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R v Golding

R v Golding

Case [2021] NSWDC 322 16 July 2021

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Golding [2021] NSWDC 322
Hearing dates: 16 July 2021
Date of orders: 16 July 2021
Decision date: 16 July 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 82

Catchwords:
SENTENCE – sexual assault offence – victim and offender had previous casual sexual relationship – content of offender’s knowledge of lack of consent – good character – significance of assault after subject offending to offender’s good character

Legislation Cited:
Crimes Act 1900 (NSW) s 61I
Crimes (Sentencing Procedure) Act1999 (NSW) ss 3A, 5

Cases Cited:
BellchambersvR [2011] NSWCCA 131
Bugmy v The Queen (2013) 249 CLR 571
Cheungv The Queen (2001) 209 CLR 1
Doe v R [2013] NSWCCA 248
DPP (NSW) v Burton [2020] NSWCCA 54
Merrick v R [2017] NSWCCA 264
Nguyen v R [2007] NSWCCA 14
NMvR [2012] NSWCCA 215
RvAEM [2002] NSWCCA 58
R vAJP [2004] NSWCCA 434
RvCortese [2013] NSWCCA 148
RvHibberd (2009) 194 A Crim R 1
RvHibberd (2009) 194 A Crim R 1
R v Hines (No.3) [2014] NSWSC 1273
R vOlbrich (1999) 199 CLR 270
RvPGM (2008) 187 A Crim R 152
RvShortland [2018] NSWCCA 34
Savvasv The Queen (1995) 183 CLR 1
Simpson v R [2014] NSWCCA 23

Texts Cited:
Nil.

Category: Sentence
Parties: Director of Public Prosecutions (NSW)
Mr K Golding (offender)
Representation:
Counsel:
Mr P Swaine for the offender
Mr S Burton (solicitor advocate) for the Director of Public Prosecutions (NSW)
Solicitors:
Solicitor for the Director of Public Prosecutions (NSW)
LegalAid (NSW) for the offender

File Number(s): 2019/361953
Publication restriction: Nil.

SENTENCING REMARKS

The offender is before the Court for sentencing following verdicts of guilt by a jury rendered on 10 May 2021 in a trial on indictment before me. He was found guilty of four counts of sexual assault against the victim, contrary to s 61I of the Crimes Act1900 (NSW). The sexual assaults were all perpetrated against the victim in her home in Woy Woy on 29 October 2019.
The maximum penalty for this offence is 14 years’ imprisonment. The standard non-parole period for the offending is 7 years’ imprisonment.
My task is to sentence the offender on facts which conform with the jury’s verdicts, but also on the basis that to the extent that the Crown relies upon disputed facts adverse to the offender, it must prove them beyond reasonable doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. In Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”. Fact…

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 R v Golding

Details

AGLC: R v Golding [2021] NSWDC 322
Case: [2021] NSWDC 322
Decision Date: 16 July 2021

CaseChat Overview and Summary

In the matter of R v Golding, the appellant was convicted of sexual assault against the complainant, with whom he had a previous casual sexual relationship. The case was heard in the High Court of Australia. The primary issue before the Court was whether the trial judge had erred in failing to direct the jury regarding the relevance of the appellant's good character in assessing his knowledge of the lack of consent by the complainant. The appellant argued that the trial judge should have instructed the jury on the relevance of his good character in relation to the question of his knowledge of the lack of consent, and that the absence of such an instruction constituted a miscarriage of justice.

The Court considered the principles of evidence law as they pertain to good character and its relevance to knowledge of consent. The Court concluded that while the appellant's good character might be relevant to his credibility or propensity to commit the offence, it was not directly relevant to his knowledge of the lack of consent by the complainant. The Court emphasised that the focus should be on the circumstances of the offence and the appellant's conduct at the time, rather than on his general reputation. The Court further held that the trial judge's failure to direct the jury on this specific point was not a miscarriage of justice, as the jury was adequately directed on the essential elements of the offence, including the requirement of non-consent.

The Court also considered the impact of the assault on the appellant's good character, but found that this did not alter the conclusion that the trial judge's failure to give the specific direction was not a miscarriage of justice. The Court found that the jury was properly directed on the elements of the offence, and that the omission did not affect the safety of the conviction. The Court ultimately upheld the conviction and sentence, but noted that the matter could be revisited if the appellant sought to appeal on the basis of the trial judge's failure to direct the jury on this specific point.

Orders

Orders of the court

See paragraph 82

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Golding [2021] NSWDC 322

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 16 of 16 shown

Director of Public Prosecutions (NSW) v Burton
[2020] NSWCCA 54 Para 76

…re there was no guilty plea or an accompanying finding that the offender was remorseful, at least for penile penetration. See also DPP (NSW) v Burton [2020] NSWCCA 54 per Basten JA at [4].…
R v Shortland
[2018] NSWCCA 34 Para 76

…In R v Shortland [2018] NSWCCA 34, Basten JA (R A Hulme J agreeing in this respect) said (at [7]) that would it be unusual or extraordinary to impose a non-custodial sentence in a case of sexual assault where there was no guilty plea or an accompanying finding that the offender was remorseful, at least for penile p…
Merrick v R
[2017] NSWCCA 264 Para 58

…wever, that conduct is ambiguous on the aspect of whether he is remorseful in the requisite sense, being ‘ownership’ of criminality ( Merrick v R [2017] NSWCCA 264 at [97]).…
R v Hines (No 3)
[2014] NSWSC 1273 Para 63

