REGINA v MORROW [1999] NSWCCA 64

New South Wales Court of Criminal Appeal CITATION : REGINA v MORROW [1999] NSWCCA 64 FILE NUMBER(S) : CCA 60673/98 HEARING DATE(S) : 10 March 1999 JUDGMENT DATE : 10 March 1999

PARTIES : Director of Public Prosecutions Jason Paul Morrow (appellant) JUDGMENT OF : Spigelman CJ at 30; Abadee J at 33; Adams J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/71/0016 LOWER COURT JUDICIAL OFFICER : Judge Rummery

COUNSEL : Mr P G Ingram (Crown) Mr C P Heazlewood (appellant) SOLICITORS : S E O'Connor (DPP) T A Murphy (appellant) CATCHWORDS : ACTS CITED : S 558 Crimes Act 1900 ss 85 & 90 Evidence Act 1995 Allpass (1993) 72 A Crim R 561 R v Martin John Letteri (unreported NSWCCA 18 March 1992) CASES CITED: R v Dean William Wright (unreported NSWCCA 28 February 1997) R v Dodd (1991) 57 A Crim R 349`1 R v Dean William DECISION : Appeal is dismissed

IN THE COURT OF CRIMINAL APPEAL 60673/98

SPIGELMAN CJ ABADEE J ADAMS J WEDNESDAY 10 MARCH 1999 REGINA v Jason Paul MORROW JUDGMENT

1 SPIGELMAN CJ: I invite Adams J to give the first judgment. 2 ADAMS J: On 19 May 1998 the respondent pleaded guilty to one count of sexual intercourse with a person under the age of ten years, namely nine years, and not guilty to three counts of sexual intercourse with a person between the ages of ten and sixteen years, namely ten years, and one count of aggravated indecent assault. The plea of guilty was accepted by the Crown in full discharge of the indictment. 3 The maximum penalty for the offence of which the appellant was convicted is twenty years penal servitude. On 18 September 1998 the court deferred passing sentence and ordered that the respondent should be released on a recognizance under s 558 of the Crimes Act 1900 requiring him to be of good behaviour for a period of five years and to appear for sentence if and when called upon at any time within that period. That recognizance was subject to the condition that he place himself under the supervision and guidance of the New South Wales Probation and Parole Service and undertake such medical and psychological therapy and treatment as he might be advised by his probation officer or his professional adviser. We have been informed that the respondent has honoured the terms of this recognizance. 4 At the time of the offence the respondent was twenty-six years of age. On the face of it, having regard to the serious nature of the matter, his Honour's disposition of the matter was, to say the least, unusual. However, the case had a number of most unusual features. 5 The respondent was arraigned in Wagga Wagga on 18 May 1998 and pleaded not guilty to five charges of sexual assault. The terms of the first count to which he later changed his plea in circumstances which I will presently describe, I have already dealt with. 6 Counts 2, 4 and 5 in the indictment were laid under s 66C of the Crimes Act and the alleged sexual intercourse at Wagga Wagga between 29 November and 31 December 1995 (count 2) and between 15 April and 28 June 1996 (counts 4 and 5). Count 3 was a charge under s 61M(1) and (3) of the Crimes Act 1900 usually described as indecent assault which allegedly took place between 29 November and 31 December 1995. 7 After the jury was empanelled and the respondent put in their charge they were sent out and a voir dire was conducted for the purpose of determining the admissibility of alleged admissions made by the respondent in respect of count 1 when interviewed by police officers. It is important to note that the only evidence of the occurrence which was the subject of the first count comprised the respondent's admission, the complainant not having adverted to it in any way. Indeed, the sole factual basis underlying the offence consists of the respondent's somewhat exiguous statement about it. I will return to this matter in due course, as it seems to me that this is a significant element in the proper disposition of the appeal. 8 To return to the procedural aspects of the matter, his Honour ruled that the admissions were admissible. Objection had been taken in reliance on ss 85 and 90 of the Evidence Act 1995. The foundation for the application was, in substance, an inappropriate, if not improper, statement by the investigating police officer, following the respondent's initial denials of wrongdoing, that he found it "hard to accept that a child can make a complaint of this nature unless these things did actually occur" following which the respondent said, "Yes, I did interfere with her". Shortly after when the other investigating police officer returned to the room she was told by him, in the presence of the respondent, "He's got something to tell you". The other officer then turned to the respondent and said, "What's that?" and the respondent replied, "I did interfere with her. I don't know why, I need help" and went on to make the relevant admission. Neither of these statements should have been made by the officers. 