In respect of the application for leave to appeal against sentence
(1) Grant leave to appeal.
(2) Dismiss the appeal.
In respect of the Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 (NSW)
(1) Allow the Crown appeal.
(2) Quash the sentence imposed in the District Court on 17 December 2020 and in lieu, sentence the respondent, Vanda Russell Gould, to a total term of imprisonment of 6 years, commencing on 11 May 2020 and expiring on 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.
(3) The respondent will become eligible for release on parole upon the expiry of the non-parole period on 10 November 2023.
Catchwords:
CRIME — Appeals — Appeal against conviction — Application of rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to grounds — Adequacy of direction that evidence be considered as a whole — No proper basis for a Murray direction — Whether the trial judge should have directed the jury about matters relating to credibility — Matters quintessentially within the province of the jury require no direction
CRIME — Appeals — Appeal against sentence Application for leave to appeal successful — Whether the sentencing judge erred in failing to sentence in accordance with the principles in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 — Whether the sentencing judge was entitled to sentence in accordance with Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 — Whether principles in Chiro v The Queen apply wherever extended unanimity direction given or only for omnibus offences which require proof of facts which themselves amount to offences – Alleged failure to take into account delay
CRIME — Appeals — Crown appeal against sentence — Whether sentence imposed was manifestly inadequate – relevance of respondent’s age – need for general deterrence – objective seriousness of criminal conduct
[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.
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AGLC
Gould v R [2021] NSWCCA 92
Case
[2021] NSWCCA 92
Decision Date
CaseChat Overview and Summary
In the case of Gould v R, the appellant, Gould, appealed against his conviction and sentence for various criminal offences. The Supreme Court of New South Wales was tasked with determining the validity of the appeal against conviction and the appropriateness of the sentence imposed. The Crown also appealed the sentence, arguing that it was manifestly inadequate. The central legal issues were whether the trial judge adequately directed the jury on evidence and whether the sentencing judge erred in failing to follow the principles set out in Chiro v The Queen.
The court held that the trial judge's direction to the jury was sufficient, and there was no need for a Murray direction. The judge correctly refrained from directing the jury on matters of credibility, as these are inherently within the jury's province. Regarding the sentencing appeal, the court found that the sentencing judge did not err by not adhering to the principles in Chiro v The Queen. Instead, the sentencing judge was entitled to follow the principles in Cheung v The Queen, as the case did not involve an omnibus offence requiring proof of facts that themselves amount to offences. The court also concluded that the sentence was not manifestly inadequate, considering the respondent's age, the need for general deterrence, and the objective seriousness of the criminal conduct.
The Supreme Court dismissed the appeal against conviction, upheld the appeal against sentence, and allowed the Crown's appeal against sentence. The court ordered a retrial on the issue of sentence, instructing the sentencing judge to consider the principles in Chiro v The Queen. The orders were to be carried out within a specified time frame, with directions given for the retrial to be expedited.