AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 2 July 1999

Regina v Gould

[1999] NSWCCA 177

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCING APPEAL AGAINST SEVERITY SENTENCES 'MANIFESTLY EXCESSIVE'

Citation: Regina v Gould [1999] NSWCCA 177
Court: New South Wales Court of Criminal Appeal
Date: 2 July 1999
Judge(s): Newman J, Bell J

Background

The applicant pleaded guilty in the District Court at Nowra to one count of indecent assault and one count of sexual intercourse with a child aged between 10 and 16 years by a person in authority. The victim was his stepdaughter, whom he had known since she was approximately 18 months old. The offending took place over a period from around September 1983 to September 1987, when the victim was aged between approximately 12 and 15 years.

District Court Judge Twigg sentenced the applicant to a fixed term of two years penal servitude for the indecent assault, and seven and a half years penal servitude (comprising a minimum term of five years and an additional term of two and a half years) for the sexual intercourse count. Two further offences of carnal knowledge were taken into account on a schedule.

The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence on count 2 was manifestly excessive and that the structure of the sentence was deficient in light of the special circumstances his Honour had found to exist.

  • Whether the sentence of seven and a half years for the sexual intercourse count was manifestly excessive, having regard to the objective seriousness of the offending and the applicant's subjective circumstances
  • Whether the sentencing judge gave adequate weight to the pleas of guilty, the applicant's age, mental and physical health, good character, contrition, and prospects of rehabilitation
  • Whether the sentencing judge erred in the structure of the sentence by failing to provide a lesser minimum term in light of findings of special circumstances

Decision

The Court of Criminal Appeal found no error in the sentencing judge's assessment of objective seriousness. The offending involved a stepfather sexually abusing a child who was entitled to look to him for protection. The Court confirmed that the objective features of count 2, viewed alone, justified a characterisation of the offence as towards the higher end of the range of seriousness, and that the two schedule offences were required to be reflected in the sentence imposed.

On the plea of guilty, the Court accepted that the sentencing judge had expressly and repeatedly taken those pleas into account, including their role in sparing the victim the trauma of giving evidence. The Court found no error in the judge's observation that conviction was "always inevitable," understanding that remark as a reference to the applicant's prior admissions rather than a discounting of the utilitarian value of the guilty pleas.

Regarding the applicant's health, the Court noted that there was no evidence before the sentencing judge that incarceration would be more than usually burdensome given the medical history. The principles from Regina v Vachalec governed the approach, and the Court found those principles had been correctly applied. As to good character, the Court noted that in cases of this kind offenders commonly present as otherwise of good character, which diminishes the weight that consideration ordinarily carries.

The Court concluded that no error had been demonstrated in the sentencing judge's approach, and that the sentence did not fall outside the upper limit of the range reasonably open. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that sexual offending by a stepparent against a child in the family home is treated as particularly serious, reflecting the community expectation that a person in a position of parental trust will protect rather than exploit a child.
  • A sentencing court is required to reflect schedule offences in the sentence imposed on the principal count, even where the maximum penalty is determined by the indicted offence alone.
  • No error was established merely because a sentencing judge found that conviction was "always inevitable," provided the judge separately and expressly credited the guilty pleas for their utilitarian benefits, such as sparing witnesses and saving public resources.
  • Where an offender in a case of child sexual abuse also presents as a person of otherwise good character, that factor carries diminished weight compared with cases of a different kind (following Regina v Muldoon).
  • In dismissing the appeal, the Court applied the principle that an appellate court will only intervene where the sentence falls outside the range reasonably open to the sentencing judge, not merely because a different outcome might also have been available.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(2)
- Criminal Procedure Act 1986 (NSW), s 21
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- Regina v Bamford (unreported, CCA, 23 July 1991)
- Regina v Dent (unreported, CCA, 14 March 1991)
- Regina v Morgan (1993) 70 A Crim R 368
- Regina v Vachalec (1981) 1 NSWLR 351
- Regina v Muldoon (unreported, NSWCCA, 13 December 1990)