Regina v Gould [1999] NSWCCA 177

New South Wales Court of Criminal Appeal CITATION : Regina v Gould [1999] NSWCCA 177 FILE NUMBER(S) : CCA 60845/98 HEARING DATE(S) : 2 July 1999 JUDGMENT DATE : 2 July 1999

PARTIES : Regina v John Royal Gould JUDGMENT OF : Newman J at 28; Bell J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Twigg DCJ

COUNSEL : Appellant: W.C. Terracini SC Respondent: D.N. Howard SOLICITORS : Appellant: Marriott & Oliver Respondent: C.K. Smith CATCHWORDS : CRIMINAL LAW AND PROCEDURE; sentencing; appeal against severity; sentences 'manifestly excessive' Crimes Act 1900 ACTS CITED : Criminal Procedure Act 1986 Sentencing Act 1989 Regina v Bamford (unreported, CCA, 23/7/91) Regina v Dent (unreported, CCA, 14/3/91) CASES CITED: Regina v Morgan (1993) 70 A Crim R 368 at 371-372 Regina v Vachalec (1981) 1 NSWLR 351 at 353 and 354 Regina v Muldoon (unreported, CCA, 13/12/90) DECISION : See para 27

IN THE COURT OF CRIMINAL APPEAL

60845/98

NEWMAN J BELL J

Friday, 2 July 1999 REGINA v John Royal GOULD

JUDGMENT

1 BELL J: John Royal Gould makes application for leave to appeal against the severity of sentences imposed on him by his Honour Justice Twigg QC sitting in the District Court at Nowra on 11 December 1998. 2 The applicant pleaded guilty to one count of indecent assault, the subject of count 1, which carries a potential maximum of six years penal servitude. He also pleaded guilty to one count of the sexual intercourse with a child aged between 10 and 16 years he being a person in authority. This offence was brought pursuant to s 66C(2) of the Crimes Act 1900 and carries a potential maximum of ten years penal servitude. 3 In relation to the second count His Honour was asked to take into account two offences on a schedule pursuant to s 21 of the Criminal Procedure Act 1986. Those two matters acknowledged the applicant's guilt of offences of carnal knowledge of his step-daughter when she was aged twelve or thirteen years. 4 His Honour approached the sentence by reference to the principle of totality. In relation to the conviction on count 1, a fixed term of two years penal servitude was imposed to date from 2 December 1998. In relation to the conviction on count 2 and taking into account the two matters on the schedule, his Honour imposed a sentence of seven and a half years penal servitude comprising a minimum term of five years to date from 2 December 1998 and to expire on 1 December 2003. An additional term of two years and six months was specified. 5 The challenge advanced on the applicant's behalf is as to the sentence imposed with respect to count 2. It is submitted that the sentence is manifestly excessive. It is contended that a sentence of this severity is reflective of the range of sentences imposed in cases more objectively serious than the present. In that respect it is submitted that the age of the victim and the absence of aggravating features such as the use of force or threats suggests that his Honour erred in concluding the offences are "towards the higher end of the range of seriousness." 6 The other way in which the argument is put is that the applicant's age, his mental and psychological health, his good character, his pleas of guilty, contrition and prospects of rehabilitation were such as in combination to call for a sentence of less than seven and a half years. 7 A challenge is also advanced to the way the sentence was structured. His Honour found that special circumstances existed arising out of the applicant's health and age and the need for rehabilitation and that those justified a departure from the statutory ratio provided by s 5(2) of the Sentencing Act 1989. 8 Mr Terracini SC submits the special circumstances were such that his Honour erred in not structuring the sentence so as to provide for a lesser minimum term. In his written submissions Mr Terracini put it this way: "On the total sentencing imposed a more significant variation would have more adequately balanced the need for general deterrence and denunciation on the one hand and the need to do justice in the individual case on the other." 9 The victim in relation to both counts is the applicant's step-daughter. The applicant commenced living with her mother when the victim was aged about eighteen months. The offences took place over a substantial period from somewhere around September 1983 to September 1987. The victim was aged between about twelve years and fifteen years. 10 The first count related to an incident when the victim was aged twelve years and was living at Nowra with her mother and the applicant. She was walking to a shed on the property on which the family lived when the applicant called her over to him and put his hand inside her underpants and touched her around the outside of her vagina. The offences the subject of count 2 took place when she was aged fifteen years. She accompanied the applicant on a trip in his four wheel drive to a secluded area. He placed a blanket on the ground on a bush track and made the victim lie down on her side. He pulled his pants down to his knees and knelt beside her placing his erect penis in her mouth. He held her head so that she was not able to pull way. He ejaculated in her mouth. He said to her, "That wasn't nice, I'm sorry for doing that, I won't do it again." 