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Court of Criminal Appeal 19 October 2001

Regina v Percival

[2001] NSWCCA 429

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE SEXUAL OFFENCES AGAINST YOUNG CHILDREN LATE PLEAS OF GUILTY NO SPECIAL POINT OF PRINCIPLE

Citation: Regina v Percival [2001] NSWCCA 429
Court: New South Wales Court of Criminal Appeal
Date: 19 October 2001
Judge(s): Wood CJ at CL; Grove J

Background

The applicant was a car detailer who pleaded guilty to one count of sexual intercourse with each of two juvenile complainants, both of whom were his nieces by different family structures, aged approximately 12 to 14 and 11 to 13 respectively at the time of the offences. The pleas were entered mid-trial, after one complainant had already given her evidence-in-chief. Two further counts of aggravated indecent assault against a third girl, aged 11, were taken into account on a Form 1 (a document allowing a sentencing court to consider additional matters without separate convictions being recorded).

The sentencing judge, Goldring DCJ in the District Court, imposed six years imprisonment on each count with a non-parole period of four years, declining to find special circumstances that would justify adjusting that proportion. The applicant sought leave to appeal on the grounds that the sentences were manifestly excessive.

  • Whether the sentencing judge erred in his treatment of the applicant's prior good character, particularly in light of the High Court's decision in Ryan v The Queen
  • Whether the late guilty pleas warranted greater leniency, both as a utilitarian benefit to the justice system and as evidence of contrition
  • Whether the sentences were disproportionately high compared with published Judicial Commission statistics
  • Whether the sentencing judge erred in declining to find special circumstances justifying a departure from the standard non-parole period proportions

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error warranting interference with the sentences imposed.

On the question of good character, Grove J distinguished this case from Ryan v The Queen. In Ryan, the High Court found error where a trial judge had completely discounted good character on the basis that a priest was expected to behave well. Here, the sentencing judge had described prior good character as "not particularly relevant" rather than irrelevant altogether, and Grove J concluded it could not be established that his Honour had given it no weight at all.

The Court found the late guilty pleas carried limited mitigating weight. From a utilitarian perspective, the trial had already been fully prepared and was underway before the pleas were entered. On the question of contrition, a Probation and Parole report recorded that the applicant denied committing any offence and said he entered the pleas only on legal advice. The Court observed it would be unsurprising if the sentencing judge had not regarded the applicant as contrite.

On the statistical sentencing range argument, Grove J reiterated a principle he had expressed previously: if sentences are persistently drawn toward the middle of statistical ranges, the upper end of those ranges will inevitably fall over time through simple arithmetic rather than legal principle. It followed that sentences toward the upper end of the published range were not necessarily erroneous for serious offending. On special circumstances, the Court treated the absence of a finding of special circumstances as a factual conclusion open to the sentencing judge, and found no basis to disturb it.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge who describes prior good character as "not particularly relevant" has not necessarily given it no weight; that characterisation falls short of the error identified in Ryan v The Queen, where good character was disregarded entirely on a category-based rationale.
  • Late guilty pleas entered after a trial has begun carry reduced utilitarian value, and where an offender simultaneously denies the conduct underlying those pleas, the pleas do not readily demonstrate contrition.
  • A finding of special circumstances (or their absence) is a finding of fact, and the Court of Criminal Appeal confirmed it will not intervene unless the evidence demonstrates that finding was wrong.
  • Statistical sentencing ranges published by the Judicial Commission do not define the upper limit of appropriate sentences; the Court of Criminal Appeal reaffirmed that the true sentencing range extends from a non-custodial sentence up to the maximum prescribed by Parliament.
  • No special point of principle arose from this decision; it turned on the application of established sentencing principles to the particular facts.

Legislation and Cases Referenced

Cases:
- Ryan v The Queen (2001) 75 ALJR 815 (High Court of Australia)

Legislation:
No specific legislation was cited in the text provided.