Regina v Percival [2001] NSWCCA 429

New South Wales Court of Criminal Appeal

CITATION : Regina v Percival [2001] NSWCCA 429 FILE NUMBER(S) : CCA 60049/01 HEARING DATE(S) : Friday 19 October 2001 JUDGMENT DATE : 19 October 2001

PARTIES : Regina v Brian Percival JUDGMENT OF : Wood CJ at CL at 13; Grove J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/71/0128 LOWER COURT JUDICIAL Goldring DCJ OFFICER :

COUNSEL : D.M. Woodburne (Crown) A.C. Haesler (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - SEXUAL OFFENCES AGAINST YOUNG CHILDREN - LATE PLEAS OF GUILTY - NO SPECIAL POINT OF PRINCIPLE CASES CITED: Ryan v The Queen 2001 75 ALJR 815 DECISION : APPEAL DISMISSED

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60049/01 WOOD CJ at CL GROVE J

Friday 19 October 2001 REGINA v BRIAN PERCIVAL

JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed upon the applicant by his Honour Judge Goldring. 2 The applicant was presented for trial in the Cootamundra District Court on a number of counts alleging sexual intercourse with two juvenile complainants. At the time of the alleged offences the victims were aged in one case about 12-14, and in the other, about a year younger. The victims were in fact cousins and they were each, although in a different structure, nieces of the applicant. After one of the complainants had given her evidence-in-chief and the trial proceeded thus far, the applicant sought to be re-arraigned and pleaded guilty to one count in respect of each of the victims. The Crown elected not to proceed upon the other counts and the pleas of guilty were taken as representative of the conduct charged against the applicant. On the matter of sentence, the learned judge was asked to take into account on a Form 1 two further matters charging aggravated indecent assault. In this case the victim was a third girl aged, at the time of the offences, 11 years. It is not necessary to elaborate the details of the offences beyond saying that the applicant had employment as a car detailer. He persuaded the victims to come and assist him in his work for payment. In that sense, as his Honour observed, he was the employer of the girls. It appears that he made small payments to them but on occasions where they gratified his sexual impulses, it was not unusual for him to pay them larger amounts. Certain matters were drawn to the attention of the girls which he threatened would occur in the event that they revealed his conduct which, in general, was to persuade the firstmentioned children to fellate him. 3 So far as the Form 1 matters are concerned, they were not as serious, although the child was even younger. In this case, again the girl had been persuaded to assist in employment. The applicant commenced his predatory behaviour by enquiring as to whether she had a boyfriend, and later whether or not she permitted him to play with her breasts, and in due course this is what the applicant did. He told her things such as that this sort of conduct would assist in the growth of her breasts. It is, as I have said, unnecessary to elaborate the facts further. They are evidently most serious and the sentencing judge rightly viewed them as such. 4 The prescribed maximum penalty for the offences of sexual intercourse was eight years imprisonment. In the event, his Honour sentenced the applicant to imprisonment on each of the counts to which he pleaded guilty for six years, and he specified a non-parole period of four years, rejecting a submission that he should reduce the non-parole period by reason of special circumstances. 5 The challenge advanced by counsel is broadly based upon a submission that a less severe sentence was warranted. A number of matters were canvassed, the first of which was an alleged error by his Honour in reference to the applicant's prior good character. He had prior good character in the sense that he had been born in 1946 and before the current matters, had no prior convictions. In the course of his remarks on sentence, the learned judge observed that the offences to which the applicant had pleaded guilty were of such a nature that previous good character is not particularly relevant. 6 Part of the argument advanced both in writing and orally before this Court is focused upon the judgment of the High Court in Ryan v The Queen 2001 75 ALJR 815. As was pointed out in submissions on behalf of the Crown, that was a case where the error identified was by a trial judge concluding that the then offender should have no leniency for otherwise good character because, as that judge observed, priests were expected to be of such good character. The judge, in this case, did not express a conclusion that the applicant should have no leniency. Whilst it may not be an altogether accurate summation of the current state of the law emanating from this Court that good character is not particularly relevant, I would not conclude that his Honour gave it no weight at all. The argument is based upon the proposition that the end result achieved by his Honour is such that a conclusion that he gave no weight at all can be reached. Several other matters were referred to in the context of that argument. They included the likely service of the applicant's term on protection along with most other offenders in like circumstances and the applicant's ill-health. 7 Reference was made to the applicant's pleas of guilty. It is true that the second complainant was not required to give evidence and the first complainant was not cross-examined, however, from a utilitarian point of view, there would seem to have been little benefit to the community in that the trial was not only prepared, but was underway at the time. 8 On the question of the plea of guilty as manifesting contrition, the material before his Honour contradicted that circumstance. Indeed, the report of the Probation and Parole officer specified: Mr Percival confirmed his pleas of guilty in relation to the offences, however, he claimed that he had not committed either offence and had not engaged in any illegal or sexually inappropriate behaviour in relation to the victims. Mr Percival claimed he entered guilty pleas after receiving legal advice that it was too late now to change his position. 9 It would be hardly surprising if his Honour did not regard the applicant as manifesting contrition. 10 Reference was made to the published statistics from the Judicial Commission's collections. Mr Haesler of counsel for the applicant, correctly recognised that the real range for an individual offence lies between a non-custodial sentence and the maximum prescribed by Parliament of eight years. Nevertheless, he drew attention to the circumstance, that on the published statistics the sentences imposed upon the applicant were toward the top of the range. The learned judge expressly recognised that his initial assessment was close to the maximum for a single count. 11 I have said elsewhere and I repeat that there is in such submissions almost implied an alleged error that the upper limit of the statistical range is appropriate to the most serious or approaching the worst case. The worst case, of course, is potentially liable to attract the maximum sentence prescribed by Parliament. If, as the submission implies, there should be persistently selected sentences lying somewhere in the middle of the range, then inexorably the upper limit of the statistical range will reduce. This is, as I have said before, not a matter of jurisprudence but a matter of simple arithmetic. Therefore, as I have said, it was correct for Mr Haesler to recognise where the real range lay, but it does not seem to me to manifest any error on his Honour's part that serious offences such as these have attracted impositions close to the upper limit of the published statistical range. 12 The final matter advanced on behalf of the applicant referred to his Honour's conclusion that there were no special circumstances, or to be more accurate, that he did not find there were special circumstances justifying a departure from the proportions mentioned in the statute. A finding of special circumstances or their absence, like other findings made by a trial judge, is a matter of fact. In this case, the evidence does not demonstrate that his Honour was wrong, neither does the argument. For my part, I would not intervene to alter his Honour's conclusion. Accordingly, although I would grant leave to appeal, I would propose that the appeal be dismissed. 13 WOOD CJ at CL: I agree. The order of the Court will be as Grove J has proposed. **********