Morgan v R

1. [1]

   MACFARLAN JA: The applicant, Mr Reginald Morgan, was tried in the District Court before a judge and jury on four counts alleging that the following offences, involving the same complainant, occurred between September 1982 and May 1984:

2. [2]

   The jury returned verdicts of guilty on Counts 1, 2 and 4. Subsequently, the trial judge sentenced the applicant to an aggregate term of imprisonment of 3 years commencing on 11 August 2016 and expiring on 10 August 2019, with a non-parole period of 18 months to expire on 10 February 2018.

3. [3]

   The applicant appeals or seeks leave to appeal against his conviction on Counts 2 and 4 on the following grounds:

4. [4]

   The applicant has an appeal as of right to the extent that he alleges errors of law alone. Otherwise he requires leave to appeal (Criminal Appeal Act 1912 (NSW), s 5(1)).

5. [5]

   The applicant also seeks leave to appeal against his sentence on the following grounds:

EVIDENCE AT THE TRIAL

1. [6]

   The following summaries of the evidence at trial relevant to this appeal are taken from the Crown’s written submissions on appeal.

The Crown’s case

1. [7]

   The complainant was born in December 1970 and grew up in a country town in New South Wales. He was an altar boy at a local church. The applicant lived on a rural property situated outside the town. He was an acolyte of the church. The Crown case was that the applicant gave the complainant extra privileges in his role as an altar boy, and that the complainant visited the applicant at his property where the complainant received further privileges. The offences allegedly occurred on occasions when the complainant was aged between 11-13 and was visiting the applicant’s property. Count 1 occurred on one occasion and Counts 2 and 4 on a later occasion.

2. [8]

   In brief, the offence the subject of Count 1 involved the following. The complainant and his younger brother AM were at the applicant’s farm. The complainant said that he was around 11 and a half years old, although he recalled this event to have occurred in the summer of either 1982 or 1983. The applicant told AM (who was four years younger than the complainant) to run to a windbreak of trees a couple of hundred metres from the house. While AM was running, the applicant stroked the complainant’s penis and buttocks on the outside of his clothing and said ‘it makes me feel good’ while he did so. The complainant did not say anything. The stroking continued until AM returned (T 28-29).

3. [9]

   The offences the subject of Count 2 and 4 involved the following. The applicant came to the complainant’s house to collect him and his younger brother. When he arrived however the applicant told the complainant’s parents it would be safer if AM did not come as they were planning on doing farm work. The complainant was 12 or 13 years old at this time (T 29-30).

4. [10]

   When they arrived at the farm, the complainant rode a motorbike. He stopped and went inside the house after the applicant called him in. The applicant was wearing a button up shirt and Y-front underpants. The applicant tried to take the complainant into the main bedroom but he refused, and the applicant said they did not have to go in there (T 30). The applicant gave the complainant some sort of alcoholic drink. The complainant ended up naked (T 30). He was not sure how he came to have his clothes off but it was possibly as a result of a suggestion that he get cleaned up after riding the motorbike (T 31). When the complainant was naked, the applicant encouraged him to run laps around the house. Whilst he was running around naked, the complainant had an erection “to the delight of [the applicant]” (T 31-32).

5. [11]

   The applicant called the complainant over to a chair where he was sitting in the lounge. He started touching the complainant, rubbing the sides of his legs, his buttocks and his penis. The applicant put the complainant’s erect penis into his mouth. The complainant did not say anything, nor did he move or pull away. He did not ejaculate. At that age, he had “not a clue” about that type of activity nor did he have knowledge of any sexual matters (T 34, 50-51). The complainant was not “willing” for the applicant to do this (T 50) (Count 2).

6. [12]

   The applicant ceased the fellatio and removed his underpants. The complainant could see his erect penis. The applicant said “Can you give me a hand with this?” and the complainant said “no”. The applicant masturbated in front of the complainant until the applicant ejaculated (T 35) (Count 4).

