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District Court 19 December 2024

R v Morris

[2024] NSWDC 640

Sexual offencesPublic order & justice offences

Citation: R v Morris [2024] NSWDC 640
Court: District Court of New South Wales
Date: 19 December 2024
Judge: Haesler SC DCJ

Background

A 52-year-old warehouse worker came into contact with a 13-year-old boy who accompanied his grandfather to work during the school holidays. The offender was already subject to a Child Protection Offender Prohibition Order, which prohibited him from being in the company of, or communicating with, any person under the age of 18.

Despite that order, the offender worked alongside the child, exchanged phone numbers with him, and then commenced a sustained course of text communications. Over several weeks he provided the child with gifts including PlayStation gift cards, vapes, money, takeaway food and other items. He used those exchanges to request and obtain photographs of a sexual nature from the child, and repeatedly requested sexual activity, which the child refused.

The child's mother discovered the communications by accessing her son's phone and contacted police. A forensic examination of the offender's devices recovered 74 communications between the offender and the child, the photographs, and further child abuse material. The offender was charged and pleaded guilty in the Local Court.

  • Whether, and how, the deliberate breach of a Child Protection Offender Prohibition Order affected the assessment of objective seriousness across all offences
  • The appropriate weight to give guilty pleas entered at the earliest opportunity, including their utilitarian value and the benefit of sparing the child from further trauma
  • How Form 1 matters should affect the principal sentence, including the risk of double counting
  • The relevance of the offender's subjective circumstances, including diagnosed Paedophilic Disorder, Alcohol Use Disorder, institutionalised childhood sexual abuse, and poverty in childhood
  • How to structure an aggregate sentence, including accumulation and the finding of special circumstances justifying an extended parole period

Decision

Haesler SC DCJ assessed the objective seriousness of each offence individually. His Honour found that all conduct involved deliberate disobedience of a court order, which both enabled further offending and undermined the authority of the courts and the protective function of such orders. The grooming offence was characterised as a secret crime that exploited the child's own sense of guilt to prevent disclosure, interfered with his right to a healthy psychosexual development, and continued despite repeated refusals by the child to escalate the conduct.

On the child abuse material offence, His Honour noted that the requests and images were low in the range of such matters and that the Form 1 possession charge (retaining the material) did not significantly add to the aggregate sentence beyond the principal offence. Care was taken not to double count the same conduct across multiple charges.

The offender's guilty pleas attracted a 25 per cent reduction in each sentence for utilitarian value. His Honour noted this was particularly significant because it spared the child from the re-traumatisation of giving evidence. The offender's diagnosed Paedophilic Disorder and Alcohol Use Disorder, and his background of institutionalised childhood sexual abuse and poverty, were treated as relevant subjective factors. However, consistent with the High Court's approach in Bugmy and Munda, those factors did not displace the need for community protection and general deterrence, particularly given the offender's prior criminal history and his failure to comply with protective orders.

His Honour found special circumstances justifying a longer than usual parole period, given the need for supervised reintegration following a lengthy custodial term and the offender's ongoing risk of reoffending. The aggregate sentence was structured to ensure accumulation did not erode the benefit of the guilty pleas.

Orders Made

  • Contravene prohibition order (Sequence 1, with Form 1 matters): 1 year and 6 months' imprisonment
  • Grooming child under 14 for sexual activity (Sequence 7): 4 years and 10 months' imprisonment, non-parole period of 3 years and 1 month
  • Use child under 14 to make child abuse material (Sequence 8, with Form 1): 2 years and 3 months' imprisonment, non-parole period of 1 year and 5 months
  • Aggregate sentence: 6 years' imprisonment
  • Non-parole period: 4 years (commencing 10 April 2024; eligible for parole consideration on 9 April 2028)
  • Balance of term: 2 years (commencing 10 April 2028; sentence expires 9 April 2030)
  • Release subject to order of the State Parole Authority

Key Takeaways

  • Deliberate breach of a Child Protection Offender Prohibition Order is a significant aggravating factor that goes beyond the individual offences it enables: it undermines the courts' authority and the protective purpose of the orders themselves.
  • A 25 per cent reduction for an early guilty plea applies even in serious child sex matters, and the benefit of sparing the child victim from giving evidence is a recognised component of that utilitarian value.
  • Form 1 matters that are closely connected to the principal offence, and which would have been dealt with concurrently if prosecuted separately, add little to the aggregate sentence; care must be taken to avoid double counting conduct already captured by the principal charge.
  • Diagnosed mental health conditions, including Paedophilic Disorder, and a background of childhood trauma and institutionalised abuse are relevant subjective considerations, but the District Court confirmed they do not displace the sentencing objectives of community protection, retribution and general deterrence where children are the victims.
  • Finding special circumstances to extend the non-parole period is available where an offender poses a continuing risk and requires substantial supervised reintegration, provided the structure of the aggregate sentence does not erode the discount for the guilty plea.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 13(1)
- Crimes Act 1900 (NSW), ss 66EB, 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- 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
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 57
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Nasrallah v R [2021] NSWCCA 207
- Pearce v The Queen [1998] HCA 37; (1998) 194 CLR 610
- R v Asplund [2010] NSWCCA 316
- R v Geddes (1936) 36 SR (NSW) 554
- R v Herring (1956) 73 WN (NSW) 203
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Windle [2012] NSWCCA 222
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Suksa-Ngacharoen v R [2018] NSWCCA 142
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465