Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Morrison v R [2014] NSWCCA 199 Hearing dates: 15.09.2014 Decision date: 01 October 2014 Before: Hoeben CJ at CL at [1] Fullerton J at [37] Adamson J at [38] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - two counts of detain for advantage in circumstances of special aggravation - two young men detained for different periods by applicant and her partner and subjected to substantial physical and psychological abuse - high level of objective seriousness and moral culpability - sentences not shown to be manifestly excessive - level of accumulation within the sentencing discretion of judge - appeal dismissed. Legislation Cited: Crimes Act 1900 - s59(1),s61, s83(3) Criminal Appeal Act 1912 - s59(1) Cases Cited: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 Mill v The Queen [1988] HCA 70;166 CLR 59 Postiglione v R [1997] HCA 26; 198 CLR 296 R v Hammoud [2000] NSWCCA 540 R v Jarrold [2010] NSWCCA 69 R v Speechley [2012] NSWCCA 130 Category: Principal judgment Parties: Paula Diane Morrison - Applicant Regina - Respondent Crown Representation: Counsel: Mr P Doyle - Applicant Ms N Adams SC - Respondent Crown Solicitors: G Breton - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2010/394112; 2010/285345 Decision under appeal Date of Decision: 2013-05-17 00:00:00 Before: Zahra SC DCJ File Number(s): 2010/394112; 2010/285345 Judgment 1HOEBEN CJ at CL: Offences and sentence On 8 August 2012 the applicant pleaded not guilty to all counts on an indictment containing 20 counts. On counts 1 and 2 she was jointly charged with her partner, Mervyn Ferry. Those charges were: Count 1 - That they detained JA for advantage between 1 May 2007 and 30 August 2009 in circumstances of special aggravation, contrary to s83(3) of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment; and Count 2 - That they detained NB for advantage between 1 February 2010 and 10 August 2010 in circumstances of special aggravation, contrary to s83(3) of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment. 2The circumstances of special aggravation within s83(3) of the Crimes Act 1900 were that the offenders acted together to commit the offences and secondly that they caused actual bodily harm to each victim. Counts 3, 5, 7, 8, 9 and 10 were charges of assault occasioning actual bodily harm upon JA, contrary to s59(1) of the Crimes Act 1900 charged in the alternative to Count 1 against the applicant and Counts 12, 14, 16, 19 and 20 were various assaults upon NB charged contrary to either s61 or s59(1) of the Crimes Act 1900 in the alternative to Count 2 against the applicant. At the end of the Crown case, Counts 11 and 13 were the subject of verdicts by direction. 3On 17 October 2012 the jury returned verdicts of guilty on Counts 1 and 2 against both the applicant and her co-offender in full satisfaction of the indictment. 4On 17 May 2013 the applicant was sentenced to an effective sentence of 13 years imprisonment with a non-parole period of 9 years commencing on 27 August 2010 and expiring 26 August 2019. The balance of term expired on 26 August 2023. This effective sentence comprised the following two sentences: Count 1 - A non-parole period of 7 years commencing 27 August 2010 and expiring 26 August 2017 with a balance of term of 4 years expiring 26 August 2021. Count 2 - A non-parole period of 7 years imprisonment commencing 27 August 2012 and expiring 26 August 2019 with a balance of term of 4 years expiring 26 August 2023. 5The applicant seeks leave pursuant to s5(1)(c) of the Criminal Appeal Act 1912 to appeal the total sentence imposed on her by Judge Zahra SC in the Sydney District Court on 17 May 2013 on the following grounds: Ground 1 - The sentence imposed is manifestly excessive. Ground 2 - The partial accumulation of 2 years of Count 2 and Count 1 was manifestly excessive infringing the totality principle. Factual Background 6The trial in this matter proceeded from 8 August 2012 until 17 October 2012. In the proceedings on sentence, the Crown tendered without objection a 30 page document comprising a summary of the evidence at trial. The sentencing judge set out the findings of fact upon which the applicant was to be sentenced in some detail in his remarks on sentence at 3-21. 7In summary, the Crown case was that the applicant and her partner acted together during two separate time periods to detain two young men for the advantage of exercising psychological control over them. During the periods of their respective detentions, they caused actual bodily harm to each of the victims. 8The background to the offences is that the two victims JA (born in 1988) and NB (born in 1984) were friends with the older daughters of the applicant. JA resided with the applicant and her partner from April 2007 until 28 August 2009 and NB resided with the applicant and her partner between 1 February and 10 August 2010. Both victims gave evidence that while residing with the applicant and her partner, they were subjected to ongoing physical and mental abuse of various kinds. They were subjected to regular violence, threats, starvation and other mistreatment to compel them to support the daily running of the house and to remain living there. The applicant and her partner were able to overwhelm the victims and exercise full psychological control over them, such that the victims were virtually enslaved. 9No useful purpose would be served by setting out in detail what each of the victims was subjected to. Suffice it to say that the details concerning JA are set out in the sentence judgment at [3] - [10] and those concerning the victim NB, at [11] - [20]. I incorporate those details into this judgment. 10JA came under the influence of the applicant and her partner in April 2007 when he was aged 18. At this time he weighed about 70 kilograms. Over a period of time his savings account Access Card and PIN number were removed from him and he lost financial independence. The physical conditions under which he was living gradually deteriorated. From approximately September 2007 he commenced to be subjected to physical assaults from both the applicant and her partner. 