9 On the voir dire the respondent said, "Well I thought about what he asked and I thought about it for a while longer and then I thought: well, that must be a way of saying like that I probably did do it, but I didn't, but I did, like I was supposed to admit to it but I didn't." 10 The other most material fact for his Honour to consider, and he did, was that the appellant suffered from a cognitive skills function within the low average to borderline range, borderline verbal skills and performance skills observed to be within low average limits. His Honour had the advantage of seeing the respondent give evidence on the voir dire and his responses on the video recording. Although he held that the admissions were admissible his Honour, in his later reasons for judgment, stated that the impression he formed "was that both in the words used ... and his appearance when using them ... [the respondent] did not exude complete conviction". 11 The psychological report that was tendered on the voir dire was limited essentially to the issue of intellectual functioning. It might be thought that social functioning and adaptive skills were at least as, if not more, important to assess where there was a prima facie case of impairment. However, as it happened, a psychological assessment of these matters was only obtained from Prof Hayes at a later stage. Essentially, that report confirmed the earlier assessment of cognitive impairment but Prof Hayes considered that a particular area of deficit for the respondent was communication, where "he is severely disabled." In a number of relevant areas of adaptive abilities, namely communication, daily living skills and socialisation, he functioned respectively at the age equivalent of six years six months, ten years ten months and ten years. He is functionally illiterate. He had certain neurological deficits indicative of brain damage associated with epilepsy. 12 Had this material been available to the learned trial judge when assessing the admissibility of the respondent's statement to the police under ss 85 and 90 of the Evidence Act 1995, his Honour might well have ruled against admission. Be that as it may, following the ruling and an overnight adjournment, the appellant changed his plea to one of guilty. The Crown Prosecutor, as has been mentioned, accepted that plea in full discharge of the indictment with the consequence that the jury were invited to bring in verdicts of not guilty on counts 2 to 5 in the indictment. It follows that those matters must be completely disregarded for the purposes of considering the appropriate sentence of the appellant. 13 In respect of the count to which he pleaded guilty the only factual basis for considering the nature of the events came from the respondent himself, an account which, as the trial judge said, did not exude conviction. I set out below a summary of the material parts of the police interview: [The respondent agreed that he was staying in the girl's house and was sleeping in her bed whilst she slept in her sister's bed]. Q39 All right. Well, can you tell me what your recollection of it is? A I was sleeping in her bed. She come in at some time in the morning it was, and woke me up and it happened from there I think. Mmm. Q40 Yeah, well what actually happened? A I had sexual intercourse with her. Q41 ......when you say intercourse, what do you mean? A (NO AUDIBLE REPLY) Q42 Did, what did, what part of your body did you put into what part of her body? A I, I, well, had, had sex. Q.43 You're talking about your, your penis - - - A Yeah. Q43 - - - into her vagina - - - A. Yeah. Q43 - - -or her anus? A In her vagina I think, I don't know, in her vagina. Q44 You think it was her vagina? A Mm'hm. Q45 Do you remember exactly when this was? A No, I've got a ...... Q46 Do you recall, the 28th November was her 10th birthday. Do you recall whether it was before or after her birthday? A. No, I think it was before, I think. Q47 You think it was before? A Mm, mm. Q48 How, how long before? A I don't really know, I can't really think. Q49 It was sometime during 95, was it? A Mm, yeah. Q50 Sometime last year? A Mm. Q51 Do you remember if it was winter or summer? A I think it might have been summer, I think, or spring, one of the two ...... Q52 Spring, like, so towards the end of the year - - - A. Yeah. Q52 - - - but before the 28th November, you think? A Mm. Q53 Right. So you had intercourse with her. Did you ejaculate? A No, I don't think so, no. Q54 Right. How long did the intercourse go on for? A Not long I don't think, 15 minutes. Q55 OK. Do you remember any conversation that was had between you and Stacey while it was going on? A No, I don't. Q56 So how did she become undressed and how did you get undressed, and that sort of stuff? A Well, I was in bed already, I was, I was still half asleep. Q57 Yeah. So you, you had no clothes on when, like, you'd taken your clothes off when you went to bed, had you? A Yeah. Q58 So are you agreeing with basically what she says except you're saying you didn't put her into your bed, that she actually came in? A I didn't, I didn't put her in the bed, no. Q59 She actually came in. A She came in. Q60 But you did kiss her. Is that right? A Mm. Q61 And you did take her clothes off? A No, I didn't take her clothes off. Q62 How did her clothes get off? A Well, she was in her nightie. Q63 Right. And she didn't have, did she have any panties on under her nightie or - - - A I'd say so, I don't know, yeah, I'd say so. Q64 Well, how did they get off? A I don't know. Q65 You can't remember? A I don't know, I can't remember. 