7. [13]

   The applicant and complainant got dressed and the applicant took the complainant home. The complainant did not tell his parents what had occurred. The complainant said (T 35):

8. [14]

   The complainant contacted the applicant by telephone in 2009. The complainant’s evidence was that he asked the applicant what he was going to do about what happened to the complainant as a kid, and the applicant offered him money. The complainant told him it was not about money but he wanted to “get this shit out of [his head]” (T 35-38). The complainant said that he decided to raise the subject at that time in particular because his own son was 11 years old and he realised he was having trouble giving his son freedom to go to other people’s houses (T 49-50).

9. [15]

   In cross-examination the complainant denied that the purpose and content of the calls to the applicant were to try to obtain money from him (T 72-75).

The applicant’s case

1. [16]

   The applicant gave evidence at the trial. He said that the alleged offending never occurred, and that the surrounding events as alleged by the complainant, including giving the complainant special privileges at the church, never took place. The applicant said that there was no improper conduct of any kind, and denied that the complainant was ever alone with the applicant in the applicant’s house. The applicant gave evidence that the complainant made phone calls to the applicant many years after the events in order to extort money from the applicant.

Ground 1: whether there was a substantial miscarriage of justice in that evidence was allowed over objection to be placed before the jury on the issue of consent

1. [17]

   To prove the offence charged in Count 2, it was necessary for the Crown to prove beyond reasonable doubt that the complainant did not consent to the act of fellatio (being an act of sexual intercourse as defined in the legislation), and that the applicant knew that he did not consent. The complainant’s age did not render him incapable of consenting to sexual intercourse for the purposes of this particular offence (McGrath v The Queen (2010) 199 A Crim R 527; [2010] NSWCCA 48 at [9]-[11]).

2. [18]

   The applicable statutory provision, s 61D of the Crimes Act 1900 (NSW) was in the following terms at the relevant time:

3. [19]

   The evidence relevant to this ground of appeal was the complainant’s evidence, commencing as follows:

4. [20]

   As the complainant was apparently distressed at this stage, a short adjournment was taken. After the adjournment, the evidence continued:

5. [21]

   The next day, whilst the complainant was still giving his evidence-in-chief, the following evidence was given:

6. [22]

   The complainant was not cross-examined about any aspect of his evidence concerning consent. In particular, no suggestion was made to him that he consented to the fellatio or any other sexual conduct. This was not surprising as the applicant’s case at trial was that the alleged conduct did not occur.

7. [23]

   The applicant submitted that his counsel’s objection to the question asked on the second day (see [21] above) should have been upheld and that the trial judge acted on the basis of two misconceptions in overruling it. One alleged misconception was the judge’s incorrect belief that the relevant earlier answer had been given on the same morning (rather than on the previous day). The other was that the earlier answer was the same as that given on the second day. The first misconception was entirely immaterial and need not be further discussed.

8. [24]

   The second misconception was also of no consequence. If the same answer had in fact been given on both occasions the question was asked, the applicant could have argued that the jury should have been instructed to disregard the second answer. If the answers were the same however, there would have been little point in asking for the jury to be instructed to do so.

9. [25]

   As it transpired, and contrary to the trial judge’s recollection, the two answers were different. As noted above, the first question and answer was:

10. [26]

    This was not a direct answer to the question asked. As the applicant recognised in his written submissions to this Court, the answer was equivocal. If the trial judge had correctly recalled the first answer his Honour would inevitably have come to the conclusion that the two answers were different, with the first not being a direct answer. Therefore, whilst the complainant was still being examined in chief, the Crown Prosecutor was entitled to ask another question to the same effect as the first in order to get a direct answer. This is what she did on the second day when she asked the complainant whether the complainant was “willing for Mr Morgan to put your penis in his mouth”. Unlike the answer to the similar question posed the previous day, the answer given (“No”) was a direct answer to the question.

11. [27]

    In these circumstances, the trial judge’s rejection of the objection to the question asked on the second day was correct, and his Honour’s misunderstandings were inconsequential and of no prejudice to the applicant. As a result, Ground 1 should be rejected.

