to appeal both his convictions on the two aggravated sexual assault counts and his sentence.

  • Whether a conceded error in the jury direction on consent, specifically the erroneous inclusion of the word "not" in the fifth pathway available to the Crown to establish the accused's knowledge of absence of consent, constituted a miscarriage of justice sufficient to warrant a new trial.
  • Whether the indicative sentences contributing to the aggregate sentence were manifestly excessive.
  • Whether the aggregate sentence failed to reflect a sufficiently high level of effective concurrency, given that all offences were committed upon the same complainant, at the same location, as part of a single episode.

Decision

Appeal against conviction: The trial judge's oral and written directions identified five pathways by which the Crown could establish, under s 61HE(3) of the Crimes Act, that the applicant knew the complainant was not consenting. The fifth pathway concerned the absence of reasonable grounds for believing the complainant was consenting. Through the inadvertent insertion of the word "not," the direction effectively told the jury that this fifth pathway was unavailable to the Crown, removing one route to conviction that Parliament had expressly provided.

The Court of Criminal Appeal accepted the error but found it caused no miscarriage of justice. The error operated entirely in the applicant's favour by denying the Crown one of its five available pathways. The Court also noted that the question of reasonable grounds for belief in consent was effectively removed from the issues at trial, given the applicant's admitted belief that the complainant was 16 or older. Because the erroneous direction could only have assisted the applicant, no substantial miscarriage of justice was established, and leave to appeal against conviction was refused.

Appeal against sentence: The Court found that the aggregate sentence of 13 years did not reflect a sufficiently high level of effective concurrency. All five offences were committed against the same complainant, in the same room, during a single episode. Applying Evans v R [2017] NSWCCA 281, the Court held that where multiple offences form part of one continuous episode against one victim, the aggregate sentence must reflect a markedly greater degree of concurrency than the arithmetic sum of the individual sentences would suggest.

The Court resentenced the applicant to revised indicative sentences and imposed a reduced aggregate sentence of 10½ years imprisonment with a non-parole period of 7 years. The Court retained the finding of special circumstances justifying a departure from the standard two-thirds ratio between non-parole period and head sentence, noting among other factors the applicant's experience of protective custody, media exposure, and COVID-19 arrangements.

Orders Made

  • Leave to appeal against conviction refused.
  • Leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • Sentence imposed by the District Court on 16 April 2021 quashed and replaced with an aggregate sentence of 10½ years imprisonment, commencing 22 August 2019 and expiring 21 February 2030, with a non-parole period of 7 years expiring 21 August 2026.

Key Takeaways

  • A misdirection in a jury charge does not automatically constitute a miscarriage of justice: where the error operated wholly to the advantage of the accused by removing one of the Crown's available pathways to conviction, the Court of Criminal Appeal found no basis to set aside the verdict.
  • Under s 61HE(3) of the Crimes Act 1900 (as it then stood), any one of three limbs, including absence of reasonable grounds for belief in consent, was independently sufficient to establish the knowledge element of aggravated sexual assault.
  • Where multiple sexual offences are committed against the same complainant in the same location during a single continuous episode, an aggregate sentence must reflect an extremely high level of effective concurrency, consistent with the principle in Evans v R [2017] NSWCCA 281.
  • In reducing the aggregate sentence from 13 years to 10½ years, the Court of Criminal Appeal confirmed that an aggregate sentence constructed from several indicative sentences can be manifestly excessive even if the individual indicative sentences are not, because the aggregate may fail to properly account for the totality principle.
  • A 25% sentencing discount was upheld for count 4 (cunnilingus) because the offence only came to police attention through the applicant's own admission, engaging s 22A of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61HA, 61HE, 61J, 66C, 66DB, 80AB, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 22A, 44, 53A
- Criminal Appeal Act 1912 (NSW): ss 5, 6
- Supreme Court (Criminal Appeal) Rules 2021 (NSW): r 4.15
- Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)

Cases:
- Evans v R [2017] NSWCCA 281
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- McGrath v R [2010] NSWCCA 48; 199 A Crim R 527
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Campbell v R [2014] NSWCCA 175; 312 ALR 129
- Cesan v R (2008) 236 CLR 358; [2008] HCA 52
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
- Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
- Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63
- Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242