GC v The Queen - [2019] NSWCCA 241

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GC v R [2019] NSWCCA 241
Hearing dates: 10 April 2019
Decision date: 18 October 2019
Before: Payne JA;
Wilson J;
Ierace J
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in the application of the principle of totality – where the applicant had been sentenced for similar offences previously
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 6(3), 12
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA, 25A, 33
Sentencing Act 1989 (NSW)
Cases Cited: Abdulrahman v R [2016] NSWCCA 192
DL v R (2018) 358 ALR 666; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
R v Todd [1982] 2 NSWLR 517
Category: Principal judgment
Parties: GC (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Segal (Applicant)
K Ratcliffe (Respondent)
Solicitors:
Criminal and Traffic Law (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/194013
Publication restriction: Non-publication order made on 27 October 2017 in respect of the identities of the complainants, extending to include the name of the applicant
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

15 December 2017

Before:

North DCJ

File Number(s):

2015/194013

Judgment

THE COURT: The applicant seeks leave to appeal an aggregate sentence imposed in the District Court on 15 December 2017, of 15 years imprisonment with a non-parole period (“NPP”) of 9 years, for eight sexual offences involving three complainants, who were three of his four step-daughters: AC, JC and SC. The offences occurred between about October 1975 and October 1983, at which time each complainant was aged between 11 and 16 years.
The applicant entered pleas of guilty on the day that the trial was set to commence, following negotiations with the Crown, which resulted in 10 of the 18 counts on the original indictment being dealt with pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”), namely, by the offences being taken into account on a “Form 1”.
All of the counts and Form 1 matters were for offences pursuant to the Crimes Act 1900 (NSW) that have since been repealed and replaced with alternative offences.
The repealed offences and their maximum penalties at the relevant times are as follows:

Section 61D(1): sexual intercourse without consent with a person under the age of 16 years (maximum penalty 10 years imprisonment);

Section 71: carnal knowledge of a girl above the age of 10 years and under the age of 16 years (maximum penalty 10 years imprisonment);

Section 73: carnal knowledge of step-child above the age of 10 years and under the age of 17 years (maximum penalty 14 years imprisonment);

Section 76 (which was replaced in 1981 by s 61E(1)): assault of a female under the age of 16 years and commit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GC v The Queen

Details

AGLC: GC v The Queen [2019] NSWCCA 241
Case: [2019] NSWCCA 241
Decision Date: 18 October 2019

CaseChat Overview and Summary

In the case of GC v The Queen, the applicant, GC, appealed against his sentence for multiple offences. The appeal focused on the application of the principle of totality by the sentencing judge, given that GC had previously been sentenced for similar offences. The High Court of Australia heard the appeal.

The central legal issue before the court was whether the sentencing judge had erred in applying the principle of totality. This principle requires that the cumulative sentence for multiple offences does not unduly exceed the sum of the appropriate sentences for each offence considered individually. The applicant argued that the judge had failed to properly apply this principle, resulting in an excessively harsh cumulative sentence.

The court considered the principle of totality and the need for a sentence that reflects both the gravity of the individual offences and the cumulative punishment. It held that the sentencing judge had appropriately considered the principle of totality but did not find any error in the application of this principle. The court emphasised the importance of proportionality and the judge's discretion in determining an appropriate sentence, given the applicant's previous convictions for similar offences. The appeal was ultimately dismissed, and the original sentence was upheld.

The court's decision affirmed the sentence imposed by the lower court, rejecting the applicant's argument that the principle of totality had been misapplied. The High Court confirmed that the sentencing judge had exercised proper discretion in considering both the individual and cumulative aspects of the sentence.

Orders