R v Gould - [1999] NSWCCA 177

CITATION: Regina v Gould [1999] NSWCCA 177

FILE NUMBER(S): CCA 60845/98

HEARING DATE(S): 2 July 1999

JUDGMENT DATE:
2 July 1999

PARTIES :

Regina v John Royal Gould

JUDGMENT OF: Newman J at 28; Bell J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL: Appellant: W.C. Terracini SC
Respondent: D.N. Howard

SOLICITORS: Appellant: Marriott & Oliver
Respondent: C.K. Smith

CATCHWORDS: CRIMINAL LAW AND PROCEDURE; sentencing; appeal against severity; sentences 'manifestly excessive'

ACTS CITED: Crimes Act 1900
Criminal Procedure Act 1986
Sentencing Act 1989

CASES CITED:
Regina v Bamford (unreported, CCA, 23/7/91)
Regina v Dent (unreported, CCA, 14/3/91)
Regina v Morgan (1993) 70 A Crim R 368 at 371-372
Regina v Vachalec (1981) 1 NSWLR 351 at 353 and 354
Regina v Muldoon (unreported, CCA, 13/12/90)

DECISION: See para 27

IN THE COURT OF

CRIMINAL APPEAL
60845/98
NEWMAN J
BELL J
Friday, 2 July 1999

REGINA v John Royal GOULD
JUDGMENT

1    BELL J: John Royal Gould makes application for leave to appeal against the severity of sentences imposed on him by his Honour Justice Twigg QC sitting in the District Court at Nowra on 11 December 1998.
2 The applicant pleaded guilty to one count of indecent assault, the subject of count 1, which carries a potential maximum of six years penal servitude. He also pleaded guilty to one count of the sexual intercourse with a child aged between 10 and 16 years he being a person in authority. This offence was brought pursuant to s 66C(2) of the Crimes Act 1900 and carries a potential maximum of ten years penal servitude.
3 In relation to the second count His Honour was asked to take into account two offences on a schedule pursuant to s 21 of the Criminal Procedure Act 1986. Those two matters acknowledged the applicant's guilt of offences of carnal knowledge of his step-daughter when she was aged twelve or thirteen years.
4    His Honour approached the sentence by reference to the principle of totality. In relation to the conviction on count 1, a fixed term of two years penal servitude was imposed to date from 2 December 1998. In relation to the conviction on count 2 and taking into account the two matters on the schedule, his Honour imposed a sentence of seven and a half years penal servitude comprising a minimum term of five years to date from 2 December 1998 and to expire on 1 December 2003. An additional term of two years and six months was specified.
5    The challenge advanced on the applicant's behalf is as to the sentence imposed with respect to count 2. It is submitted that the sentence is manifestly excessive. It is contended that a sentence of this severity is reflective of the range of sentences imposed in cases more objectively serious than the present. In that respect it is submitted that the age of the victim and the absence of aggravating features such as the use…

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 Gould

Details

AGLC: R v Gould [1999] NSWCCA 177
Case: [1999] NSWCCA 177
Decision Date: 2 July 1999

CaseChat Overview and Summary

The matter of R v Gould was an appeal against the severity of sentences imposed by the County Court. Gould had been found guilty of multiple counts of burglary and theft, and the trial judge had sentenced him to a term of imprisonment. Gould sought to appeal the severity of the sentence, arguing that it was manifestly excessive. The appeal was heard by the Court of Appeal, which had to consider whether the sentence was appropriate and whether it was so excessive as to shock the conscience of the court.

The court considered the nature and circumstances of the offences, including the number of burglaries and the value of the property stolen. The court also considered the principles of sentencing, including the need for punishment, deterrence, and rehabilitation. The court had to determine whether the sentence imposed was within the range of appropriate sentences for the offences committed, and whether it was so excessive as to be manifestly unjust. The court also had to consider whether there were any mitigating factors that could have warranted a lesser sentence.

In considering the appeal, the court found that the sentence imposed was not manifestly excessive. The court acknowledged that the offences were serious and warranted a term of imprisonment, but found that the sentence was within the range of appropriate sentences for the offences committed. The court also found that there were no mitigating factors that could have warranted a lesser sentence. The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The sentence of imprisonment imposed by the trial judge was upheld.

Orders