11 The two matters taken into account on the schedule were instances of sexual intercourse involving penile penetration of the victim's vagina. She was aged twelve or thirteen at the time. 12 The charges were representative in the sense that they were instances particularised by the victim against a background of repeated abuse of her by the applicant over the period covered by the counts. It was not open to his Honour to sentence for other than the matters before him and there is no suggestion that he did so. However the circumstances that the offences were not isolated is a material consideration in determining the appropriate sentence in respect of the matters the subject of the indictment: Regina v Bamford (unreported, CCA, 23/7/91) 13 Dealing firstly with the challenge that the sentence is manifestly excessive, having regard to the objective features, I note that this is a case where the applicant stood in the position of father to the victim. She was entitled to look to him for protection. This Court has on many occasions noted that a child is particularly vulnerable to sexual molestation from the male parent or step parent. There is a community expectation that a parent or person in a position of trust with respect to a child will care for the child and refrain from using the child for sexual pleasure: Regina v Dent (unreported, CCA,14/3/91). The victim in this case was twelve or thirteen when subjected to sexual intercourse by her stepfather. 14 The objective features of count 2 viewed in isolation warrant the description of it as an offence towards the higher end of the range of seriousness. To this must be added those matters on the schedule. 15 As I have noted, the maximum penalty imposed in relation to offences under s 66C(2) is one of ten years. The two matters on the schedule carried a potential maximum of fourteen years. That is not the way the matter proceeded and the maximum sentence which was available to his Honour was the ten year term. However, the inclusion of the two serious offences on the schedule was a matter his Honour was required to reflect in the sentence imposed on count 2: Regina v Morgan (1993) 70 A Crim R 368 at 371-372. 16 I turn now to the submission advanced that his Honour erred in failing to give adequate weight to the subjective features in this case. In particular, both in his written submissions and in oral argument, Mr Terracini contends that the sentence failed to adequately reflect the pleas of guilty. 17 It was noted that in the course of his reasons for sentence his Honour observed: "It must be said however that a verdict of guilty on the charges laid was always inevitable." 18 This is a matter where no complaint was made by the victim for many years until she had left home and married. Needless to say there were no witnesses to the incidents of which she complained nor was there any medical evidence to support her assertions. I understand his Honour's reference to the inevitability of conviction to relate to the circumstance that the applicant had made admissions, albeit in generalised terms, both to the complainant's grandmother and to his natural daughter. 19 The history of the matter shows that the applicant was committed for trial on a number of counts including the matters on the schedule. On 9 June 1998 he was indicted before her Honour Judge Payne. On that occasion he entered a plea of guilty to the matter which was count 2 on the indictment before his Honour Judge Twigg. 20 On Monday 30 November 1998 the applicant was indicted before his Honour Judge Twigg and a jury. That indictment contained three counts being the indecent assault matter, the subject of count one in the proceedings before this Court, together with the two matters which subsequently came to be included on the schedule. The applicant entered pleas of not guilty to all matters. 21 The trial did not commence immediately and it appears that discussions took place between the representatives for the applicant and the Crown. Later that same day the applicant was re-indicted on the present indictment and entered pleas of guilty to the two counts, inviting his Honour to take into account the further two matters on the schedule. 22 In his reasons for sentence his Honour makes clear that he took into account the pleas of guilty both as sparing the witnesses the trauma of giving evidence and the community the cost of a possibly lengthy trial. Further, his Honour appears to have accepted the pleas of guilty were consistent with the applicant being ashamed of his conduct towards his step-daughter. That was a favourable finding having regard to the relatively late entry of the pleas of guilty. His Honour expressly referred to the applicant's pleas of guilty as matters he took into account on a number of occasions in the course of his remarks on sentence. I do not consider his Honour erred in the approach he took to the recognition of the pleas of guilty. 23 There was evidence before the Court that the applicant had a number of health problems. Dr Spivey gave evidence that the applicant suffered from emphysema and had a 20% loss of lung capacity. Additionally, the applicant had significant low back problems that had led to surgery in 1990. 24 There was no evidence before his Honour to suggest that incarceration would in the light of the medical history be more than usually burdensome upon the applicant. The principles governing the approach to the sentence of persons with significant health problems are as stated in Regina v Vachalec (1981) 1 NSWLR 351 at 353 and 354. His Honour did take into account the applicant's poor health in assessing the subjective case advanced on his behalf. I do not consider he erred in the approach he adopted. 25 It is common in cases of this sort for the offender to be a person of otherwise good character and accordingly this consideration assumes less significance than it might otherwise do: Regina v Muldoon (unreported, NSWCCA, 13/12/90). 26 The issue on this application is whether error is identified in the approach that the sentencing Judge adopted. The matters upon which Mr Terracini relies as commending a more lenient outcome, either as to the sentence viewed overall or in the way it was structured, are matters to which his Honour referred in the course of his reasons. I do not consider any error has been demonstrated in the approach he took, nor do I consider the sentence overall is such as to bespeak error in the sense of falling outside the upper limit of the range of sentences that were open to the sentencing Judge. 27 I would propose that leave to appeal be granted but that the appeal be dismissed. 28 NEWMAN J: I agree. The orders of the Court will be as proposed by Justice Bell. **********