Ground 2: whether the verdict on count 2 is unreasonable or cannot be supported by the evidence

1. [28]

   The applicant’s submissions in support of this ground were largely confined to the contention that at trial the Crown did not establish beyond reasonable doubt that the applicant knew, in the sense referred to in s 61D(1) of the Crimes Act 1900 (NSW), that the complainant did not consent to the applicant’s conduct (the jury’s verdict indicating that it was satisfied that such conduct had occurred). The applicant did not contend that the jury acted unreasonably or without an adequate basis in the evidence by finding that the conduct occurred. However the applicant did submit, without elaboration, that the jury acted unreasonably in finding that the complainant did not consent to the conduct. That submission clearly fails because the complainant gave uncontested and explicit evidence that he did not consent. On appeal, the applicant advanced no reason why the jury should not have accepted that evidence.

2. [29]

   I therefore confine my consideration of this ground, and the “independent assessment” that I am required to undertake (SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14]), to the issue of the applicant’s knowledge. The ultimate question for this Court raised by this ground is accordingly whether the Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant knew that the complainant did not consent to the applicant’s conduct (see R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66] citing M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63).

3. [30]

   Whether it was “open to the jury” to be satisfied of this element of the offence, and therefore of the applicant’s guilt, requires this Court to determine:

4. [31]

   In this context, it is important to bear in mind that “the jury is the body entrusted with the primary responsibility of determining guilt or innocence, … [and] the jury has had the benefit of having seen and heard the witnesses” (M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; see also The Queen v Baden-Clay at [65]). This factor assumes particular importance in the present case where the jury heard and saw both the complainant and the applicant give evidence.

5. [32]

   At trial, the Crown put its case concerning the applicant’s knowledge on the basis that the applicant had been reckless as to the existence of the complainant’s consent. In this regard s 61D(2) of the Crimes Act deems a person “who is reckless as to whether the other person consents to the sexual intercourse” to know that the other person does not consent to it (see [18] above). The Act does not (and at the relevant time did not) contain any definition of recklessness, leaving that to be determined by reference to the general law.

6. [33]

   In her closing address, the Crown Prosecutor said that the applicant “didn’t even stop to think whether a child of [the complainant’s] relative or complete inexperience of that type of activity, whether he consented or not, he was completely reckless, didn’t turn his mind to it and just pressed ahead regardless without saying ‘this is what I’m going to do to you, do you understand it, do you understand it, are you sure you’re right for that’ and so on”. She then indicated that the trial judge would direct the jury in relation to recklessness (T 249).

7. [34]

   The trial judge’s written directions to the jury included the following:

8. [35]

   In his Summing-Up, the trial judge referred to this document and said:

9. [36]

   His Honour prefaced this by stating:

10. [37]

    His Honour’s description in the first sentence of what consent required accorded with the High Court’s decision in Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74 (see particularly at 256-61 and see also Dean v Phung [2012] NSWCA 223 at [88]-[94]). It also accorded with the version of Watson & Purnell Criminal Law in New South Wales (1982, The Law Book Company Limited) current at the time of the offences (at [262M]).

11. [38]

    Neither these, nor or any other parts of the Summing-Up, were challenged on appeal. Nor was any objection taken at trial to any presently relevant part of it. In particular, no challenge or objection was taken to subparagraph (b) of the written direction regarding knowledge (compare Castle v The Queen (2016) 92 NSWLR 17; [2016] NSWCCA 148 where a challenge was made to the trial judge’s direction regarding recklessness in connection with the offences of kidnapping under s 86 of the Crimes Act).

12. [39]

    On appeal, the applicant contended that the meaning of “reckless” in s 61D(2) was to be ascertained by reference to R v Morgan [1976] AC 182 at 209, 215, 225 and Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80. He submitted that these decisions required the Crown to demonstrate in the present case that the applicant engaged in the alleged conduct with the complainant “willy-nilly not caring whether the victim consent[ed] or not”. R v Morgan included that state of mind in the concept of recklessness. Its inclusion was approved in Banditt at [27], [35] and [38] and confirmed in Castle v The Queen at [49]-[50].

