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District Court 26 October 2012

R v Gurung

[2012] NSWDC 272

Fraud & dishonestyPublic order & justice offences
CRIMINAL SENTENCE FALSE ACCUSATION OF SEXUAL ASSAULT WITHDRAWALS OF PLEAS

Citation: R v Gurung [2012] NSWDC 272
Court: District Court of New South Wales
Date: 26 October 2012
Judge: King SC DCJ

Background

The offender faced sentence for two offences committed in late October and early November 2010. The first was making a false accusation of sexual assault against the complainant (ST), contrary to section 314 of the Crimes Act 1900. The second was entering a building with intent to intentionally damage ST's property, contrary to section 114(1)(d) of the same Act. Both offences carry a maximum penalty of seven years imprisonment.

The matter had an unusually protracted history. The offender's trial commenced in April 2012, and after the jury was empanelled and the complainant had given evidence, the offender entered guilty pleas to both counts. The court accepted those pleas and recorded findings of guilt in accordance with section 157 of the Criminal Procedure Act 1986, meaning the findings had effect as if they were jury verdicts.

Sentence proceedings were then delayed significantly. The offender's legal representatives withdrew, new solicitors filed a motion to withdraw the guilty pleas, and an application for the sentencing judge to recuse himself was made and refused. An appeal to the Court of Criminal Appeal on the recusal question was unsuccessful. The Court of Criminal Appeal, however, had not been informed that the pleas had been entered after the jury was empanelled and that section 157 applied. Once that was clarified, no further application to withdraw the pleas was pursued.

  • Whether the court had jurisdiction to entertain an application to withdraw the guilty pleas, given they were entered after the jury was empanelled and the court had followed the procedure in section 157(2) of the Criminal Procedure Act 1986
  • What sentence was appropriate for the false accusation offence and the enter-building-with-intent offence, having regard to objective seriousness, subjective circumstances, remorse, contrition, and rehabilitation
  • Whether special circumstances existed justifying a variation to the standard statutory ratio between non-parole period and additional term, given the offender's age, lack of prior custodial history, and the likelihood of deportation

Decision

On jurisdiction to withdraw the pleas: King SC DCJ held that, because both pleas were entered after the jury had been empanelled and the court had followed the procedure set out in section 157 of the Criminal Procedure Act 1986, the findings of guilt had the same effect as jury verdicts. That statutory consequence meant the court had no jurisdiction to entertain any application to withdraw the pleas. The attempt to do so was therefore a nullity, and the matter proceeded to sentence on that basis.

On objective seriousness: The false accusation offence was treated as the principal offence and assessed as falling within a moderate range of seriousness. The offender had fabricated a detailed, believable account of sexual assault, made a formal complaint to police, and maintained the false account through an ERISP interview. The complainant was subjected to police investigation and suffered serious personal and professional consequences. The enter-building-with-intent offence was assessed as being at the lower end of seriousness.

On subjective circumstances: The offender was young and had no prior criminal history. A psychiatric report and references were tendered. However, His Honour found the delay in the proceedings, the multiple applications and appeals, and the withdrawal of instructions by her legal representatives to be inconsistent with genuine remorse and contrition. That assessment weighed against a more substantial discount for those factors.

On special circumstances and sentence: His Honour found special circumstances, notwithstanding the likelihood of deportation upon parole. The offender's age and the fact that this would be her first period of imprisonment justified a reduction in the non-parole period. The sentence for the enter-building offence was a fixed term of three months, concurrent with the principal sentence. The false accusation offence attracted a total term of two years with a one-year non-parole period.

Orders Made

  • Convicted on both offences
  • Enter building with intent to commit an indictable offence: fixed term of three months imprisonment, dating from 8 June 2012 and expiring 7 September 2012
  • Making a false accusation with intent: two years imprisonment with a non-parole period of one year, dating from 8 June 2012 and expiring 7 June 2013; additional term (balance of sentence) of one year commencing 8 June 2013 and expiring 7 June 2014
  • Both sentences to be served concurrently
  • Parole release ordered on 7 June 2013

Key Takeaways

  • Under section 157(2) of the Criminal Procedure Act 1986, where a court accepts a guilty plea after a jury has been empanelled and records a finding of guilt in accordance with that provision, the finding has the same effect as a jury verdict. A court has no jurisdiction to later entertain an application to withdraw such a plea.
  • The District Court confirmed that the procedural history of a matter, including multiple applications, appeals, and changes of legal representation, is relevant to the assessment of an offender's remorse and contrition at sentence.
  • Where an offender makes a detailed false accusation of sexual assault through formal police channels, and the complainant suffers tangible personal and professional harm as a result, the offence is likely to be assessed as falling within a moderate range of seriousness for sentencing purposes.
  • Special circumstances justifying a variation to the standard non-parole period ratio can be found even where deportation is likely, if the offender's age and absence of prior custodial history otherwise warrant an extended rehabilitative period.
  • The Court of Criminal Appeal's earlier refusal to interfere with the recusal decision was noted to have proceeded without full information about the section 157 procedure having been followed, underscoring the importance of complete disclosure of procedural history in appellate applications.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 114(1)(d), 314
- Criminal Procedure Act 1986 (NSW), s 157 (including s 157(2))
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases: No cases were cited in the judgment text provided.