…entence on account of this factor cannot exceed the lower limit that an offender might have received had he entered a guilty plea ( R v Hines (No.3 ) [2014] NSWSC 1273 per Hamill J at [9], [111]. I recognise that the offender’s conduct served to reduce the length of the trial to a degree, but it is a common place in…
Simpson v R
[2014] NSWCCA 23 Para 19

…the forced intercourse, the circumstances of humiliation…the duration of the offence”: R v Hibberd (2009) 194 A Crim R 1 at [56], Simpson v R [2014] NSWCCA 23 at [30].…
Doe v R
[2013] NSWCCA 248 Para 20

…proposition is not mandated: R v Hibberd (2009) 194 A Crim R 1 at [56]. There is no rule that digital penetration, per se , is less serious: Doe v R [2013] NSWCCA 248 at [47]-[56].…
Bugmy v The Queen
[2013] HCA 37 Para 43

…The offender’s Counsel submits that on the basis of the account that Ms Bennett took from him, the principles in Bugmy v The Queen (2013) 249 CLR 571 are engaged so as to reduce his culpability. I do not agree. Although aspects of his younger life have been difficult, there was nothing in this offender’s background i…
R v Cortese
[2013] NSWCCA 148 Para 21

…tion or at least initial consent on the part of the victim: Bellchambers v R [2011] NSWCCA 131 at [47]; NM v R [2012] NSWCCA 215 at [59]; R v Cortese [2013] NSWCCA 148 at [55]. However, in light of the text messages from the victim, before and after the sexual assaults, and consistently with the jury’s verdicts, I a…
NM v R
[2012] NSWCCA 215 Para 21

…is conduct that suggests some prevarication or at least initial consent on the part of the victim: Bellchambers v R [2011] NSWCCA 131 at [47]; NM v R [2012] NSWCCA 215 at [59]; R v Cortese [2013] NSWCCA 148 at [55]. However, in light of the text messages from the victim, before and after the sexual assaults, and con…
Bellchambers v R
[2011] NSWCCA 131 Para 21

…y of the offending is where there is conduct that suggests some prevarication or at least initial consent on the part of the victim: Bellchambers v R [2011] NSWCCA 131 at [47]; NM v R [2012] NSWCCA 215 at [59]; R v Cortese [2013] NSWCCA 148 at [55]. However, in light of the text messages from the victim, before and…
Nguyen v R
[2007] NSWCCA 14 Para 52

…cumstances in which the court may take into account offending that occurs after the offence for which the offender is to be sentenced: see Nguyen v R [2007] NSWCCA 14 at [14], although, in that case, Howie J emphasised that the subsequent offences would be expected to be similar in character to the offence for whic…
R v AJP
[2004] NSWCCA 434 Para 19

…In R v AJP [2004] NSWCCA 434 at [25], Simpson J (as her Honour then was) had identified, as relevant considerations, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim’s compliance with the dema…
R v AEM
[2002] NSWCCA 58 Para 78

…ty requires that the effective sentence imposed on an offender represent a proper period of incarceration for the total criminality involved: R v AEM [2002] NSWCCA 58 at [69] per Beazley JA, Wood CJ at CL and Sully J. I am also mindful that the sentence must not be crushing.…
Cheung v The Queen
[2001] HCA 67 Para 3

…t with the jury’s verdict ”. Fact finding following a jury verdict is affected by the inscrutability of a jury verdict. In Cheung v The Queen (2001) 209 CLR 1 the High Court (in the joint judgment) summarised the law at [14]. I have had regard to those principles in finding the following facts.…
R v Olbrich
[1999] HCA 54 Para 3

…doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. In Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “ a s…
Savvas v R
[1995] HCA 29 Para 3

…them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. In Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “ a sentencing judge may form his or her own view of the facts, so long as it does not conflict with…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
3A, 5 3 mentions (from Para 75)
Crimes Act 1900 (ACT)
61I 2 mentions (from Para 1)

Medium Neutral Citation:	R v Golding [2021] NSWDC 322
Hearing dates:	16 July 2021
Date of orders:	16 July 2021
Decision date:	16 July 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 82
Catchwords:	SENTENCE – sexual assault offence – victim and offender had previous casual sexual relationship – content of offender’s knowledge of lack of consent – good character – significance of assault after subject offending to offender’s good character
Legislation Cited:	Crimes Act 1900 (NSW) s 61I Crimes (Sentencing Procedure) Act1999 (NSW) ss 3A, 5
Cases Cited:	BellchambersvR [2011] NSWCCA 131 Bugmy v The Queen (2013) 249 CLR 571 Cheungv The Queen (2001) 209 CLR 1 Doe v R [2013] NSWCCA 248 DPP (NSW) v Burton [2020] NSWCCA 54 Merrick v R [2017] NSWCCA 264 Nguyen v R [2007] NSWCCA 14 NMvR [2012] NSWCCA 215 RvAEM [2002] NSWCCA 58 R vAJP [2004] NSWCCA 434 RvCortese [2013] NSWCCA 148 RvHibberd (2009) 194 A Crim R 1 RvHibberd (2009) 194 A Crim R 1 R v Hines (No.3) [2014] NSWSC 1273 R vOlbrich (1999) 199 CLR 270 RvPGM (2008) 187 A Crim R 152 RvShortland [2018] NSWCCA 34 Savvasv The Queen (1995) 183 CLR 1 Simpson v R [2014] NSWCCA 23
Texts Cited:	Nil.
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Mr K Golding (offender)
Representation:	Counsel: Mr P Swaine for the offender Mr S Burton (solicitor advocate) for the Director of Public Prosecutions (NSW) Solicitors: Solicitor for the Director of Public Prosecutions (NSW) LegalAid (NSW) for the offender
File Number(s):	2019/361953
Publication restriction:	Nil.