14 It will be seen that the essential elements of the respondent's account is that he was asleep and the complainant came into his bed without any active instigation from him and that they had intercourse, perhaps for fifteen minutes, he thought vaginal. He was half asleep. The mode of expression used by the respondent to give this account, especially when the prompting remarks by the police officer are borne in mind, fully justified his Honour's reservation about it, that it lacked "the quality of conviction". 15 Having regard to the lack of complaint about the incident with which the court was concerned, it is not surprising that the statement of the complainant, which was presumably confined to those charges of which he had been acquitted, was not tendered. It may be that this also explains the lack of any medical evidence about the physical condition of the complainant. The respondent was interviewed by the police on 25 July 1996, approximately one month after the last date of any allegation of sexual intercourse (count 5 in the indictment). It may have been, therefore, that if there was a medical examination, it was considered that it could shed no light on what might have been the position between June and November the previous year. In the result, the learned sentencing judge concluded and I think that it was reasonable for him to do so, that any penetration achieved was minimal. 16 In a detailed and careful judgment, his Honour set out the objective circumstances of the offence and the particular circumstances affecting the respondent. His Honour did not advert to the fact that the offence occurred in the complainant's home but I do not think he overlooked this matter. After all, it was the central fact in the case. However, there was no abuse of a position of trust in the sense that the complainant was in the care of the respondent. 17 His Honour's judgment makes it clear that he accepted, rightly, in my view, that the respondent was not only mildly intellectually disabled but his adaptive behaviour was significantly poorer than his cognitive reasoning so that he did not acquire the social and adaptive skills appropriate to a person of his age, referring to the material which I have already briefly set out. The offender's ability to function in the general community was assessed by Prof Hayes as lower than 99.9 per cent of the population. 18 The submission for the Crown in this court that the mild intellectual disability of the respondent, as found by his Honour, ought not to have moderated the sentence to the extent that a non-custodial sentence was properly imposed is, therefore, based upon a significant over-simplification of the evidence and omits the matter which, to my mind, is the most important element of the respondent's subjective circumstances. It was further submitted by the Crown that the respondent acted with knowledge of what he was doing and of the gravity of those actions, pointing out that his Honour made no express finding to the contrary. To my mind, his Honour's clear and appropriate acceptance of the compelling evidence of significant social and adaptive disability, together with his scepticism as to the extent of sexual misbehaviour admitted by the respondent (except insofar as the plea of guilty, of course, admitted the necessary facts to found the elements of the offence) reflect a real and significant qualification as to the extent to which the appellant understood the gravity of what he had done at least at the time the offence was committed. 19 As his Honour pointed out, this court in Allpass (1993) 72 A Crim R 561 said at 563: Offences against s 66A ordinarily merit and receive custodial sentences ... However, in exceptional cases persons have been given bonds for such offences ... It is impossible rigidly to define the cases which are to be regarded as out of the ordinary. However, to mention one example, offenders suffering from intellectual handicaps have been given bonds. 20 In R v Martin John Letteri (unreported NSW CCA 18 March 1992), Badgery-Parker J with whom the other members of the court agreed, said at 14: ...whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in the manner no different from that which is involved in every sentencing exercise. 21 In R v Dean William Wright (unreported NSW CCA 28 February 1997) this court pointed out, however, that the extent of moderation of an otherwise appropriate sentence when dealing with an offender suffering from a mental disorder will be significantly affected by the extent of the knowledge which the offender had of what he is doing and the gravity of his actions, so that in some cases the moderation need not be great. 