Gorrick v Regina [2006] NSWCCA 232

New South Wales Court of Criminal Appeal

CITATION: Gorrick v Regina [2006] NSWCCA 232

HEARING DATE(S): 7 April 2006; 16 June 2006

JUDGMENT DATE: 3 August 2006

JUDGMENT OF: Grove J at 1; Simpson J at 79; Bell J at 80

DECISION: APPEAL AGAINST CONVICTION DISMISSED; APPEAL AGAINST SENTENCE DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SEXUAL INTERCOURSE WITH PERSON AGED BETWEEN TEN AND SIXTEEN YEARS - ALLEGATION OF INCOMPETENT REPRESENTATION AND FAILURE TO CARRY OUT INSTRUCTIONS AT TRIAL - EVIDENCE HEARD ON APPEAL - ALLEGATIONS REJECTED - POLICE INTERVIEWERS NOT BOUND TO DISCLOSE THEIR KNOWLEDGE TO SUSPECT - SENTENCE - NO DEPARTURE FROM APPROPRIATE PATTERN - FURTHER OFFENCE INVOLVING DIFFERENT VICTIM - IMPOSITION NOT EXCESSIVE

LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995

Nudd v The Queen 2006 80 ALJR 614 CASES CITED: R v MJR 2002 54 NSWLR 368 R v Simpson 2001 53 NSWLR 703

PARTIES: Christopher Charles Gorrick v Regina

FILE NUMBER(S): CCA 2005/2291

COUNSEL: In person (Appellant) P. Ingram (Crown/Respondent)

SOLICITORS: S. Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1157

LOWER COURT JUDICIAL OFFICER: McGuire DCJ, Williams DCJ

LOWER COURT DATE OF DECISION: 5 November 2004

LOWER COURT MEDIUM NEUTRAL CITATION: N/A

IN THE COURT OF CRIMINAL APPEAL 2005/2291

GROVE J SIMPSON J BELL J

3 August 2006 CHRISTOPHER CHARLES GORRICK v REGINA Judgment 1 GROVE J: This is, first, an appeal against conviction following trial before McGuire DCJ and a jury. The appellant was tried on an indictment containing nine counts, counts 1 and 2 charging indecent assault upon a person aged under sixteen years and under his authority and counts 3 to 9 inclusive charging sexual intercourse with a person above ten years and under sixteen years and under his authority. Having regard to the times at which the offences were alleged to have been committed, the charges were preferred pursuant to s 61E (1A) and s 66C (2) of the Crimes Act 1900 respectively. These provisions have since been repealed and replaced. On all counts, the victim was the same person. By jury verdict, the appellant was found not guilty on counts 1 and 2 and guilty on counts 3 to 9 inclusive. 2 The trial took place in July 2004. Following the convictions, the trial judge became unavailable and sentences were imposed by Williams DCJ in November 2004. On that occasion the appellant was also sentenced for an offence of indecent assault contrary to s 61L of the Crimes Act. The victim in this instance was different from the person named in the trial indictment. It is convenient to refer to this as the unrelated offence. 3 Williams DCJ sentenced the appellant on count 3 to imprisonment consisting of a non parole period of fifteen months commencing on 5 November 2004 and expiring on 4 February 2006 with a balance term of nine months; on counts 4 to 9 to terms of imprisonment to be served concurrently consisting of a non parole period of four years commencing on 5 November 2004 and expiring on 4 November 2008 with a balance term of two years and on the unrelated offence to imprisonment consisting of a non parole period of twelve months commencing on 5 May 2008 and expiring on 4 May 2009 with a balance term of six months. 4 The overall effective sentence can be stated to be a total term of six years with a non parole period of four years six months. The earliest date of eligibility for release to parole is therefore 4 May 2009. 5 The second matter before the Court is, in the alternative, an application for leave to appeal against severity of sentence. 6 The appellant was born on 26 January 1948. The complainant (in respect of the trial counts) was born on 16 June 1973. They met in about August 1987 when she was in Year 7 at a school in Strathfield. By a marriage which had been dissolved the appellant had two sons and a daughter. These children and the complainant became acquainted and, on occasions, the appellant was present when there were discussions about comparative ages and the school years into which they had progressed. 7 The marriage of the complainant's parents had failed and they lived separately and apart. In early 1988 her mother had commenced a relationship with the appellant and moved into premises to live with him. Although the complainant for a time resided with her father, her father's lady companion and her brother, over the ensuing years she substantially became a member of the household of her mother and the appellant. 8 Having regard to the grounds of appeal to which I will later turn, it suffices to note that the appellant engaged in sexual activity with the complainant including intercourse. The evidence included lengthy detail about these matters and what can be described as a culmination of the relationship which resulted in the appellant and the complainant living together until about 1993. In the interim, as might be expected, it was stated to be about 1992, the relationship between the appellant and the complainant's mother ceased. 9 The appellant gave evidence at his trial. He agreed that he had had a relationship with the complainant including participation with her in sexual intercourse. He had not denied this when interviewed by police. The issue of when the first act of intercourse took place was fought at trial and is central to the first and principal ground of appeal relied upon by the appellant. 10 At trial he was represented by Ms Gallagher of counsel instructed by Mr Hinde, solicitor. He has appeared for himself in the appeal. In support of it the appellant has forwarded through the Registrar a considerable volume of written material, a great deal of which is in the form of affidavit. The first ground of appeal did involve the reception of evidence but it was made clear to the appellant that, other than in instances where the reception of material as evidence was indicated, the Court would treat the remainder as submissions irrespective of the form in which it had been presented. It is to be observed that much of the material, although in the form of affidavit, amounts to submission rather than testimony. 11 Despite the relative immensity of the volume of paper, the appeal can and should be determined by consideration of matters which can be resolved quite briefly. 12 The appeal was heard on 7 April 2006 and further on 16 June 2006. By letter to the Registrar dated 12 May 2006 the appellant submitted grounds of appeal in what was said to be final form. Essentially the amendment to existing documentation related to the application for leave to appeal against sentence and the appellant acknowledged that his amendment was not intended to affect the proceedings to the extent that they had already been heard. In particular, grounds 1 and 2 remained the same and these are the sole grounds of challenge to conviction. 13 Those grounds were expressed in these terms: "1. That legal counsel for the defendant, Ms J. Gallagher and instructing solicitor, Mr Jeffrey Hinde, displayed flagrant incompetence in the preparation and conduct of the trial, such as to deprive the defendant of a fair chance of acquittal, thus leading to a miscarriage of justice. 2. That trial judge McGuire erred in not excluding ERISP evidence in total under s 138 of the Evidence Act ". 14 I deal with ground 1. To appreciate the appellant's complaint it is necessary to sketch legislative background under which counts 3 to 9 were charged. 15 Section 66C (2) of the Crimes Act provided: "Any person who has sexual intercourse with another person who: (a) is of or above the age of 10 years, and under the age of sixteen years; and (b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person,