Morrison v R [2022] NSWCCA 158

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Morrison v R [2022] NSWCCA 158 Hearing dates: 15 June 2022 Decision date: 20 July 2022 Before: Leeming JA, Garling J, Lonergan J Decision: 1. Refuse leave to appeal against conviction. 2. Grant leave to appeal against sentence. 3. Allow the appeal against sentence. 4. Quash the sentence imposed by the District Court on 16 April 2021, and in lieu thereof, sentence the applicant to an aggregate sentence of 10½ years imprisonment commencing on 22 August 2019 and expiring on 21 February 2030, with a non-parole period of 7 years expiring on 21 August 2026. Catchwords: CRIME – appeals – appeal against conviction – applicant charged with sexual offences upon 13 year old girl – absence of consent an element of two of the counts – oral and written jury direction identified five pathways Crown could establish knowledge of absence of consent – fifth pathway was lack of reasonable basis for belief that complainant was consenting – addition "not" erroneously included in fifth pathway in oral and written direction – error unnoticed during trial – whether error amounted to miscarriage of justice – where absence of reasonable grounds for honest belief removed from issues at trial – where error wholly to advantage of accused because it denied one pathway by which Crown could establish knowledge of absence of consent – no miscarriage of justice established CRIME – appeals – appeal against sentence – aggregate sentence imposed for five sexual offences – all offences committed upon same complainant, at same location, as a single episode – extremely high level of effective concurrency required – aggregate sentence did not reflect sufficient level of effective concurrency – Evans v R [2017] NSWCCA 281 applied – sentence quashed and applicant resentenced Legislation Cited: 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 Cases Cited: Campbell v R [2014] NSWCCA 175; 312 ALR 129 Cesan v R (2008) 236 CLR 358; [2008] HCA 52 CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 Edwards v R [2022] NSWCCA 22 Evans v R [2017] NSWCCA 281 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 JM v R [2014] NSWCCA 297; 246 A Crim R 528 Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 Lane v R [2013] NSWCCA 317 Malicki v R; R v Malicki [2015] NSWCCA 162 McGrath v R [2010] NSWCCA 48; 199 A Crim R 527 Mehajer v R [2014] NSWCCA 167 Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Harris [2007] NSWCCA 130 R v Wheeler [2000] NSWCCA 34 Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 Category: Principal judgment Parties: Glenn Ian Morrison (Applicant) Regina (Respondent) Representation: Counsel: G Wendler (Applicant) A Bonnor (Respondent)