22 The Crown further submits that the sentence imposed in this case failed to reflect the objective gravity of the offence: R v Dodd (1991) 57 A Crim R 349. In his Honour's judgment, reference is made to Dodd and to the seriousness of offences under s 66A, which provides for a maximum sentence of up to twenty years penal servitude. His Honour pointed out that whilst the court could not assume that physical damage was suffered by the complainant, he was mindful of the possibility of psychological damage, although there he concluded that the evidence before him did not enable him to infer that psychological damage was a probability. I am of the opinion that this finding was open to his Honour. 23 His Honour concluded that the offender was unlikely to offend in this way or in any cognate way again, relying not only upon his own view of the facts and assessment of the respondent, whom he had seen both give evidence and make his admissions to the police, but also on the clinical opinion of Prof Hayes that the respondent "is not sexually attracted to young children and his sexual orientation is towards adult females of his own age". 24 There were significant practical problems in administering any order for periodic detention as the respondent was unfit to drive and lived some considerable distance from places where such a sentence might be served. 25 We have been provided with a report from Miss Anne Langford, the Statewide clinical coordinator of the Intellectual Disability Program in the Department of Corrective Services dealing with the respondent's case. In particular, she points out that she had spoken to the senior custodial officer responsible for periodic detention and he expressed considerable concern for the safety of a young man who has committed a sexual offence against a child, especially if the person has an intellectual disability and cannot understand the possible consequences of disclosing his offence to other detainees. If this made detention in a periodic detention centre dangerous for him, then a fortiori this would apply to his position in a gaol where he was serving a full time sentence. 26 Because of his disability, community service was also not a practical option. Professor Hayes, who has extensive experience of the prison system and who was a former part time Commissioner of Corrective Services in New South Wales, expressed the opinion that the respondent would be greatly at risk in the prison population. She thought he was likely to be victimised by the other prisoners. He was suffering from serious depression and severe panic attacks which together with his fear of being confined in small places would mean, in her view, that he would be a serious suicide risk in the prison system. It would be essential, in her opinion, that he be in an appropriate unit. 27 Speaking for myself, it was a significant omission in the Crown case that faced with the opinion of Prof Hayes, it was unable to assure the sentencing judge that an appropriate placement of the respondent could be made within the prison system. We are presently informed, in effect, that it is not likely that any suitable accommodation for the respondent is, in fact, available at the present time. This circumstance is, to my mind, together with the other facts of the case, material in determining whether or not a sentence of full time custody was appropriate. It would, in all events, have been a most material factor in determining the length of any such term of imprisonment to give due weight to the circumstance that the respondent would serve the sentence in conditions of significantly greater hardship than the ordinary prisoner. Bearing in mind also the practice of this court in significantly moderating sentences otherwise appropriate when dealing with successful Crown appeals, the imposition of an apparently appropriate term of imprisonment on a person with the characteristics of the respondent would be at once harsh and yet not such as to warrant the exercise of this court's discretion. 28 I do not see any error of law in his Honour's consideration of the appropriate sentence to pass in respect of this respondent. The question is, therefore, whether the sentence itself indicates a failure to appropriately weigh the relevant considerations. Having regard to the nature of the evidence before his Honour and the extent to which at all events this court would need to significantly adjust downwards an otherwise appropriate sentence of full time custody that might be imposed if the appeal were allowed, I do not consider that the Crown has demonstrated that this court should exercise its discretion to allow the appeal. 29 Accordingly, I propose that the appeal be dismissed. 