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Court of Criminal Appeal 16 July 2009

John Goss v R

[2009] NSWCCA 190

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE NO ERROR ASSERTED IN SENTENCE FRESH EVIDENCE

Citation: John Goss v R [2009] NSWCCA 190
Court: New South Wales Court of Criminal Appeal
Date: 16 July 2009
Judge(s): Hodgson JA, Howie J, Fullerton J

Background

The applicant, a self-funded retiree from Victoria, was sentenced in the District Court on 7 November 2008 for two historical child sexual assault offences committed in the 1970s and 1980s. He received a total sentence requiring him to serve a minimum of 8 months in custody, with a 4-month parole period to follow.

On release to parole, the applicant was required to reside in New South Wales, despite his normal residence being in Victoria with his wife of 43 years. He applied to transfer his parole to Victoria under the Parole Orders (Transfer) Act 1983, but the Commissioner of Corrective Services refused, relying on a general instruction that no registrable offender included under child protection legislation would be eligible for interstate transfer.

Appearing in person, the applicant sought leave to appeal against his sentence. His submissions raised personal hardship grounds, including financial strain from maintaining two residences, disruption to his medical care (including a cardiology condition, diabetes management, and a planned knee replacement), and the desire to be reunited with his wife.

  • Whether the Court of Criminal Appeal had jurisdiction to review the administrative decision refusing transfer of the applicant's parole to Victoria
  • Whether the sentence itself contained any error warranting appellate intervention
  • Whether this was an exceptional case justifying the Court interfering with an otherwise sound exercise of sentencing discretion

Decision

The Court acknowledged that it had no jurisdiction to review the Commissioner's administrative decision refusing the interstate parole transfer. That question, including whether the Commissioner's instruction was within power or whether the applicant properly fell within the prohibition, was outside the Court's remit. Any remedy would need to be sought from the executive.

On the sentence itself, the Court found no error in the sentence imposed by Boulton DCJ. Howie J noted that while he himself might have imposed a fixed term in the circumstances, it was plainly open to the sentencing judge to impose a parole period. The applicant had not identified any legal error in the sentence.

Howie J expressed clear sympathy for the applicant, observing that he appeared to have served his sentence in the belief he would return to Victoria on release, and that the general prohibition caught him without any apparent public policy justification given his individual circumstances. The Court noted there was no suggestion the applicant posed any current risk to children. Nevertheless, these circumstances did not rise to the rare and exceptional level required to justify interfering with an otherwise unimpeachable sentencing discretion. The applicant's complaint was characterised as one of inconvenience for a period of only four months, and the outcome was not found to be unduly harsh or unreasonable.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed it has no jurisdiction to review administrative decisions made by the Commissioner of Corrective Services, including instructions refusing the interstate transfer of a parole order.
  • A sentence appeal requires the applicant to identify a legal error in the sentence imposed; personal hardship arising from post-sentence administrative decisions does not constitute such an error.
  • Interfering with an otherwise sound exercise of sentencing discretion requires rare and exceptional circumstances; inconvenience during a short parole period, without compelling medical necessity, did not meet that threshold here.
  • Under the Commissioner's instruction purportedly made under s 235B of the Crimes (Administration of Sentences) Act 1999, registrable offenders covered by child protection legislation were treated as categorically ineligible for interstate parole transfer, regardless of individual circumstances.
  • In dismissing the appeal, Howie J noted that the remedy for a person aggrieved by such an administrative prohibition lies with the executive, not with the appellate courts.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW) 1900 (now repealed), ss 76, 76A
- Parole Orders (Transfer) Act 1983
- Crimes (Administration of Sentences) Act 1999, s 235B

Cases:
- R v Cartwright (1999) 17 NSWLR 243
- R v Vachalec [1981] NSWLR 353
- R v Ehrenburg (NSWCCA, unreported, 14 December 1990)
- R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
- R v Keir [2004] NSWCCA 106