13. [40]

    Recklessness in this sense was referred to in the first part of subparagraph (b) of the trial judge’s written directions to the jury concerning the applicant’s knowledge (see [34] above). That subparagraph directed the jury to consider whether the applicant “simply failed to consider whether or not [the complainant] was consenting at all, and just went ahead with the act of sexual intercourse”. The second part of subparagraph (b) continued:

14. [41]

    As R A Hulme J pointed out in Castle at [118], this part of such a direction (which he called “the rider”):

15. [42]

    In my view, the following matters lead to the conclusion that it was open to the jury (in the sense referred to in [30] above) to conclude that the Crown had established beyond reasonable doubt that the applicant was reckless in one or both of the respects to which the trial judge referred in his written directions (see [34] above).

16. [43]

    First, it was open to the jury to conclude that the complainant’s age (12 or 13) rendered it unlikely that he would want to engage in sexual activity with a man decades older than him (40 years of age), or indeed in any sexual activity. There was no evidence that the complainant had reached puberty or that the erection he had when running around the house resulted from sexual desire or stimulation (rather than being caused by the running or some other circumstance). Indeed, the complainant’s unchallenged evidence was that he did not have “any knowledge of any sexual matters” at the time the conduct occurred (T 50). In particular, he did not know “anything about oral intercourse of any kind” (T 51). On the evidence, the applicant had no reason to think otherwise.

17. [44]

    Secondly, that same unchallenged evidence of sexual ignorance indicated that the complainant did not know “the nature and character of what [was] about to occur”. Such knowledge was necessary for him to be able to give effective consent. With the benefit of having seen and heard both the complainant and the applicant give evidence it was open to the jury to conclude beyond reasonable doubt that the applicant must have appreciated the complainant’s lack of knowledge, or at least that there was a real possibility that the complainant lacked the relevant awareness.

18. [45]

    Thirdly, the applicant was in a position of authority at the church which the complainant and his family attended and at which the complainant acted as an altar boy. Further the complainant, a relatively young boy, was alone on the property with the applicant. At the very least, this must have raised a real doubt in the applicant’s mind as to whether the complainant was simply doing what the person in authority indicated that he should do or subject himself to, rather than truly consenting to the conduct. That is, the applicant must have had a real doubt as to whether the complainant was complying, not consenting.

19. [46]

    On appeal, the applicant submitted that two aspects of what occurred contradicted this inference. First, the applicant referred to the complainant’s evidence that, when the complainant returned to the house after bike riding, the applicant “tried to take [him] into the main bedroom”. The complainant said he did not agree to that happening, to which the applicant replied “[o]kay we don’t have to go into the bedroom”. The applicant thereafter gave the complainant an alcoholic drink and engaged in the Count 2 sexual conduct.

20. [47]

    Secondly, the applicant referred to the complainant’s evidence that after the Count 2 conduct had occurred, and when the applicant exposed his erect penis, the applicant asked the complainant “Can you give me a hand with this?” to which the complainant said “No”. The applicant submitted that these were “free and voluntary choices”, made “immediately before, during and after the incident [the subject of Count 2] such that there was an insufficient basis from which it could be inferred that the applicant, if he had turned his mind to it, must have realised that the complainant was not consenting but continued in any case”.

21. [48]

    On the occasions referred to at [46] and [47] above the complainant appears to have had a real opportunity to decline to engage in the relevant conduct, and did so. That was not the case however in regard to the Count 2 conduct itself, with which the applicant proceeded without any explicit (nor it seems implicit) inquiry as to the complainant’s attitude, and without foreshadowing what the applicant proposed. Therefore, the fact that the complainant did not express disagreement does not assist the applicant’s submission that he did not carry on with the fellatio “willy-nilly”. The complainant was simply not asked whether he consented to that conduct. Nor was there anything to indicate that the complainant understood the nature of that conduct, as opposed to submitting to it without the relevant awareness.

