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Court of Criminal Appeal 10 May 2021

Gould v R; R v Gould

[2021] NSWCCA 92

Public order & justice offences
RELEVANCE OF RESPONDENT’S AGE NEED FOR GENERAL DETERRENCE

Citation: Gould v R; R v Gould [2021] NSWCCA 92
Court: New South Wales Court of Criminal Appeal
Date: 10 May 2021
Judge(s): Bathurst CJ; Davies J; Adamson J

Background

The appellant was convicted of attempting to pervert the course of justice under s 43(1) of the Crimes Act 1914 (Cth). The charge arose from his alleged coaching of a witness who was to give evidence in Federal Court proceedings concerning a taxation dispute. The prosecution case involved four discrete acts said to constitute the physical element of the offence, and the jury was given an extended unanimity direction, meaning jurors were required to agree on which of those acts was established.

Following conviction, the appellant was sentenced in the District Court. Both the appellant and the Crown challenged aspects of that sentence. The appellant argued, among other things, that the sentencing judge erred in finding all four particulars of the offence proved and in failing to apply the sentencing principles from Chiro v The Queen (2017) 260 CLR 425. The Crown separately appealed on the ground that the sentence imposed was manifestly inadequate.

The Court of Criminal Appeal heard the conviction appeal, the appellant's sentence appeal, and the Crown appeal together.

  • Whether leave to appeal against conviction should be granted in respect of grounds concerning the adequacy of jury directions, including the absence of a direction about considering evidence as a whole, the absence of a so-called Murray direction, and directions on credibility
  • Whether rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applied to limit certain grounds of appeal
  • Whether the sentencing judge erred by finding all four particulars of the offence proved beyond reasonable doubt, given that an extended unanimity direction had been given
  • Whether the sentencing principles in Chiro v The Queen applied to this offence, or whether the conventional approach from Cheung v The Queen (2001) 209 CLR 1 governed
  • Whether the Crown sentence appeal should be allowed on the ground of manifest inadequacy, having regard to general deterrence and the respondent's age and circumstances

Decision

Conviction appeal. The Court dismissed the conviction appeal. On the jury direction grounds, the Court found no proper basis had been established for additional directions. Questions of credibility and the weight of evidence are quintessentially matters for the jury, and the trial judge was not required to direct the jury on those matters. Bathurst CJ differed slightly from Adamson J on whether rule 4.15 applied to a particular ground, concluding it did not, but agreed the ground was not made out in any event.

Appellant's sentence appeal (ground 1, the Chiro argument). The Court granted leave to appeal but dismissed the appeal. The central question was whether the principles in Chiro required the sentencing judge, confronted with an extended unanimity direction, to sentence only on the basis of the least serious factual foundation available. The Court held that Chiro was confined to its specific statutory context, which involved a duplicitous offence requiring proof of multiple acts of offending. By contrast, the present offence charged a single act of perverting justice, particularised by four alternative means. The sentencing judge was entitled to find each particular proved beyond reasonable doubt and to sentence accordingly, consistently with the conventional approach in Cheung.

Crown appeal. The Court allowed the Crown appeal, finding the sentence imposed was manifestly inadequate. The Court emphasised the substantial need for general deterrence given the egregious nature of the conduct. The respondent's age and health conditions in custody were taken into account, but did not justify the sentence that had been imposed. The Court resentenced the respondent to a total term of six years' imprisonment with a non-parole period of three years and six months.

Orders Made

  • Leave to appeal against conviction refused in respect of grounds 2(a), (b) and (c) under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
  • Leave to appeal against sentence granted; that appeal dismissed
  • Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) allowed
  • Sentence imposed in the District Court on 17 December 2020 quashed
  • In lieu, the respondent sentenced to a total term of imprisonment of 6 years, commencing 11 May 2020 and expiring 10 May 2026, comprising a non-parole period of 3 years and 6 months and a balance of term of 2 years and 6 months, with eligibility for parole from 10 November 2023

Key Takeaways

  • The Court of Criminal Appeal confirmed that Chiro v The Queen is not of general application wherever an extended unanimity direction is given. Its principles apply to duplicitous offences requiring proof of multiple acts as constituent elements, not to a single offence particularised by alternative factual means.
  • Where an offence involves discrete acts alleged as alternative ways of satisfying the one physical element, the sentencing court is entitled to make its own findings about which acts were proved beyond reasonable doubt, consistent with Cheung v The Queen.
  • An extended unanimity direction is required where discrete factual acts each go to proof of an essential element of the offence and any one of them could found a conviction, following the approach confirmed in Lane v R (2018) 265 CLR 196 and Walsh (2002) 131 A Crim R 299.
  • Matters of witness credibility and the weight to be given to evidence are quintessentially within the province of the jury, and a trial judge is not ordinarily required to give specific directions about them.
  • In allowing the Crown appeal, the Court of Criminal Appeal reaffirmed that substantial general deterrence requirements can justify increasing a sentence even where the offender is elderly and experiencing difficult conditions in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 35, 42, 43
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1990 (NSW), s 11
- Criminal Procedure Act 1986 (NSW), s 294AA
- Evidence Act 1995 (NSW), ss 50, 165
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
- Criminal Law Consolidation Act 1935 (SA), ss 49, 50, 58, 74
- Criminal Code (Qld), ss 210, 229B
- Income Tax Assessment Act 1936 (Cth), s 6

Cases:
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Lane v R (2018) 265 CLR 196; [2018] HCA 28
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30
- Ewan v R [2020] NSWCCA 85
- Gregg v R [2020] NSWCCA 245; (2020) 355 FLR 348
- Attwater v R; Maris v R [2021] NSWCCA 17
- Burr v R [2020] NSWCCA 282
- KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54