11On many occasions he was assaulted up to ten times per day. JA said that over time the portions of food he was given reduced and the applicant told him he was not allowed to eat unless he had finished all the chores in the house allocated to him. He said that he did not ask for more food because he was scared. Similarly when asked why he did not use a telephone to contact his family he said that he did not do so because he was scared of both offenders. JA said that over time he continued to miss Centrelink interviews because of his injuries and when he did attend the Centrelink office, he was accompanied by the applicant or her partner. 12Towards the end of his time at the applicant's residence JA was compelled to make false admissions of wrongdoing, both orally and in writing. The circumstances of JA leaving those premises in August of 2009 were that he had received a severe beating from the applicant's partner and another male after which he was then taken by the applicant's partner to a refuge. His belongings were placed in a shopping trolley with him. 13At the refuge, JA told his story and the police were contacted. JA was then taken to Bathurst Hospital where he was interviewed by police and a number of photographs were taken. The photographs were in evidence at trial and in the appeal. They show open wounds, malnutrition and the indicia of JA having received a severe beating. He weighed 45kgs at the time. 14JA suffered injuries to both his ears so that surgery was required. One of his ears will remain permanently disfigured. There were injuries and cuts to a hand as a result of being struck with a breadknife and a metal bar. There were injuries to his lip, nose and face as a result of being frequently struck in those places. There were injuries to his legs and knees, resulting in swelling and pain that restricted his movement. These injuries were due to being hit with implements and kicked. Generally, his body was severely bruised and abrased and the damage to two of his teeth was such that they had to be removed. 15NB was aged 26 when he commenced living with the applicant and her partner in February 2010. He weighed 56kgs at the time. He was subjected to similar treatment to that experienced by JA, except that the beatings which he endured were more severe and there were elements of what could only be characterised as sadism in the way in which he was treated. He was so overborne by the mistreatment which he received that he was prepared to admit, both orally and in writing, to wrongdoing which he had not committed. On 9 August 2010 the applicant's partner accused him of "perving" on one of the applicant's daughters and severely beat him. Somewhat bizarrely, NB was then taken by the applicant's partner to the nearest police station where he was falsely accused of being a paedophile in relation to his conduct towards the young children who were residing in the house. 16At that time police observed that he had a number of severe injuries, appeared unkempt and smelt of faeces and urine from sleeping in the children's cubbyhouse without access to toilet facilities. He was carrying the handwritten false confessions that the applicant had compelled him to sign. The police officers were so concerned about NB's condition that they called an ambulance and he was taken to Bathurst Hospital where he remained for over four weeks. At the time he was admitted to the hospital, he weighed 43kgs. Photographs taken of him at the time show serious physical injuries and severe malnutrition. 17The injuries diagnosed included injuries to both his ears, with the left ear being deformed. There were multiple fractures to the facial bones, including his nose, eye socket and lower jaw. There were multiple rib fractures (14 fractures to 10 ribs) and multiple fractures of his lumbar spine. Some of the fractures to his ribs were old (more than 3 months old) and some were in the process of healing (3-6 weeks old). Others were recent (2-4 weeks old). There were soft tissue injuries across his back and shoulders and internal injuries to his lungs. There was bruising to both eyes, cuts to his eyebrow and cuts to his nasal bridge. There were injuries to both legs and knees resulting in swelling, pain and restriction of movement. Both eyes were infected. 18As well as physical coercion, the applicant and her partner exerted psychological control over the two victims in the following ways: * Isolating the victims from their normal support of families and friends. * Compelling the victims to perform daily household chores under threat of violence. * Making false complaints of their wrongdoing. * Subjecting them to repeated acts of violence which caused significant injury. * Subjecting them to ongoing threats. * Giving them little nourishment. * Controlling their finances. * Compelling them to falsely admit to wrongdoing and misconduct. Proceedings on sentence 19Having set out the facts of the offending in considerable detail, his Honour considered the applicant's subjective case. She was born in 1964 and left school in year 10. She had an unhappy childhood and illicit drug use was part of her lifestyle from the age of 17. This included daily heroin use until the age of 40. She had been on the methadone program for over 20 years. She was on social security benefits for most of her adult life and had six children to three different fathers. At the time of sentence, the oldest was aged 31 and was caring for the two youngest children, aged 7 and 11. 20A psychological report described the applicant as suffering long standing depression, anxiety and low self-esteem, dating back to childhood. She did not present clinically with symptoms of a major psychiatric disturbance. 