22. [49]

    Thirdly and importantly, the applicant gave the complainant alcohol. The applicant must have known, and presumably intended, that alcohol would be likely to impair the complainant’s judgment and diminish his willpower. It was open to the jury to conclude that the applicant did this to overcome any unwillingness of the complainant to participate in the applicant’s conduct.

23. [50]

    Fourthly, the applicant denied that the charged conduct occurred. Therefore he did not give evidence that might have assisted him in contending that the Crown failed to establish that he had been at least reckless as to the existence of consent on the complainant’s part. This did not mean that he was precluded from contending on appeal that the Crown had not established this element of the offences. In light of the evidence led by the Crown however, and in the absence of evidence from the applicant as to his state of mind, it is in my view “mere speculation or conjecture”, rather than a hypothesis available on the evidence (see Baden-Clay at [55]) to suggest that the applicant was not aware of at least a real possibility that the complainant was not consenting.

24. [51]

    For these reasons Ground 2 should be rejected.

Ground 3: whether the verdict on Count 4 is consistent with the acquittal on Count 2 (assuming that Ground 1 or 2 is successful)

1. [52]

   This ground does not arise as neither Ground 1 nor 2 has been successful. Accordingly, there is no need to address it.

Ground 1: whether the sentencing judge failed to properly assess the objective seriousness of the offending

1. [53]

   In his sentencing judgment, the judge made the following findings relevant to the objective seriousness of the offences of which the applicant was convicted.

2. [54]

   These findings constituted a thorough examination of the evidence relevant to the objective seriousness of the offences. The applicant was not able to point to any matter of potential significance that the judge overlooked, nor to any matter that his Honour wrongly took into account. Rather, the applicant’s submissions were to following effect.

3. [55]

   First, he submitted that the sentencing judge failed to specify where on the spectrum of criminality the offending should be placed (see R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at [19]). In my view however, the judge did do this, at least implicitly (see Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]).

4. [56]

   The sentencing judge referred to the offending as very serious indeed, particularly in respect of Count 2, although it fell “far short of the worst examples of conduct” which could constitute offences under the relevant sections. Taken in the context of his Honour’s full remarks on objective seriousness, it is clear from these references that the judge regarded the criminality of the offences as somewhere in the mid-range. As these were not standard non-parole period offences, this approach sufficed.

5. [57]

   Secondly, the applicant submitted that if the sentencing judge was to be understood as having assessed the offences as in the mid-range of objective seriousness, that assessment was not justified by the evidence.

6. [58]

   This submission however encounters the hurdle of this Court’s approach to interfering with assessments of objective seriousness. As Spigelman CJ stated in Mulato v R [2006] NSWCCA 282 at [37]:

7. [59]

   Nevertheless, the applicant relied upon the following propositions to attempt to persuade this Court that the sentencing judge’s assessment of objective seriousness was erroneous:

   1. (1)

      “Fellatio is at the lower end of seriousness relative to other forms of sexual intercourse such as anal penetration, which carries with it a high risk of injury and higher risk of transmission of disease”.

   2. (2)

      “There was no violence, no coercion, the offending occurred over a relatively short period and there was no humiliation or degradation”.

   3. (3)

      “The complainant was 12-13 years old which is half way between the statutory bracket (between 10-16)”.

8. [60]

   However the applicant did not contend that the sentencing judge committed specific error in the course of his assessment, or that his Honour’s evaluative judgment was “unreasonable or plainly unjust” (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40). The matters to which the judge referred when assessing objective seriousness (see [53] above) indicate that his assessment was within the range of views reasonably open to him.

9. [61]

   In these circumstances, this ground of appeal should be rejected.

Ground 2: whether the sentencing judge failed to correctly apply the historical sentencing practice for offences in the 1970’s and 1980’s to fix a non-parole period between one-third and one-half of the total sentence

1. [62]

   The subject offences were committed between September 1982 and May 1984. The sentencing judge recognised that the applicant was to be sentenced consistently with sentencing practices prevailing at the date of his offences, including those relating to the imposition of a non-parole period (Magnuson v R [2013] NSWCCA 50 at [84]-[88]). His Honour noted that at the relevant time non-parole periods were customarily between one-third and one-half of the head sentence (see Wilson v R [2017] NSWCCA 41 at [36]-[37] and AJB v R [2007] NSWCCA 51 at [39]). His Honour then observed that at the relevant time, as now, it is necessary to ensure that “any non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice set against the objective gravity of the offending and in light of the offender’s subjective circumstances” (at p 12). Taking these matters into account, his Honour fixed the non-parole period as one-half of the total sentence.

