John Goss v The Queen - [2009] NSWCCA 190

New South Wales
Court of Criminal Appeal

CITATION: John Goss v R [2009] NSWCCA 190
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/07/2009

JUDGMENT OF: Hodgson JA at 1, 23, 25; Howie J at 2; Fullerton J at 24

EX TEMPORE JUDGMENT DATE: 16 July 2009

DECISION: Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Appeal against sentence - No error asserted in sentence - Fresh evidence - Applicant prevented from having parole transferred to Victoria - no jurisdiction to review administrative decision - not exceptional case warranting intervention by court.

LEGISLATION CITED: Crimes Act (NSW) 1900 (now repealed) - s 76
Parole Orders (Transfer) Act 1983
Crimes (Administration of Sentences) Act 1999 - 235B

CATEGORY: Principal judgment

CASES CITED: R v Cartwright (1999) 17 NSWLR 243
R v Vachalec [1981] NSWLR 353
R v Ehrenburg (NSWCCA, unreported, 14 December 1990)
R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
R v Keir [2004] NSWCCA 106

PARTIES: John Goss v Regina

FILE NUMBER(S): CCA 2008/8588

COUNSEL: M Grogan - Crown
Applicant appeared in person

SOLICITORS: S Kavanagh - Crown
Applicant appeared in person

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/8588

LOWER COURT JUDICIAL OFFICER: Boulton DCJ

LOWER COURT DATE OF DECISION: 07/11/2008

2008/8588

HODGSON JA
HOWIE J
FULLERTON J
THURSDAY 16 JULY 2009

John GOSS v R

Judgment

1 HODGSON JA: We have reached a decision in this matter and the decision is that your appeal will be dismissed. I will ask Justice Howie to deliver the judgment.

2 HOWIE J: The applicant was sentenced in the District Court on 7 November 2008 in respect of two offences of child sexual assault. The first was an indecent assault committed between 1974 and 1975 against a child, who shall be referred to as AR. The second offence was an act of indecency committed between 1979 and 1980 against a child under the age of 16 who shall be referred to as KB. The first offence was contrary to s 76 of the Crimes Act (NSW) 1900 (now repealed) and carried a maximum penalty of imprisonment for 6 years. The second offence was contrary to s76A of that Act (now repealed) and carried a maximum penalty of imprisonment for 2 years. In respect of the first offence the Judge was asked to take into account two offences on a Form 1 both being indecency offences committed against AR between 1974 and 1975.

3 In respect of the first offence, and taking into account the matters on the Form 1, the applicant was sentenced to 12 months with a non-parole period of 6 months to date from 7 November 2008. The non-parole period expired on 6 May 2009. In respect of the second offence the applicant was sentenced to a fixed term of 2 months to date from 7 May 2009. As a result of these sentences…

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 John Goss v The Queen

Details

AGLC: John Goss v The Queen [2009] NSWCCA 190
Case: [2009] NSWCCA 190
Decision Date: 16 July 2009

CaseChat Overview and Summary

The case of John Goss versus The Queen involved an appeal against the sentence imposed by the lower court. Goss, the appellant, had been convicted and sentenced for criminal offences, and his appeal was focused on the sentence rather than the conviction. The matter was heard in the High Court of Australia, the highest judicial forum in the country.

The primary legal issue for the court to determine was whether the sentence imposed was erroneous and, if not, whether there were grounds for the court to intervene on the basis of fresh evidence or an administrative decision affecting Goss's parole eligibility. Specifically, Goss argued that he should have been allowed to have his parole transferred to Victoria, and that the decision denying this request constituted an error warranting judicial review.

In delivering the judgment, the court clarified that while the sentence itself was not contested as erroneous, the appellant's argument centred on the administrative decision regarding parole transfer. The court noted that it lacked jurisdiction to review administrative decisions made by the relevant authorities. Furthermore, the court found that the circumstances did not constitute an exceptional case that warranted intervention. Consequently, the appeal against the sentence was dismissed, and the original sentence remained in place. The court did not see fit to order any further action regarding Goss's parole.

Orders