21His Honour assessed the objective seriousness of the offending as high. In reaching this conclusion, his Honour had regard to the maximum penalty of imprisonment for 25 years and to what he regarded as the high level of moral culpability of the applicant. His Honour had regard to the length of the period of detention, the circumstances of the detention, the extent to which fear was occasioned to the victims, the vulnerability of the persons being detained and the purpose of the detention. His Honour determined that the purpose was psychological control of the victims, and found that a consideration of all of those factors demonstrated the high level of objective seriousness of the offences. 22It was against that background that his Honour imposed the sentences previously referred to. THE APPEAL Ground 1 - The sentence imposed is manifestly excessive. 23The applicant did not challenge the sentence imposed in respect of Count 1 and accepted that it was an appropriate exercise of the sentencing discretion. It was the sentence imposed for count 2 which the applicant challenged. 24The applicant noted that the penalty imposed for both counts was the same, i.e. a head sentence of 11 years with a non-parole period of 7 years. She submitted that this was inappropriate in the circumstances of the case. She accepted that both victims suffered assaults which left them injured and both were left in a poor state of health when they were released from their detention. She submitted that there was a real difference in the length of each detention. In the case of JA it was over 2 years and in the case of NB it was just over 6 months. By reference to what was said by McClellan CJ at CL (Johnson and Hammerschlag JJ agreeing) in R v Speechley [2012] NSWCCA 130 at [54] - [64] the gravamen of this offence was the "detention". It followed, so the applicant submitted, that the difference in the periods of detention in this case made it inappropriate for the same sentence to be imposed for Count 2 as imposed for Count 1. 25This submission is misconceived. There was justification for the approach which his Honour took. Although the period of detention in relation to count 2 was less than that in count 1, the violence and psychological control directed towards NB was significantly greater than that experienced by JA. His physical injuries when taken to hospital were far greater than those of JA and are vividly shown in the photographs taken at the time. 26It is also significant that this was the second offence in point of time. The applicant clearly learned nothing from the state of JA when he was released from detention. On the contrary, there was a substantial escalation in the mistreatment of NB while he was detained in the home. There was no evidence of any remorse or contrition for her treatment of NB. 27This ground of appeal has not been made out. Ground 2 - The partial accumulation of 2 years of count 2 on count 1 was manifestly excessive infringing the totality principle. 28The applicant submitted that the effective sentence of imprisonment for 13 years with a non-parole period of 9 years was excessive and offended the principle of totality. The applicant accepted that some level of accumulation was necessary but submitted that 1 year rather than 2 would have been appropriate. 29The applicant submitted that what was said in Postiglione v R [1997] HCA 26; 198 CLR 296 by Dawson and Gaudron JJ at 5, was appropriate to this case: "... the totality principle serves to ensure that an offender is not subjected to "'a crushing sentence' not in keeping with his record and prospects" ..." The applicant submitted that the effective sentence in this case had resulted in a "crushing sentence" of that kind. 30In considering this submission the statement of principle by Wilson, Deane, Dawson, Toohey and Gaudron JJ in Mill v The Queen [1988] HCA 70;166 CLR 59 at 63 needs to be kept in mind: ""The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong', 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'." 31As that statement of principle makes clear, the decision whether to accumulate sentences is an exercise within the discretion of the sentencing judge. There is no general rule of law that determines whether a sentence must be concurrent or consecutive: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 per Howie J (with whom Adams and Price JJ agreed) at [47]. As Howie J (with whom McClellan CJ at CL and Harrison J agreed) observed in R v Jarrold [2010] NSWCCA 69 at [56] concurrency should not be imposed: "56 ... simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct ... The question to be asked is, can the sentence for one offence encompass the criminality of all the offences?" 32Simpson J made observations to similar effect in R v Hammoud [2000] NSWCCA 540 at [7]: "There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong." 33These two offences were not closely connected. Each offence occurred over a different period of time and related to a different victim. Implicit in the applicant's concession that some period of accumulation was appropriate is an acknowledgement that the sentence on Count 1 could not encompass the criminality of both offences. His Honour in the exercise of his sentencing discretion considered 2 years to be an appropriate method of accumulation. No error is disclosed in that exercise of his Honour's discretion. 34The applicant pleaded not guilty and showed no remorse. Although her subjective features indicated a troubled and dysfunctional childhood, there was no material before his Honour that would materially reduce the applicant's moral culpability for these offences. Her prospects of rehabilitation were not hopeful and she had a lengthy criminal record. His Honour had regard to all of the relevant factors in arriving at the appropriate sentence and an appropriate level of accumulation. 35This ground of appeal has not been made out. Conclusion 36There is no complaint as to the sentence on Count 1 and it is conceded that some period of accumulation was applicable. The applicant in effect only received an extra 2 years non-parole period for the very serious criminality caught by Count 2. The orders which I propose are: (1)Leave to appeal granted. (2)Appeal dismissed. 37FULLERTON J: I agree with Hoeben CJ at CL. 38ADAMSON J: I agree with Hoeben CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 October 2014