2. [63]

   I do not consider that there was any error in his Honour so doing. First, his Honour did not have to adhere to the one-third to one-half range if he had reason to depart from it. Secondly, the non-parole period his Honour fixed was within that range, albeit at its top end. Finally, his Honour’s decision was an evaluative one in respect of which the applicant has not demonstrated any specific error. Nor has the applicant demonstrated that it was “unreasonable or plainly unjust” (see House v The King). In these circumstances Ground 2 should be rejected.

Ground 3: whether the sentencing failed to correctly apply the principle of general deterrence in accordance with AJB [2007] NSWCCA 51

1. [64]

   The sentencing judgment included the following observations on the question of general deterrence:

2. [65]

   In support of this ground of appeal, the applicant relied upon the following observation of Howie J in AJB v R [2007] NSWCCA 51 at [39]:

3. [66]

   The applicant concluded his written submissions by contending that the sentencing judge erred “by not tempering the weight or prominence to be given to the principle of general deterrence in the circumstances of this case” (at [5]).

4. [67]

   There were however circumstances in AJB that enabled his Honour to take the view that general deterrence was not a significant matter in that case. These included that, when the offending of the applicant in that case was brought to light, he sought treatment and “completely reformed” (AJB at [29]). Indeed, Howie J described the case as “an unusual case” that was “in a category of its own” for this reason (ibid). Accordingly, AJB does not stand for a general proposition that general deterrence must be given reduced significance in cases such as the present.

5. [68]

   Further, the applicant’s submissions on this ground do not identify any specific error such as a failure to consider a relevant matter or the taking into account of an irrelevant matter. Thus, to have the judge’s discretionary decision as to sentence overturned on appeal by reason of his Honour’s approach to general deterrence, the applicant would have to persuade this Court that the way in which his Honour took general deterrence into account resulted in a sentence that was “unreasonable or plainly unjust” (House v The King).

6. [69]

   In seeking to do so, it was insufficient for the applicant to merely contend that the judge placed too much weight on general deterrence. As Gageler J stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [53], a ground framed “only in terms of ‘weight’” is incapable of establishing specific error of the kind warranting appellate intervention referred to in House v The King. Such an argument only “point[s] at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category” referred to in House v The King, namely that the sentence in the totality of the circumstances was unreasonable or plainly unjust (see Bugmy at [51]-[53]).

7. [70]

   Further, as this Court has often repeated, it will not readily interfere with a sentencing judge’s assessment of the weight to be given to a particular factor. For example, in Majid v R [2010] NSWCCA 121 Johnson J (with whom Simpson and McCallum JJ agreed) stated at [40]:

8. [71]

   The applicant’s submissions on this ground amount in essence to a complaint about the weight given by the sentencing judge to the issue of general deterrence. The applicant has not demonstrated that his Honour’s approach to the issue was “unreasonable or plainly unjust”. His Honour’s remarks concerning general deterrence fell within the range of views that were open to his Honour to take. Having failed to establish circumstances that would justify intervention by this Court, the applicant’s submissions on this ground must be rejected.

ORDERS

1. [72]

   For the above reasons, the following orders should be made:

   1. (1)

      To the extent that the applicant challenges his convictions on grounds involving errors of law, dismiss the appeal.

   2. (2)

      To the extent that the applicant challenges his convictions on grounds not alleging errors of law alone, dismiss his application for leave to appeal against his convictions.

   3. (3)

      Dismiss the application for leave to appeal against sentence.

2. [73]

   DAVIES J: I agree with Macfarlan JA.

3. [74]

   BUTTON J: I agree with Macfarlan JA.