Regina v Percival - [2001] NSWCCA 429

CITATION: Regina v Percival [2001] NSWCCA 429

FILE NUMBER(S): CCA 60049/01

HEARING DATE(S): Friday 19 October 2001

JUDGMENT DATE:
19 October 2001

PARTIES :

Regina v Brian Percival

JUDGMENT OF: Wood CJ at CL at 13; Grove J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/71/0128

LOWER COURT JUDICIAL
OFFICER : Goldring DCJ

COUNSEL : D.M. Woodburne (Crown)
A.C. Haesler (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - SEXUAL OFFENCES AGAINST YOUNG CHILDREN - LATE PLEAS OF GUILTY - NO SPECIAL POINT OF PRINCIPLE

CASES CITED:
Ryan v The Queen 2001 75 ALJR 815

DECISION: APPEAL DISMISSED

60049/01

WOOD CJ at CL

GROVE J

Friday 19 October 2001

REGINA v BRIAN PERCIVAL

JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed upon the applicant by his Honour Judge Goldring.

2 The applicant was presented for trial in the Cootamundra District Court on a number of counts alleging sexual intercourse with two juvenile complainants. At the time of the alleged offences the victims were aged in one case about 12-14, and in the other, about a year younger. The victims were in fact cousins and they were each, although in a different structure, nieces of the applicant. After one of the complainants had given her evidence-in-chief and the trial proceeded thus far, the applicant sought to be re-arraigned and pleaded guilty to one count in respect of each of the victims. The Crown elected not to proceed upon the other counts and the pleas of guilty were taken as representative of the conduct charged against the applicant. On the matter of sentence, the learned judge was asked to take into account on a Form 1 two further matters charging aggravated indecent assault. In this case the victim was a third girl aged, at the time of the offences, 11 years. It is not necessary to elaborate the details of the offences beyond saying that the applicant had employment as a car detailer. He persuaded the victims to come and assist him in his work for payment. In that sense, as his Honour observed, he was the employer of the girls. It appears that he made small payments to them but on occasions where they gratified his sexual impulses, it was not unusual for him to pay them larger amounts. Certain matters were drawn to the attention of the girls which he threatened would occur in the event that they revealed his conduct which, in general, was to persuade the firstmentioned children to fellate him.

3 So far as the Form 1 matters are concerned, they were not as serious, although the child was even younger. In this case, again the girl had been persuaded to assist in employment. The applicant commenced his predatory behaviour by enquiring as to whether she had a boyfriend, and later whether or not she permitted him to play with her breasts, and in due…

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 Regina v Percival

Details

AGLC: Regina v Percival [2001] NSWCCA 429
Case: [2001] NSWCCA 429
Decision Date: 19 October 2001

CaseChat Overview and Summary

The case of Regina v Percival was heard in the High Court of Australia. The appellant, Percival, had been convicted of multiple counts of sexual offences against young children. The central issue in the case was the sentencing of Percival, who pleaded guilty late in the proceedings. The primary legal question the court needed to address was whether the late plea of guilty should result in a reduction in sentence, and whether the case presented a special point of principle warranting the intervention of the High Court.

The court considered the principle that a late plea of guilty should not necessarily result in a harsher sentence, but also recognised that it should not result in a lesser punishment. The court examined the circumstances under which Percival entered his plea and the impact of this on the proceedings. Furthermore, the court deliberated on whether the case presented a special point of principle that would justify the High Court's intervention, particularly in relation to the sentencing of sexual offences against young children.

In its decision, the court held that the late plea of guilty did not warrant a special reduction in sentence, but also found that the sentence imposed was excessive. The court noted that while the appellant's late plea did not merit a lesser sentence, it was a factor that should be considered in the overall sentencing framework. The court concluded that the case did not present a special point of principle that would warrant the intervention of the High Court. Consequently, the court ordered a re-sentencing by a different judge, taking into account the appropriate mitigating factors, including the late plea of guilty.

The High Court's decision in this case underscores the importance of considering the timing of a plea of guilty in the sentencing process, while also emphasising the need to balance this with the gravity of the offences committed. The court's ruling ensures that the late plea of guilty is acknowledged as a mitigating factor without undermining the severity of the crimes.

Orders