30 SPIGELMAN CJ: I agree and add a few additional observations. His Honour's reasons on sentence are a clear, careful and considered analysis of the full range of relevant issues. The Crown in its appeal has not been able to identify any error in his Honour's reasoning. It seeks to appeal on the basis that the final sentence was manifestly excessive. 31 There are circumstances in which this court will interfere in a sentence on that basis. Nevertheless, the basic principle involved in appeals of this character are well known and need no repetition. This court does not interfere on the basis that the sentence was in some manner insufficient. The degree of insufficiency has to reach the level that the court is able to draw the inference that some error of principle occurred in the process of exercising the sentencing discretion. His Honour, as he expressed, was well aware that a non-custodial sentence for an offence under s 66A was exceptional. 32 In light of his Honour's careful analysis, and for the reasons given by Adams J, I agree that the sentence in fact imposed was open to his Honour to impose and, accordingly, there is no basis for interfering with the sentence. 33 ABADEE J: I agree with the reasons of Adams J and his proposed order. I agree also with the additional matters referred to by the Chief Justice. However, I wish to add a few remarks of my own. In the circumstances of this particular case his Honour was called upon to perform a sentencing task which particularly involved the matter of balancing relevant factors. Adams J has referred to those factors and I do not need to repeat them. 34 His Honour performed his task in a careful way. He clearly gave, as he said, at p 13 of his sentencing reasons, much consideration to the matter. It also appears from his Honour's sentencing reasons that his Honour recognised that a case of this nature would in the ordinary course of events attract a full time custodial sentence unless the facts and circumstances put the case into an exceptional category. Clearly, his Honour thought that this was an exceptional case. He said so, not once but on several occasions. Indeed he said that the facts were unusual. He said this at p 2 and he repeated that view at p 11 of his sentencing reasons, describing the facts as being out of the ordinary. Again at p 13, he described the case as being one which was no ordinary case. 35 The task of sentencing was complicated by the fact that the respondent suffers from a mental condition which has been described by Adams J. Consequently, his Honour needed to explore the sentencing options that were available having regard, amongst other things, to the matters that Adams J has referred to in respect of the respondent's mental situation. His Honour carefully considered the matter of periodic detention and there were valid reasons for deciding that was not an appropriate penalty. For similar reasons, his Honour excluded a community service order. His Honour paid due regard to the fact that there were unusual circumstances which would, perhaps, make it difficult for the full time custodial option to be exercised. Thus, his Honour did go about the task carefully of considering the relevant options before ultimately concluding that a bond was an appropriate one. I am not prepared to say that his Honour's sentencing discretion and his reasons for his conclusion miscarried in any way. 36 Two other matters that I would mention are: the facts of the case were objectively serious particularly, in my view, because there was a young girl under the age of ten involved in the offence and that the girl at the time of the commission of the offence was in her own home and was entitled to expect to be secure and safe within the four walls of that home. Further, I am of the view that the respondent did take advantage of a position of trust and friendship with the father and the complainant and procured the situation under which he was permitted into the home where he committed the offence upon the victim. Those matters, I am sure, were considered by his Honour and I would not conclude that they were not. 37 One other matter that I would specifically refer to in this particular case, which I believe was a complication for the Crown in respect of its appeal. This was that the Crown appeal itself was in turn based upon a prosecution which was dependent upon certain admissions being obtained from the respondent in what I would regard as being, to use the neutral expression "questionable circumstances". Whether such matter is one to be treated as being relevant to the objective circumstances or as a matter going to the exercise of discretion in this appeal, really at the end of the day does not matter; it has not been suggested that such would be an irrelevant matter in determining this appeal one way or the other. I consider it appropriate to be taken into account in disposing of this appeal. I would conclude that the sentence was not manifestly inadequate and I would not interfere with it. 38 I agree with the order proposed by Adams J. 39 SPIGELMAN CJ: The order of the court is the appeal is dismissed. **********