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Court of Criminal Appeal 3 August 2006

Gorrick v Regina

[2006] NSWCCA 232

Sexual offences
CRIMINAL LAW AND PROCEDURE EVIDENCE HEARD ON APPEAL ALLEGATIONS REJECTED SENTENCE NO DEPARTURE FROM APPROPRIATE PATTERN IMPOSITION NOT EXCESSIVE

Citation: Gorrick v Regina [2006] NSWCCA 232
Court: New South Wales Court of Criminal Appeal
Date: 3 August 2006
Judge(s): Grove J (primary); Simpson J and Bell J (agreeing)

Background

The appellant was tried in the District Court before McGuire DCJ and a jury on nine counts relating to sexual offences against a complainant who, at the relevant time, was aged between ten and sixteen years and under his authority. The appellant was acquitted on two counts of indecent assault but convicted on seven counts of sexual intercourse with a person above ten and under sixteen years. He did not deny the sexual relationship but contested at trial when the first act of intercourse occurred, which was central to the question of the complainant's age at that time.

Following the convictions, the trial judge became unavailable and Williams DCJ imposed sentence in November 2004. At the same sentencing hearing, the appellant was also sentenced for an unrelated indecent assault offence involving a different victim. The total effective sentence was six years, with a non-parole period of four years and six months.

The appellant appeared for himself in the Court of Criminal Appeal, challenging both his conviction and the severity of his sentence. He submitted a large volume of written material, much of which the court treated as submissions rather than evidence.

  • Whether the appellant's trial counsel displayed flagrant incompetence in the preparation and conduct of the trial, depriving him of a fair chance of acquittal and causing a miscarriage of justice
  • Whether the trial judge erred in failing to exclude the appellant's ERISP (electronically recorded interview with a suspected person) under section 138 of the Evidence Act 1995
  • Whether the sentences imposed by Williams DCJ were excessive, including the partial accumulation of the unrelated offence

Decision

The Court rejected the incompetent representation ground. Evidence was received on appeal in connection with this ground, but the allegations against trial counsel were not substantiated. The Court noted that, notwithstanding the volume of material the appellant had submitted, the appeal could be resolved on a relatively compact set of considerations.

On the ERISP ground, the Court held that police interviewers were not obliged to disclose to a suspect the extent of their existing knowledge before or during an interview. The challenge to admission of the interview therefore failed.

On sentence, the Court applied the principle from R v Simpson (2001) 53 NSWLR 703, which requires the Court of Criminal Appeal to form a positive opinion that some other sentence is warranted in law before it can intervene. No relevant error in Williams DCJ's sentencing exercise was identified. The individual sentences and the overall effective sentence fell comfortably within the proper exercise of sentencing discretion. The partial accumulation for the unrelated offence was characterised as mild in the circumstances, and no lesser sentence was considered warranted.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but that appeal also dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that an allegation of flagrant incompetence by trial counsel, advanced as a ground of appeal, will be assessed on evidence received by the appellate court and will not succeed unless the allegations are substantiated.
  • Police interviewers conducting an ERISP are not bound to disclose to a suspect the state of their existing knowledge before or during the interview. The failure to do so does not, of itself, ground exclusion of the record of interview under section 138 of the Evidence Act 1995.
  • In dismissing the sentence appeal, the Court reiterated the high threshold established in R v Simpson: the Court of Criminal Appeal must form a positive opinion that some other sentence is warranted before it may intervene, and mere disagreement with the sentencing judge's exercise of discretion is insufficient.
  • Where a further offence involving a different victim is sentenced on the same occasion as the primary offences, partial accumulation of the resulting sentence is not necessarily excessive and falls within the sentencing court's discretion.
  • No departure from the appropriate sentencing pattern was established in respect of any of the individual counts or the effective total sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1A), 61L, 66C(2), 77
- Evidence Act 1995 (NSW), s 138

Cases:
- Nudd v The Queen (2006) 80 ALJR 614
- R v MJR (2002) 54 NSWLR 368
- R v Simpson (2001) 53 NSWLR 703